[2024] UKUT 62 (LC)

Fecha: 15-Mar-2024

The objectors’ cases

The objectors’ cases

37.

The application is vehemently opposed by the first group of objectors on a number of grounds which we can summarise as follows:

Increased future nuisance from the occupants of HMOs;

Increased strain on the estate services and the service charge;

Damage to the trees at the back of the application houses;

Overlooking from the new balconies;

The change to the architecture of the development;

The breach in the building scheme and the risk of further development in the future.

Disturbance from the work done to carry out the proposed projects.

38.

We need to look in detail at each of those points and at the evidence put forward in respect of each.

39.

Objectors 105 and 106, the two freeholders of the estate apart from the houses, have played a limited role in the proceedings and chose not to attend the hearing. Their statement of case set out a number of reasons why they opposed the modification of the covenant.

40.

Their principal concern was that they are under an obligation to all the residents on the estate to enforce the covenants that burden each of the properties, if called upon to do so. The modification of the alterations covenant will make it impossible to enforce the original covenant, and so they will incur a liability to the other residents for failing to enforce it. They referred to the Supreme Court’s decision in Duval v 11 – 13 Randolph Crescent Limited [2020] AC 845. In that case a landlord had released covenants by some of its leaseholders and thereby put it out of its power to enforce those covenants, as it was obliged via-a-vis the other leaseholders to do.

41.

The freeholders’ concern is an understandable concern but misplaced. If the Tribunal orders the modification of the alterations covenant, the freeholders will not themselves have put it out of their power to enforce the original covenant, and Duval has no relevance. Rather, the Tribunal’s order operates against the property and the freeholders’ obligations to enforce covenants applies to the covenant as modified.

42.

The freeholders’ other points can be swiftly dealt with. They say:

That once the application properties are extended they will no longer be able to enter them to provide services under the terms of the transfer. Again, this is misplaced; any covenant by the freeholders of the application properties to give access to the freeholders will operate, unchanged, in respect of the extended buildings.

That they will not be able to exercise their rights to lay cables and conduits under the courtyards of the properties once built on; it seems unlikely that they would need to excavate the rear courtyards of these houses, but the applicants offer a covenant to allow them access (see paragraph 32 above).

That the applicants will be in breach of their covenant not to re-decorate the exterior of their properties; but, again, that covenant will apply to the buildings as modified.

That the projected works will increase the estate insurance premiums. It is difficult to see how that would be the case and no evidence is produced in support of that assertion, and we give it no weight.

That if the application properties are used as HMOs that will be a breach of the covenant in the lease to use each property only as a private dwellinghouse. As Mr Jourdan KC pointed out, that does not appear to be correct; an HMO is nevertheless a private dwellinghouse (C & G Homes Ltd v Secretary of State for Health [1991] Ch 365). In any event the alterations covenant does not prevent the use of any property on the estate as an HMO and the eight Patel properties are already so used.

That the increased number of residents will put a strain on the estate services. This concern matches that of the first group of objectors and we deal with the point below.

43.

With the exception of that last point that disposes of all the freeholders’ objections. For the rest of this decision, where we say “the Objectors” we mean the first group who are all residents on the estate. So far as the rest of their objections are concerned we have to look at the arguments and evidence, and to consider both the application in its original form (as modified by the proffered covenant to do all the loft conversions together) and at the covenants further offered to allay concerns.

44.

All the four individual applicants gave evidence, and they also relied on the expert valuation evidence of Mr Ian Asbury, BSc (Hons), MRICS. Two of the Objectors gave evidence, namely Mr Spender and Ms Ekaterina Venidiktova; the objectors also called Councillor Peter Golds CBE, Mr Khaled Ahmed-Ali, Mr Abhay Kini, and Ms Katerina MacLachlan. Mr Ruaraidh Adams-Cairns BSc FRICS provided expert valuation evidence for the Objectors. Mr John Byers FRICS ACIArb was appointed as single joint expert in respect of construction issues arising from the application, and he was not called to give evidence at the hearing.

45.

We examine the issues raised by the Objectors within the framework provided by the decision in Re Bass (1973) 26 P & CR 156, which is helpful in taking us through the requirements of section 84(1)(aa).