[2023] UKUT 00196 (LC)

The applicants submitted that there had been a gradual change to the character of the neighbourhood of the estate since it was developed in the early 1980s when the restriction was imposed. They said there are plenty of examples of additional structures such as conservatories and extensions to the front, side and rear of properties, together with conversions of attics and garages, which demonstrate that the restriction no longer fulfils its purpose and has become obsolete.

In his expert report Mr Roberts reviewed the Council’s record of planning permissions granted for properties within the Selbourne Estate, which is available from 2000 onwards. He established that between 2008 and 2022 planning permissions or certificates of lawfulness were granted for extensions and alterations to 10 properties in Kerfield Place, Cuthill Walk, Evesham Walk and Allendale Close. By his own observation where possible, and using Google Maps aerial view, he concluded that probably no more than half of those had been implemented. One of those yet to be implemented is a permission dated 11 November 2022 at 14 Allendale Close, for a rear ground floor extension and dormer loft conversion, very similar to the works proposed by the applicants. I heard no evidence as to why there may have been a delay in implementation, and in particular whether there is any issue over breach of the restriction.

In their joint witness statement the applicants provided satellite views which appear to show extensions, conservatories, roof lights and solar panels added to 24 properties on the estate in Kerfield Place, Cuthill Walk, Allendale Close, Love Walk and Evesham Walk. This number far exceeds the number of permissions recorded by Mr Roberts, which may be because the permissions pre-date the start of the online records in 2000, or because permissions were not sought. For example, the objector said that the conservatory to his house was in place when he purchased it in 2007 and had been constructed many years previously.

There appears to be only one example on the estate of an attic conversion with dormer roof extension. This is visible from the street at 15 Allendale Close. There is no record of permission in the planning system for this conversion, which may pre-date the records, and I have received no evidence of whether the owner secured a release from the covenant

Many rear gardens appear, from the satellite views, to have sheds in them, which would also be in breach of the restriction, and the applicants supplied photographs of two properties where fences have been erected around front gardens in breach of it. The applicants themselves have a shed in their garden, which they provided after moving in.

The objector stated that he had no objection to the applicants providing a shed, nor to them erecting a new higher fence along his boundary. But he made no other submissions on the matter of the restriction being obsolete.

The burden of proof that a restriction has become obsolete is a high one and it requires first a consideration of the original purpose of that restriction. Clauses 5 and 6 of the 1984 transfer are typical provisions for a scheme of development, which creates reciprocity of obligation and benefit. The applicants pointed out changes made to various properties within the estate but, with the benefit of Mr Roberts’ analysis of planning permissions and implementations, and from my inspection of the estate, I cannot agree that changes in the character of the neighbourhood are sufficient in number and so widespread that the restriction ought to be deemed obsolete. The overall purpose of the restriction in maintaining the general appearance of the estate is still relevant, and the application for discharge or modification under this ground fails.