[2024] UKUT 112 (LC)

Mr Fuller speculated that the disputed land at the south-west corner of the application land was probably excluded from the applicant’s title to permit access from Forest House to High Elms and to facilitate development of the Forest House site if necessary. In fact, a previous doorway which is now bricked up is clearly visible and on the plan of the Green Land a pathway from Forest House to the doorway can be discerned. We do not regard the possibility of the reinstatement of the doorway as a practical benefit of substantial advantage. No planning or development evidence was adduced with regard to the prospects of building on the garden of Forest House but bearing in mind that both the house and the wall are listed the likelihood of gaining planning permission is remote. It follows that the retention of the possibility of access is also not a practical benefit of substantial advantage.

Mr Mackenzie said that a major attraction for him and his family when they acquired Forest House was the far-reaching views over East London to the Thames and beyond to Kent. He considered that the two bungalows at numbers 1 and 12 were built below the top of the garden wall to preserve the views. We accept that, and we think that it is likely that the positioning of the town houses along the eastern boundary of the Green Land was the result of the same objective.

Mr Mackenzie thought that the new houses would protrude far enough above the wall to obstruct his view. We find that they will not do so, despite the difficulty we have in determining the exact relationship between the height of the new houses and the listed wall. What we can say with certainty is that the ridge line of the roof on the existing bungalow is above both the northern and eastern sections of the wall. When we inspected, we took in the view from the first and second floors of Forest House. We think that the roofs and rear elevations of the new houses will be visible from both of the upper floors. The nearer house will be partially obscured by trees. The far views from both levels will be unaffected, because the roofs when viewed from the upper floors of Forest House will be well below the horizon, and no higher than the row of tall conifers that line the southern boundary of the High Elms estate. We conclude therefore that there will be no loss of the view beyond High Elms.