[2024] UKUT 62 (LC)

Disturbance from the work done to carry the proposed projects

Obviously the work proposed for each of the eleven application properties will generate significant disturbance at least for the nearby occupiers of St David’s Square. The extent of that disturbance is difficult to predict, as is its duration. For the reasons we have given above we think it vanishingly unlikely that work on all eleven properties will be started and finished in a four month period.

Some of the objectors’ evidence was designed to show that Mr Patel has a record of inconsiderate construction practices. Mr Spender in closing wisely confirmed that he did not rely upon that evidence.

It is now well-established that where a covenant is not specifically designed to prevent building works, the prevention of disturbance from construction is not a practical benefit of significant value or advantage: Shephard v Turner [2006] EWCA Civ 8, and for a recent example see Martin v Lipton [2020] UKUT 8. The alteration covenant in the present case does not appear to be designed to prevent disturbance from construction works, since it does not prevent alterations that do not affect the external appearance of the estate. The disturbance from the works proposed by the applicants is – on any account of the possibilities in this case – going to be a short-term rather than a long-term problem and therefore the prevention of that disturbance is not a practical benefit of significant value or advantage to the objectors. Compensation could be awarded for the disturbance; since we do not have jurisdiction to modify the covenant we need not speculate as to what that compensation might have been.