[2023] UKUT 00196 (LC)

Fecha: 04-Jul-2023

Conclusions

Discussion of ground (aa)

59.

Taking the considerations required by s.84(1A) in turn, I conclude from the evidence of planning policy for permitted development and the grant of permission that the applicants’ proposed uses are reasonable. It is agreed that they are impeded by the restriction.

60.

Turning to the range of practical benefits which can typically be secured to a property owner by a restriction such as the one under consideration, these would include protection from loss of daylight or sunlight, protection of outlook and view, protection from overlooking and protection from noise. Mr Roberts considered each of these carefully and I agree with his conclusion that modification of the restriction to allow the applicants’ proposals would lead to no loss of value or advantage in terms of those benefits. I also agree with his conclusion that there is no evidence of pent-up demand for modifications elsewhere on the estate to suggest that a modification for the Property would be likely to lead to many more applications. However, if there were to be other applications for modification, each would be considered on its merits.

61.

It is the objector’s strongly held view that the restriction protects his property from the risk of structural damage caused by the applicants’ proposals, and he has put a figure on the prospective cost and/or loss to him of the most serious structural damage. He has rightly identified that he could be indemnified against such cost and/or loss, and the applicants’ expert has explained how such indemnification is provided by the party wall award and the 1996 Act. The applicants have gone further in offering to indemnify the objector, for a single occasion, against costs which might be awarded against him under the dispute resolution provisions of the 1996 Act.

62.

The purpose of the restriction was to limit changes to the appearance of the estate and to prevent new buildings. I do not accept that the restriction can be considered to secure the practical benefit of structural protection to the objector, because there is no evidence that it was intended to do so, but I am satisfied that the indemnity provisions of the 1996 Act, enhanced by the applicants’ warranty, would give him peace of mind.

63.

I conclude that the restriction does not secure any practical benefits of value or advantage to the objector.

Determination

64.

I am satisfied that ground (aa) is made out and that I have discretion to modify the restriction which impedes a reasonable use of the Property and does not secure the persons entitled to the benefit of it any practical benefits. It follows that ground (c) is also made out because the proposed modification will not injure those persons.

65.

The applicants have offered to indemnify the objector against an award of costs against him for a single occasion when he uses the dispute resolution provisions of the 1996 Act. I will include the proposed indemnity within the conditions for modification

66.

The following order shall be made:

The restrictions in the Charges Register for 4 Kerfield Place, London SE5 8SX shall be modified under section 84(1)(aa) of the Law of Property Act 1925 by the insertion of the following words:

“Provided that the development permitted under the Certificates of Lawfulness granted on 2 September 2021 under reference 21/AP/2439 and on 3 September 2021 under reference 21/AP/2438 and subject to the conditions attached thereto may be implemented in accordance with the terms, details and approved drawings referred to therein.

The condition of modification is that in the event of a dispute arising such that s.10 of the Party Wall etc. Act 1996 applies, on the first occasion only, no application for costs shall be made against the adjoining owner and any reasonable costs awarded against the adjoining owner shall be reimbursed by the building owners.”

67.

An order modifying the restriction shall be made by the Tribunal provided, within three months of the date of this decision, the applicants shall have signified their acceptance of the proposed modification of the restriction in the Charges Register of the Property.

Mrs Diane Martin MRICS FAAV

10 August 2023

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.