[2024] UKUT 00164 (LC)

Fecha: 06-Jun-2024

Conclusions

Conclusion

81.

My determination of the application for modification of the covenant to permit development on plot A is that I have no jurisdiction because in impeding the development the covenant secures to the objector benefits of substantial advantage. My determination of the application for modification of the covenant to permit development on plot B is that I have no jurisdiction because in impeding the development the covenant secures to the objector benefits of substantial value.

82.

I am conscious that this application has been unsatisfactory from many perspectives. It is an irony that by juggling numerous planning applications and amendments, ostensibly to offer the Tribunal a menu of options for modification across the two plots, the applicant has created such an onerous burden for the beneficiary of the covenant, and any future beneficiaries, that modification is an unlikely prospect.

83.

In a concluding paragraph [109] of the 2020 decision, Mr Trott said:

“…While Mr Briant has satisfied the planners - at least for half the applications he has made – that the proposed development should be for a larger house or for two houses, he has not satisfied the different requirements of section 84. Nevertheless, the pattern of planning decisions indicates the application land is suitable for residential development and a more modest proposal, reflecting (but not necessarily replicating) what was on the application land before is more likely to succeed.”

84.

The applicant did not heed those words. None of the proposals I have considered “reflects” in any way the original dwelling on the application land. They were essentially re-worked earlier proposals, all involving severance of the site into two plots with large dwellings. Even had I been prepared to consider the proposal called REIN1 (implying a reinstatement dwelling), which does not have planning permission, it is a much larger building than the original and would occupy only part of the site so that concern over future development of the remainder of the site would still be a major consideration in assessing the practical benefits of the covenant.

85.

It is not for the Tribunal to advise the applicant how he should proceed from here, but there are strong messages resulting from this decision which need to be clearly understood. An application to the Tribunal is not a consultation process. Any future application on this site without planning permission to define it at the date of the application is likely to be refused. Applications and proposals presented in the alternative are likely only to lead to confusion and to diminish the prospects of success. Any proposal which involves severance of the site would need properly to take account of practical benefits in term of amenity which the covenant provides to the objector.

Diane Martin MRICS FAAV

Member, Upper Tribunal (Lands Chamber)

6 June 2024

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.