[2024] UKUT 62 (LC)

The preventions of additional strain on the estate services and the service charges

Mr Spender argued that if the covenants were modified, 11 additional residents on the estate would put greater pressure on the gym and the swimming pool. The pool, in particular, is limited to 25 occupants and so with 11 more people on the estate it would be full, and closed to people who want to use it, more often.

The covenant does not, as we said above, prevent an increase of 11 persons in the population on the estate. There is no occupancy limit in any of the properties that could prevent its occupation by say, a couple with five adult children. Nor does the covenant prevent any of the properties currently being occupied by, say, two people, being occupied by three, or becoming HMOs. The population of so large an estate must fluctuate frequently. It is unrealistic to focus on the 11 application properties as if they were the only source of that fluctuation.

We saw the gym and the swimming pool. Both are very nice. They are far too small to cater for more than a tiny fraction of the population of the estate. As we said above, the covenant does not prevent the introduction of 11 more residents on the estate, but even if it did we do not see that 11 additional residents, whether in the application properties or elsewhere, would make any discernible difference to the availability of the gym or swimming pool to any individual resident on the estate. So we see no substance in this point; the covenant does not secure any benefit in terms of the availability of estate facilities.

As to the service charge, this is apportioned on a per property basis. Mr Spender explained that this is regarded as unfair, because the HMOs with 5 or 6 residents pay the same as he or any other single leaseholder does, and so with the introduction of 11 more people that unfairness would be intensified. We fail to see how that is a practical benefit.