[2024] UKUT 00001 (LC)

Mrs Rogers appeared as a witness of fact at the hearing and explained that she and her husband had often spent their holidays in Bude, and in 2017 they purchased the property and moved from Reading to the town. They quickly decided to extend both the kitchen/dining area and the third bedroom on to a raised area at the rear of the property. After Building Control approval was secured and a contractor was engaged, work was scheduled to commence at the beginning of May 2018.

Mrs Rogers explained that the access to the rear of the property was by means of a narrow path at the side which was unsuitable for delivering materials and machinery for the project. To resolve this problem Mrs Rogers decided to investigate the possibility of gaining access from Redwood Close, across a small strip of planted land between the western boundary of the property and the roadway. This approach would necessitate the removal and reinstatement of the boundary fencing. After approaching two of the neighbours in Redwood Close, one of them informed Mrs Rogers she would not be able to use the land for deliveries. A further neighbour advised that the land belonged to Mr Roy Dinshaw. Mrs Rogers was aware that Mr Dinshaw’s son, Anthony Dinshaw was a close neighbour in Redwood Grove. She visited Anthony Dinshaw and explained her predicament. Mr Dinshaw knew Mrs Rogers’ contractor and agreed to consult his father about the land. Mrs Rogers also expressed an interest in purchasing the land at the rear of her garden.

A few days later, Mr Roy Dinshaw called at the property. Mr and Mrs Rogers showed him their plans and took him to the rear garden to discuss where the footings and foundations would be. Mrs Rogers said that Mr Roy Dinshaw returned later that day and told her and her husband to carry on with the work as planned. Mrs Rogers inquired about buying the land at the rear and Mr Dinshaw advised her to take up the potential purchase with his son Michael, who would deal with the matter.

Mrs Rogers said that the building work commenced and continued through the summer of 2018. Periodically Mr Anthony Dinshaw would visit and on these occasions he would chat with the builder, Mr Ward and with the other workmen. When the work was completed Mr Anthony Dinshaw visited again and, according to Mrs Rogers, seemed genuinely impressed with the finished project.

Mr and Mrs Rogers were simultaneously corresponding by e-mail with Mr Michael Dinshaw regarding the possibility of buying the land at the rear. Mrs Rogers appended two e-mails to her written statement which were sent in relation to the prospective purchase. On 18 July 2018 she wrote:

Mrs Rogers explained that the negotiations to purchase the land came to nothing, Mr Dinshaw having stopped responding to her enquiries.

By 2022 Mr and Mrs Rogers had decided to move, had secured another property, and had accepted an offer for their own. In August of that year the purchasers’ solicitors raised a query about the covenant. Mrs Rogers said that until that point they had no knowledge of the covenant but realising that the extensions had breached it, she and her husband decided to write a personal letter of apology and request a retrospective consent. They visited Mr Anthony Dinshaw and his wife, to deliver the letter and according to Mrs Rogers they were very accommodating. Mr Dinshaw said he would refer the matter to Mr Michael Dinshaw and Mr and Mrs Rogers supplied copies of the plans, building control consent and photographs.

In November 2022 in response to an approach from Mr and Mrs Rogers solicitors Mr Michael Dinshaw advised that he and his family were taking legal advice. This was still the case a month later. Mr and Mrs Rogers then took the property off the market and pulled out of their intended purchase. The next contact from Mr Michael Dinshaw was on 9 January 2023 and further e-mails ensued over the next two months. Frustrated with the lack of progress Mr and Mrs Rogers applied to the Tribunal for discharge of the covenant on 24 March 2023.

In her witness statement Mrs Rogers set out her views on the objections to the discharge of the covenant. In particular she could not understand how the removal of the covenant would have any impact on the objectors, two of whom lived elsewhere and the third (Mr Anthony Dinshaw) could not see the property from his house.

Mrs Rogers disputed that the objectors’ claim that they did not know about the extensions until August 2022. She considered that the extensions did not impact the land in the ownership of the objector and noted that since 1980 the land to the rear of the property had been developed. She believed the extensions to be ‘nothing out of the ordinary’.