[2024] UKUT 62 (LC)

On 18 January 2024 the applicants’ solicitors wrote to the representatives of both groups of objectors offering, on an open basis, a number of conditions to be attached by the Tribunal to the modification of the covenant.

First, to address concerns expressed by the first group of objectors about the potential for nuisance to be caused by additional occupants of the application properties:

“the Applicants are prepared to agree to a covenant under s.84(1C) not to create any additional bedrooms in the property (with the intention being to use the additional loft space as a reception / living room), and not to let any individual property to more than 5 individuals and not to permit more than 6 individuals to occupy the property. That reflects the current tenancy arrangements and will mean that there is no increase in the number of individuals living in the Application Properties.

It was explained to us at the hearing that that offer should have been stated to relate only to HMOs; so where there is a single family in occupation the top room can still be used as a bedroom for a family member.

Next, to address concerns about disturbance from construction, about the appearance of the loft extensions, and about overlooking, the applicants offered to enter into what they describe as a licence to make alterations. A draft licence was attached to the letter, from which it appears that what is proposed is better described as a deed of covenant, whereby the applicants enter into obligations both to the freeholders (objectors 105 and 106) and to, as follows (we quote from the letter, not from the draft):

We take those last two points to refer to the whole project, ground floors and lofts.

The letter contained an offer of compensation for disturbance, due to the construction works, to those 26 of the objectors whose properties are closest to the application properties.

The letter also made an offer to modify the plan for the loft extensions:

“The Applicants do not consider overlooking to be a reasonable concern, given the distance between the Application Properties and Dominion House, and the number of windows already overlooking Dominion House. Consequently, their preference is dormer windows (as specified in the Application). However, if (contrary to the Applicants’ primary contention) the Tribunal considers that the ability to prevent further overlooking does afford to the Objectors a practical benefit of substantial value or advantage, the Applicants would be prepared to install Velux rather than dormer windows.

… The Applicants are prepared to agree to a covenant under s.84(1C) not to carry out construction work to further extend or increase the size of their properties or alter their appearance (aside from the loft conversion and single storey rear extension).

Finally the letter made offers of covenants to the freeholders, objectors 105 and 106, essentially to confirm what the applicants say is the case in any event, that the modification of the alteration covenant will not cause them to incur any additional liability or to be unable to provide the services they have covenanted to provide on the estate (we explain those points below).

It is fair to say that that suite of open offers was made late in the day, just a fortnight before the hearing. It was not entirely easy to ascertain which of those offers was intended as a modification of the original application and which were intended as fall-back positions in case the original application did not find favour with the Tribunal.

As we understand the position by the close of the hearing, the one point on which the original application is now modified is that the applicants offer to carry out all the loft conversion works at the same time; they suggest that that is a condition that the Tribunal should attach to the order modifying the covenant, and additionally offer the deed of covenant so that their commitment is enforceable as a matter of contract by all the objectors.

Otherwise the application remains unamended, but the offers set out in the letter of 18 January are made as fall-back alternatives. To summarise, they comprise

The applicants’ primary case remains that none of these safeguards is necessary and that their application should be granted in its original form subject to the one change in paragraph 34 above.