[2023] UKUT 00185 (LC)

This is a renewed application for the Tribunal to discharge or modify restrictive covenants (“the restrictions”) that burden the title to 52 Beechcroft Manor, Weybridge (“the Property”), preventing any alteration to the external plan or elevation of the building (“the building restriction”) and preventing its use for business purposes (“the business restriction”). A previous and very similar application was heard on 1 June 2022, at which time the applicants had applied for planning permission for a side extension but not received a decision.

In my decision on the previous application, Naidu & Anor v Morton & Ors [2022] UKUT 172 (LC), with regard to the business restriction I agreed with the objectors that the proposed uses described by the applicants, to work from home or run a business from home as self-employed people, were not impeded by the restriction and so I had no jurisdiction to modify that covenant.

Regarding the building restriction I found that jurisdiction was made out under ground (aa) of section 84(1) for me to modify the building restriction, which impedes a reasonable use of the Property and does not secure to the persons entitled to the benefit of it practical benefits of substantial value or advantage. However, I declined to exercise my discretion to modify the restriction before the plans for the side extension had been subject to scrutiny and determination through the planning process. Mrs Morton, the objector whose property 51 Beechcroft Manor (“No. 51”) sits adjacent to and at a higher level than the Property, had a particular concern over risk to the structural support that her property receives from the area of garden where the extension was to be built. Without properly scrutinised and approved plans, including the specification for a new retaining wall, it was inappropriate to make a conditional modification.

I concluded in paragraph 54 of that decision:

“If planning permission is obtained, the applicants will have the option of renewing their application to this Tribunal for modification. They will also have the option of engaging directly with the objectors, in particular Mrs Morton, to see whether the concerns underlying the objections have been satisfied by the permission and its conditions.”

Planning permission for the side extension was granted on 16 September 2022 and the approved plans included structural drawings of the proposed new retaining wall in the garden beneath No. 51. The applicants wrote to their neighbours on 24 September 2022 to invite discussions over any remaining matters of concern. Mrs Morton and her daughter asked a surveyor friend to look at the site in the light of the approved plans. It was subsequently confirmed that the surveyor gave them oral advice that the works should not affect No. 51 if the plans were adhered to. However, this was not sufficient to satisfy the ongoing concerns of Mrs Morton, or the neighbours at Nos. 53 and 54. A new application was made to the Tribunal on 25 November 2022 and notices of objection were received from the same three neighbours as in the previous application, all of whom were admitted as objectors.

I listed a case management hearing by video for 2 June 2023 and urged the objectors to nominate one of their number, or a representative, to attend on their behalf. They declined to do so and the hearing was attended solely by Ms Francis on behalf of the applicants. I directed that the application would subsequently be dealt with on the papers, which included witness statements from the objectors, after a requested period of time had been allowed for the applicants to file and serve further engineering drawings. In the event no new drawings were provided and I made an unaccompanied site inspection on 19 July 2023.

I do not propose to reiterate all the facts and evidence set out in my 2022 decision, but it is helpful to extract brief facts from it before reviewing the legal background and the application.