[2024] UKUT 62 (LC)

The change to the architecture of the development

Having disposed of a number of things that the alteration covenant does not do, we come to what it actually does. It is a covenant not to :

“Add to or alter any building on the Property in any way so as to affect substantially the external appearance thereof.”

As we identified in paragraph 10 above, this is a well-designed development with a noticeable architectural theme and unity. The proposed alterations will substantially change the external appearance of the application properties, by adding the kitchen extensions and by the creation of a row either of dormer windows with Juliet balconies or of Velux windows in the sloping roofs of the properties.

Obviously what the residents of Dominion House will see when they look out of their windows will be a different view once the work is complete from what they see now. We do not regard the prevention of that change in itself as a benefit to the objectors. The original developer might have built the application properties with bigger kitchens and smaller gardens, and might have built them all with dormers or Velux windows in the roof, and no-one would have minded that at all.

The issue is whether the proposed change would be out of character with, or out of keeping with, the rest of the estate. Mr Jourdan KC referred us to Martin v Lipton [2020] UKUT 8 (LC) where the Tribunal modified a one house per plot covenant so as to allow an additional house to be built and said that the development would be:

“… entirely in keeping with the original pattern of development on the estate. If the new house is completed it will be difficult for someone unfamiliar with the conveyancing history of the estate to identify which two adjoining properties on Oakfield Lane stand on what was originally a single plot.”

So it will be here, say the applicants, because the kitchen extensions will not be noticeable and the loft conversions will be a visual unity and will look very much in keeping with the row of balconies on the back of the houses at right angles to the application properties, at number 1 – 7 Westferry Street.

Mr Asbury expressed the view that the kitchen extensions would have no impact on the street scene, and will not compromise the appearance of the eastern boundary of the estate; as to the loft conversions he takes the view that they are compatible with the character of the estate and do no harm to the appearance of the eastern arm of the development.

Mr Adams-Cairns in his report made the cogent point that a modification of the covenant for all eleven properties is likely, without more, to lead to a haphazard pattern whereby work is done on some properties and not on others, or on all the properties but at different times, so that for some while and perhaps permanently the roof line of the properties will look like a comb with missing teeth. In response to that the applicants have offered a covenant to do all the work at once.

We are not persuaded that such a covenant will be effective to prevent the piecemeal alteration of the application properties, nor even to ensure that they will all even eventually be altered in a consistent way or at all, for three reasons.

First, we accept that the applicants have all instructed their solicitor to offer that covenant. But we have not heard evidence of an agreed plan to carry out all the work in a single project by the same builder, which such a covenant must (at minimum) require. We do not doubt the appellants’ sincerity in offering to get all the work done at once but clearly they have not yet put their heads together to decide how to do so. It is not known who would do the work. Mr Ho said he had had a quote of £50,000 in 2022 for the loft and kitchen extensions together; he gave no evidence about up-to-date costings. Mr Onabanjo said he had budgeted £50,000 to £80,000 for the work. Ms Chuah said she has budgeted £50,000 for the loft conversion having noticed this figure in one of the documents associated with the case. She had not sought any architectural advice and said that she had no idea how much planning, architectural and party wall costs might amount to. Both Ms Chuah and Mr Onabanjo said they would prioritise the loft and might do the kitchen later. So there is at present no plan on the part of the applicants to get the work done as a single project. Making such a plan is a considerable undertaking, and requires everyone to have the funds and everyone to agree the plans and the timing and to engage the same contractor. This would not be easy to achieve.

Second, even if the applicants make a plan to get all the work done together (which would include a change from the current intentions of Ms Chuah and Mr Onabanjo), it may prove impracticable for them to put it into effect. Unexpected life events are notorious for scuppering the best laid plans of mice and men, and here we have four individuals all in very different family and (probably) financial circumstances. Any plan they make cannot be immediately put into effect because planning permission for numbers 22 and 24 still has to be obtained, quite apart from the matter of build over agreements for the drains and so on. The chances of one or more of those individuals not being able to make the necessary financial commitment, not to mention a commitment to the inconvenience of the work, at precisely the right time is significant.

Third, and following on from those two points, a covenant to do all the work together would be difficult if not impossible to enforce by injunction (rather than by damages). It is perfectly possible that one of the four individuals involved becomes ill, or has an unexpected change in priorities, or cannot agree on the same builder as the others (the reader can no doubt supply any number of possibilities). Equally, Mr Patel himself might for example start work, but encounter difficulties in getting all his properties finished. The builder, or other contractors, might not be able to finish. And so on. In any of those cases the likelihood of any of the five applicants being compelled by mandatory injunction to do the work, at a cost of what looks like at least £50,000 per property, is vanishingly small. So is the probability of the objectors’ getting an injunction to have works reversed (kitchen extensions demolished and lofts un-converted) in the event that the work is done on some but not all the application properties. They would certainly have to spend a lot of money and undergo a lot of stress and incur significant risk in any attempt to enforce the covenant.

So even if a covenant is given, we have no confidence in its effectiveness. And that means that to modify the alterations covenant inevitably exposes the objectors to the likelihood of piecemeal changes in the appearance of the application properties, whether by some kitchen extensions being done and not others or – more dramatically in terms of visual impact – by some loft conversions being done and not others (whether the original Juliet balcony design, more in keeping with Westferry Road, or the Velux proposal). The Velux windows would have a less dramatic effect than the balconies, but there are currently no Velux windows on the estate and the change would striking by contrast with the existing consistent appearance of the slate roofs. And that would be out of keeping with the rest of the estate and the surrounding street scene. What is currently a well thought-out development with a very unified appearance would become incoherent and gappy.

We regard the prevention of that scenario as a practical benefit of substantial advantage. That being the case we have no jurisdiction to modify the covenant.