[2023] UKUT 00248 (LC)

Ms Sunita Surana lives at 21 Icklingham Road, on the exclusive Fairmile Estate in Cobham, Surrey. She previously also owned two plots of land next door, those of Nos. 17 and 19 Icklingham Road (together ‘the application land’) which are affected by restrictive covenants. In 2016 Ms Surana applied to the Tribunal under s.84(1) of the Law of Property Act 1925 to have those covenants modified to permit residential development. That application resulted in the Tribunal’s decision in Re Surana’s Application [2016] UKUT 0368 (LC), in which the Tribunal (Martin Rodger QC, Deputy Chamber President,and Mr Andrew Trott FRICS) permitted modification, limited to a specific planning permission or any renewal thereof, but prohibiting access to the houses through an established front hedge.

Having unlocked the potential of development, Ms Surana subsequently sold the application land to Indigo (Icklingham) Limited (‘Indigo’). Indigo made several further planning applications, before selling No. 17 Icklingham Road (‘plot 1’) to Mr Paul and Mrs Debby Howard, and No. 19 Icklingham Road (‘plot 2’) to Mr John and Mrs Elizabeth Baines.

The Howards and the Baineses are now building substantial houses on the plots. They wish to access the houses through the front hedge and to that end each applied to the Tribunal for a further modification of the restrictions. For the reasons I will explain below, in fact they each require a wider modification to regularise their respective positions.

Despite the applications being publicised and the many beneficiaries on the estate being notified, there is no objector to the Howards’ application (LC-22-495) on plot 1, and Ms Surana is the sole objector to Mr and Mrs Baines’ application (LC-22-496) on plot 2, which is adjacent to her house.

On 29 June 2023 I carried out an accompanied site visit of plots 1 and 2, observing the substantial houses currently under construction to roof level. I also viewed plot 2 from Ms Surana’s garden.

I heard the applications together on 24 August 2023. Mr and Mrs Howard were represented by Jacqueline Lean of counsel, Mr Baines spoke for himself and Mrs Baines, and Ms Surana represented herself, assisted by her brother. I am grateful to all of them, particularly for Ms Lean’s helpful skeleton argument and submissions.