[2023] UKUT 00196 (LC)

Mr Roberts made an internal and external inspection of Property and the objector’s property on 5 April 2023. He considered the practical benefits of the restriction to the objector in preventing potential impacts on sunlight and daylight, on outlook and loss of view, overlooking, and on noise and peacefulness. None of these factors had been raised by the objector, but they are typical benefits secured by a restriction, so it was helpful to have Mr Roberts’ opinion on them.

Commenting first on the proposed loft conversion and dormer roof extension, Mr Roberts noted that it would not extend above the existing roof line or forward of the eaves, and would be in a north east facing elevation, so would have no impact on sunlight or daylight to the objector’s property. It would only be visible from the objector’s first floor room by leaning out of that window. The view from the dormer window would be out over the objector’s rear garden, but that garden is already overlooked by the applicants’ rear window at first floor level, and also by the rear windows of No.3 and No.6, so there would not be any new loss of privacy. The provision of an additional bedroom in the loft could lead to an increase in the number of residents at the Property, and possibly an awareness by the objector of more noise. Mr Roberts noted that the timber stud party wall between the properties would be enhanced by the loft conversion, so that use of that room should not lead to additional noise leakage into the objector’s property.

Regarding the single storey extension, which would sit alongside the objector’s conservatory, Mr Roberts did not anticipate interference with sunlight and daylight to the objector’s property, and noted that it would not be visible from inside the conservatory. It would be visible from the objector’s first floor room, as the applicants’ garden is now, but this would not result in a loss of view or outlook.

Mr Roberts assessed the market value of the objector’s property at £740,000. He acknowledged the difficulty in finding evidence of property sales sufficiently similar and close in time to demonstrate whether neighbouring ground floor extensions, such as proposed by the applicants, might have had an influence on value. However, based on his own experience of the greater London residential market, and general market principles, he could see no grounds to consider that the proposed works would cause diminution in value to the objector’s property, which already has a conservatory extension. Mr Roberts considered separately the likely market impact of the attic conversion and concluded that whilst some prospective purchasers might be put off, others would see it as evidence of an opportunity for a similar conversion at the property they were considering, which would enhance its value not diminish it.

Finally, Mr Roberts considered whether modification would be a ‘thin end of the wedge’ leading to further applications for modification coming forward on the estate. From his review of other development on the estate, which has taken place despite the existence of the restriction, he considered that modification would not release any pent-up demand.

I have said earlier that none of the above matters were raised by the objector, whose sole concern was the risk of structural damage to his property should the applicants be permitted to carry out their proposed works. He pointed out that structural enhancement would be provided to the Property as part of the proposed works, but not to his property, and was concerned at the deformation calculations which he saw for the first time with the design drawings attached to the applicants’ witness statement. The objector said that even with the best documentation and building controls, mistakes can be made during construction and he wanted the applicants to provide him with a renovation warranty to protect his property value and the interest of his mortgage lender. He also mentioned the risk to the public who walk under his first floor flying freehold should the loft conversion cause problems to his property.

The applicants submitted in rebuttal that a right to structural integrity and safety is provided to all members of society by building regulations, not to an individual property owner as an advantage of a restrictive covenant. Notwithstanding that view, they submitted that they had behaved reasonably by obtaining a party wall survey, obtaining structural analysis from the project manager, confirming that there would be ‘constructor insurance’ and obtaining statements from the project manager that building regulations will be followed.

Moreover, the applicants asserted that the objector has provided no evidence at all for his assertions.