[2024] UKUT 00164 (LC)

The applicant has been at pains to explain how his latest proposals for a dwelling on plot A have been designed to minimise the impact on the objector of height, scale and overlooking. But even RD2, which is described as a two-three bedroom house and is more modest in size than RD3, has the potential for occupation as a five bedroom house in close proximity to the boundary with Kestor’s rear garden, at a raised level. The fact that 25% of the floor area is at basement level brings to the fore the potential impact on Kestor of disruption to the water table and to surface water drainage, although no evidence was adduced on this. In the planning officer’s report it was confirmed that the excavation required would be extensive, but the application site was said not to be affected by high ground water levels or surface water flooding risk. Retaining wall design and means of construction would be dealt with under Building Regulations.

From my inspection of the garden behind Kestor, looking over the application land at the gable end remains of Smugglers Hyde cottage, it is obvious that the greater length and mass of RD2 alongside the boundary, closer to it than Smugglers Hyde at ground floor level, would feel overbearing. The potential for occupation as a five bedroom house means that noise and intrusion from domestic activity in the outside areas of RD2, immediately adjacent to and above Kestor’s garden, would inevitably have an impact on the enjoyment of it. I acknowledge the point emphasised by the applicant that the long boundary on the other side of Kestor’s garden adjoins the back gardens of five properties on Haven Road, so it is already exposed to similar factors. But the fact is that the mature planting along that boundary, and the separation distance of the Haven Road dwellings from the boundary, mitigate the exposure to noise and disturbance.

I am conscious that since the objector purchased Kestor he has never had to live next to neighbours on the application land, so much of the garden tranquillity that he values so highly is derived from the lack of resident neighbours on that side. It is, therefore, important to consider only the additional impact which the applicant’s proposals would create over and above use of the application land for a single replacement dwelling in compliance with the covenant. In this respect, Mr Jones’s opinion on the view of prospective purchasers of Kestor is helpful.

It was Mr Jones’s opinion that neither the location of the proposed garage and cycle store buildings adjacent to the entrance to Kestor, nor the likely installation of a garden store and home office at the end of the garden adjoining Kestor, would cause any loss or disadvantage to it. But the proximity and bulk of the proposed houses for plot A, at a higher level, would cause significant loss and+ disadvantage and have an impact on value.

I agree with Mr Jones that the two key factors in this application for modification of the covenant to allow development on plot A are proximity and bulk. I also consider that the objector’s concerns about the construction of basement accommodation so close to the boundary are valid. The applicant has tinkered at the margins with dimensions and design features of the proposed dwellings, but the plain fact is that his proposed dwellings are significantly bigger than Smugglers Hyde and sited too close to the boundary with Kestor. I consider that in preventing either of the proposed dwellings RD2 and RD3 the covenant secures to the objector practical benefits of substantial advantage. I therefore have no jurisdiction to modify the covenant to allow development on plot A.