[2023] UKUT 00185 (LC)

In my decision of 4 August 2022 I concluded at paragraphs 45 to 47:

“45.

Overall, it is my conclusion that the building restriction secures specific practical benefits to Mrs Morton at No. 51 but no discernible practical benefits to the objectors in general. If the practical benefits secured by the restriction are of substantial advantage to any of the objectors, then ground (aa) will not be made out. I must therefore consider whether the benefits secured to Mrs Morton are sufficient to be described as substantial.

46.

A substantial advantage in the context of a s.84 application is generally held to be one which is “considerable, solid, big”, as explained by Carnwath LJ in Shephard v Turner [2006] 2 P&CR 28, at [19] – [23]. Although I take seriously the benefits secured by the building restriction for Mrs Morton, I am conscious that the controls provided within the planning system are there to ensure that the adverse impact on neighbours of proposed development is mitigated by a framework of national policy and guidance. The additional protection provided by the restriction is important but, in this case, I do not consider it to be a substantial advantage.

Would money be an adequate compensation for the loss or disadvantage caused by modification?

47.

Whether money would be an adequate compensation for the disadvantage which Mrs Morton might suffer from modification I cannot judge in the absence of a planning permission with its associated conditions. If a planning permission is obtained which recognises within its conditions the importance of structural engineering drawings for excavation and reconstruction of the retaining wall, and those conditions are followed rigorously, then in principle modification should cause no permanent loss or disadvantage requiring monetary compensation. There would inevitably be temporary disruption and disturbance during the construction phase but, in an appropriate case, the Tribunal would have no difficulty in assessing a small sum as compensation for any such temporary inconvenience.”

In paragraphs 51 to 53 I determined:

“51.

I am satisfied that jurisdiction is made out under ground (aa) 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. But this is only the first step in my determination.

52.

In Alexander Devine Children's Cancer Trust (Respondent) v Housing Solutions Ltd (Appellant) [2020] UKSC 45, the Supreme Court confirmed that while an applicant may be able to make out one of the grounds of section 84(1) it is then necessary for the Tribunal to decide whether it should exercise its discretion to modify.

53.

A lack of planning permission is not necessarily fatal to an application for modification, as demonstrated by the decision of the Tribunal (Mr P D McCrea FRICS) in Smith v Goodwin [2021] UKUT 145 (LC) where a conditional modification was granted. In this case, however, the structural concerns affecting Mrs Morton at No. 51 require specialist engineering input, for which a conditional modification would be inappropriate. I am therefore not prepared to exercise my discretion to modify the building restriction before scrutiny and determination through the planning process have taken place.”

The submitted floor and elevation plans upon which I based my determination in paragraph 51 have now received planning permission, together with two additional plans, dated August 2022, which provide a specification for the construction of the new retaining wall in the garden. Mrs Morton has received informal advice that the plans, if followed, should ensure that her property will be unaffected by the works. She has not suggested that this advice cannot be taken at face value.

In paragraphs 48 and 49 of my previous decision I explained how I had taken into account the provisions of s.84(1)(B) concerning the development plan, the declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area, together with the period at which and context in which the restriction was created.

I am therefore satisfied that I should now exercise discretion to modify the building restriction under ground (aa) to allow the applicants to construct their side extension in accordance with the planning permission.

I am now also satisfied that modification should cause Mrs Morton no permanent loss or disadvantage requiring monetary compensation. The restriction does not secure the practical benefit of preventing temporary disturbance during the construction period and Mrs Morton has made no claim in this respect.