[2023] UKUT 00196 (LC)

This is an application for the Tribunal to discharge or modify a restrictive covenant (“the restriction”) that burdens the title to 4 Kerfield Place, London, SE5 8SX (“the Property”), preventing any alteration to the exterior appearance of the building and the construction of additional buildings. The applicants, Mr Doherty and Mr Zoccheddu, wish to exercise permitted development rights to provide a single storey extension to the rear, and a loft conversion with rear dormer roof extension, both of which would be in breach of the restriction.

The restriction is contained in the second schedule to a transfer dated 8 June 1984 (“the 1984 transfer”) between The Mayor and Burgesses of the London Borough of Southwark (“the Council”), Wates Second Land Limited (“the Company”) and James Jonathan Platts (“the Purchaser”) for the benefit of the Council and all other purchasers of lots within the scheme of development on the Selborne Estate.

Around mid-2021 the applicants began to engage with their immediate neighbours and showed them architectural drawings of the proposals. They received support from all neighbours apart from Mr and Mrs Pashkin, owners of the adjoining property 5 Kerfield Place, which was at that time occupied by tenants. After some email exchanges the applicants proposed a deed of mutual release to the Pashkins, who initially agreed to consider a limited release subject to payment of compensation. They also requested a party wall award.

Communications then lapsed until the applicants initiated the engagement of a party wall surveyor in July 2022. The agreed surveyor made a party wall award dated 26 September 2022. Mr and Mrs Pashkin did not challenge the award but stated that if work commenced they would seek an injunction because of the restriction.

The application to the Tribunal was made on 30 October 2022. An approved publicity notice was served on the Council, the 17 houses in Kerfield Place, and two houses located to the rear of the Property in Daneville Road. One objection was received from Mr Pashkin (“the objector”), who provided a witness statement but stated that he did not wish to attend a hearing.

I made an inspection of the Property and 5 Kerfield Place on 28 June, accompanied by the applicants and the objector in their respective properties. I also walked to see other properties in the estate where extensions and loft conversions have taken place.

The hearing was attended by the applicants, who represented themselves and called Mr Peter Roberts FRICS CENV to give expert evidence. Mr Roberts is a partner with Dalton Warner Davis LLP in London, and an RICS Registered Valuer with 28 years’ post-qualification experience. I am grateful to him in particular for his helpful evidence on technical aspects of the proposed works and on the party wall award.