[2024] UKUT 112 (LC)

In paragraph 13 we described the bungalow at number 12. The internal arrangement of the rooms is not material to this application. Mr Medley’s proposal is for two houses arranged over three floors. They are Neo Georgian in style, with brick elevations, double hung sash windows, and shallow pitched roofs behind stone faced parapet walls. At basement level the houses are joined, effectively semi-detached, while above ground they are detached. The basements will contain a car parking space, a swimming pool, hot tub, changing rooms and a plant room. It is proposed that the ground floors will accommodate a hallway, dining room, study, WC, and a kitchen/living area which spans the full width of the rear part, overlooking the garden. The first floor will have 3 bedrooms each equipped with an ensuite bathroom. The master bedroom has a dressing room as well. A lift will serve all three floors.

The plans show rear gardens that are essentially trapezoidal in shape but with a smaller rectangular area at the side of each house. The average depth of the garden of the northern house is 7.62 metres and its southern counterpart has an average depth of 9.15 metres. The principal, western elevations appear to be set back about 0.8 metres further from the road than the existing bungalow although the southern elevation of the southern house is about a metre closer to the road than the equivalent elevation on the bungalow it will replace. However, the planning application depicts a 900 mm brick wall topped with railings at the boundary and a 1,890mm brick wall enclosing the rear garden of the southern house.

The planning permission that Mr Medley wishes to implement (EPF/0931/19) was granted on 28 May 2021 and permits the demolition of the existing bungalow and the construction of two three bedroom houses on basement, ground and first floors. This was a revision to an earlier application (EPF/2758/17) and was subject to a section 106 agreement signed on 9 April 2019. An application for a variation of the permission was refused on 17 February 2022 and an additional application for a variation was granted on 2 November 2022.

Both the Tribunal and the objectors encountered some difficulty in working out what exactly Mr Medley has planning permission to build and therefore what modification he wants. At the invitation of the Tribunal Mr Medley submitted an additional witness statement and gave evidence on the second day of the hearing about the relevant plans and the heights of the new houses. He confirmed that his application is for the modification of the restrictive covenants so as to permit the development depicted in the more recent versions of plans TFU 210 and TFU 211. We were not assisted by the use of the same plan references on different iterations of the plans. Fresh plans attached to the new witness statement showed the houses with an additional, second floor; they were said by Mr Medley to relate to a proposed further modification which had not yet been through the planning process.

We were provided with information about the relative heights of number 12, the proposed houses and the townhouses. The following measurements refer to height above sea level. The ridge of the roof of number 12 is 84.41 metres and the roofs of the proposed houses are 87.28 metres and 86.80 metres, so the new houses will be 2.4 and 2.87 metres respectively taller than the bungalow at number 12. The highest point of the northernmost town house (number 11) measures 89.24 metres. The new houses are to be built in to the slope of High Elms so that the small front gardens will be below street level. This lessens their impact on their surroundings and explains why a boundary wall is required.