[2024] UKUT 112 (LC)

We regard these practical benefits as distinct but related. The prevention of fences, walls and planting at the front of the properties on the Green Land helps to preserve a sense of openness and space which is an important amenity so close to central London. There is a pleasing lack of clutter and the estate remains true to the design ethos envisaged and enabled by the inclusion of the covenant. The introduction of walls, railings and hard landscaping around the proposed development will in our view lead to a perception that the new houses are much closer to the road even if that is not actually the case. This will primarily affect the properties on the Green Land and will make the estate feel enclosed and over-developed.

In her witness statement Mrs Fuchs-Khakhar described High Elms as a separate entity from the built-up areas of Chigwell. On our inspection we were struck by a sense that High Elms is a part of rural Essex, there being undeveloped land to the north, west and south. Whilst in terms of their architectural form the proposed houses might be appropriate neighbours to Forest House, their scale and positioning are, in our judgement, inappropriate for this location. Mrs Morley said in her objection that the High Elms estate was very carefully planned. At the time of the disposal of the Green Land the planning authority refused an application on the basis that the proposal was not part of an acceptable scheme for the whole of the Forest House estate. The terrace of townhouses with its Georgian design cues was undoubtedly a product of that requirement. In our view if the current development proposals were permitted the careful positioning of the original development would be lost.

One colourful detail that emerged during the hearing was the extent to which Mr and Mrs Morley involved themselves in the Green Land. Mrs Fuchs-Khakhar, who with her husband Mr Khakhar bought her house in 1994, remembers Mrs Morely walking down the road looking at the town houses “very much the lady of the manor”; Ms Boak remembers that “Mr Morley came regularly in wellies to look up and down the street to see if anything changed”. Certain things have changed, of course; a number of the town houses have extended to the rear, and there are bushes outside number 12. Number 12 has been considerably extended; Mr Medley in cross-examination said that it had “doubled in size” and a comparison of the plan to the 1967 conveyance and the current layout indicates that that may be true, although it is not apparent from the road because the extra rooms added at the back are hidden behind the wall that connects the house to the arbour and the garage. Whether express consent was sought or given to those changes is not known; importantly there have been no changes to the Green Land that are visible from the road except the bushes outside number 12. There are no walls or fences, nothing visible on the roofs, and no visible extensions, whether because the Morleys refused consent or because no-one tried to change anything.

We have already mentioned the small area of land at the north-west of Mr Medley’s title, adjacent to gates across the road, the ownership of which is disputed. This land is currently used as a turning point for vehicles that do not have access to the area beyond the gates. Mr Medley proposes to enclose it behind gates. This will remove what the townhouse residents view as a useful facility. It was also submitted that the residents of the new houses will find their basement parking, accessed by a car lift, bothersome and will inevitably take to parking on the paths and verges, causing congestion and contributing to the sense of over development. Whilst the prevention of these two changes might not, on their own, constitute much of a practical benefit, when taken into account with the other effects of the development they reinforce the perception that the proposals are ill-suited to the High Elms estate.

The development itself represents a striking intensification of the use of the application site. The proposal is for two substantial family homes where only one relatively modest bungalow currently exists. The houses will have basements with pools and underground parking. The garden space will be very limited with little open outlook, being hemmed in by a tall wall and mature evergreen trees. Mr Medley has in our view simply tried to squeeze too much on to the site. Understandably he has sought to maximise the development value of his land but in our view he has gone too far. The solutions he has employed to shoehorn as much floor space as possible into the scheme have forced him into compromises such as the boundary walls which have resulted in a development that would damage the special locality of High Elms.

In our judgement the preservation of the open, uncluttered nature of the estate and the prevention of over development are practical benefits of substantial advantage. That is not to say that the benefit applies uniformly across the Green and Pink Land. We view the houses now on the former as being most affected by the proposals and it is solely on the Green Land (the houses numbered 1 to 11) that the covenant confers a substantial advantage.