[2024] UKUT 00001 (LC)

All three of the objectors had submitted witness statements which were almost identical. At the hearing Mr Michael Dinshaw confirmed that he and his brothers as beneficiaries of his late father’s estate, were the owners of land adjacent to the property. The land is depicted in the lighter shade on the plan that follows paragraph 4 above and has the benefit of the covenant. It comprises an area of tarmac road which extends about halfway along Redwood Close, a small area of grassed land at the rear of the property, a planted border adjacent to the western boundary of the property and a narrow sliver of land adjacent to the eastern boundary of 5 Redwood Close. Mr Dinshaw explained that the other land that was originally in his parent’s ownership had been split in to ten plots and sold off.

Mr Michael Dinshaw said that the purpose of the covenant was to facilitate control of what was built on the land, and at the hearing he recalled an instance where his father had refused consent for plans submitted by a prospective purchaser and the sale had collapsed. In his view the wider purpose was to protect the character, visual amenity, and environment of Redwood Close and Redwood Grove. It also provided confidence to the owners of those properties that none of these attributes were at risk.

He said that as the transfer which included the covenant is a publicly available document it was not plausible that Mr and Mrs Rogers and their solicitor had not read and understood the entry when the property was purchased in 2017. He considered that the covenant could not reasonably be considered obsolete because it had been entered in to relatively recently, there had been no material change to the density and character of the area and it was beneficial to the owners of the adjoining land. He concluded that Mr and Mrs Rogers chose to build the extensions in breach of the covenant and had benefitted from the enhanced amenity and the increased value of their property. Mr Dinshaw said that Mr and Mrs Rogers had deliberately built the extensions to a size just within the maximum allowed for the purposes of permitted development. By so doing, they had avoided the scrutiny that a planning application would have entailed, particularly in relation to whether the development met local and national policies and whether it would cause unacceptable harm. It also avoided the need to notify neighbours, a factor which would have brought it to the objectors’ attention. He thought that the short time frame between the purchase and the start of the works indicated that the breach was part of a deliberate strategy.

In Mr Dinshaw’s view any changes to the covenant would constitute the ‘thin end of the wedge’ and would be likely to cause problems in the future. To his knowledge, no other alterations had been sought or made to the other properties built on land that was originally part of Langfield Manor. He said that if the covenant was discharged it would open a ‘Pandora’s Box’ of other applications and he and his family would be facing frequent litigation to defend their rights. Copies of other transfers said to contain similar covenants were appended to his witness statement, but from my reading of the documents I found no evidence that the other properties were burdened in the same terms as the property.

He requested that the Tribunal refuse the application and order the removal of the extensions. He also proffered that if the Tribunal allowed the retention of the extensions and the improved property were to be sold, he and his brothers should have the right to review and refuse any contract of sale and to further have the right to purchase the property on the same terms. He considered that damages should be paid on the sale of the property (presumably to a third party) based on the sale price less the 2017 acquisition value. Compensation in the sum of £50,000 was sought.