[2024] UKUT 00164 (LC)

I note that the report of the planning officer, in which grant of planning permission for ND2 was recommended, contains an apparent discrepancy over the number and location of bedrooms, and therefore of the significance of living conditions in basement rooms. Although ND2 is described as a three bedroom single storey dwelling, only two ground floor rooms are labelled on the approved floor plans as bedrooms. A planning inspector had refused a previous similar application on plot B because of the lack of satisfactory living conditions for future occupants with regard to outlook from and light to basement bedrooms. In this proposal bedroom 3 on the ground floor has a window in the northern elevation which was considered by the planning officer to have less than acceptable levels of light as a result of being only 2.5m from the boundary fence and wall to 157 Hillside. The rooms in the basement were also considered to have a limited outlook and to receive limited light, but the report stated: “However, the rooms would not be principal rooms and would not require the same standard of outlook as bedrooms or living rooms and it is considered that the home gym, media room, utility room and en suite proposed are acceptable and there is no objection on the grounds of poor living conditions.” The report continues: “The proposal would offer acceptable outlook to the other principal rooms and it is considered that the restricted outlook from the bedroom window on the north elevation is not reason enough to warrant refusal of the application.”

The position with the approved plans for ND2 is therefore not dissimilar from that already discussed in connection with RD2 on plot A, where the relabelling of basement rooms has been sufficient to get around concerns previously expressed by an inspector on the adequacy of living conditions in those rooms. The likely reality is that the basement room in ND2 labelled ‘home gym’, with its en suite shower room, would be used as bedroom 1 and would leave two of three principal rooms with inadequate living conditions – a proposition for which planning permission may have been refused.

My deductions from this analysis support the submission of Mr Auld that the applicant has been relentless in pursuing planning applications for two large houses on the application site, making minor changes to proposals for each plot then resubmitting as new and separate applications, to the point where planning resistance has been overcome. I note a comment in the planning officer’s report dated 10 January 2024, for the committee which considered the long planning history on the site and then approved RD2, RD3 and ND2, stating that the significant number of applications on the site is a result of the applicant attempting to satisfy a covenant on the land. In my view the applicant has not demonstrated any real desire to satisfy the covenant, only a desire to maximise the built area of two dwellings on the application land, with some lip service paid to their potential impact on the objector.

Although ND2 is a single storey building, it is a house with a substantial footprint sitting on the highest ground in the application land. However, sitting behind a 2m high fence, its mass and its lights would be less visible from Kestor’s garden than those of ND1A and, by virtue of the separation distance across plot A, the impact of noise and intrusion would not be a serious concern. It is arguable that the covenant does not secure to the objector practical benefits of substantial advantage in impeding a modification to permit ND2 and I would hesitate to refuse modification based on these impacts alone.

The main thrust of the argument against modification for development on plot B is that it would allow severance of the site and leave plainly open the question of what will happen next on plot A, causing uncertainty and concern in the mind of a prospective purchaser of Kestor and therefore depreciating its market value. The very fact that the applicant has achieved planning permissions with some question marks over detail would give depth to such concern. The planning system is not a bulwark upon which such a purchaser could rely.

Mr Jones expressed the opinion that prospective purchasers of Kestor today would be deterred by the need to become involved in protracted negotiations and/or proceedings for proposals on the application land in order to benefit from the covenant which protects the amenity of the property. He placed a value of £660,000 on Kestor as it currently stands, by comparison with a prospective value of £725,000 if there were a modern replacement dwelling of similar location and size to the original Smugglers Hyde cottage. That reflects a loss of value of 9% caused by the risk and uncertainty of future redevelopment along with the unattractive prospect of defending the benefit of the covenant.

In considering the impact of modification on plot B, it was Mr Jones’s opinion that development of ND1A (the only proposal with planning permission when he wrote his report) would cause depreciation of 8-10% because of its visibility and dominance from Kestor’s garden, rising to 10-15% if it was developed in isolation leaving uncertainty over the future of plot A.

I found Mr Jones’s base evidence on market values more helpful than his percentage ranges, and I accept his opinion that the value of Kestor is currently £660,000, by comparison with the prospective value of £725,000 with a replacement dwelling on the application site in compliance with the covenant. I consider that modification of the covenant to allow development of ND2, the least intrusive of the proposals for plot B, would cause no uplift in the value of Kestor from the figure of £660,000 because, in severing the application site, it would remove none of the uncertainty over development on the adjacent plot A. It would therefore sustain the loss of £65,000 from the potential value of £725,000. At 9% this is a substantial loss of value.

The parties agree that the benefit of the covenant should be considered against the benchmark of a compliant modern dwelling and I find that in impeding the proposals for plot B the covenant does secure to the objector benefits of substantial value, leaving me no jurisdiction for modification.