[2024] UKUT 00164 (LC)

This is a second application by Mr Briant to obtain the modification of a covenant which prevents him from developing his own land to the extent he would like, his first application having been refused in 2020(see Briant v Baldacchino [2020] UKUT 0206 (LC)). Mr Baldacchino objects to this application, as he did to the last.

The application land, 47 Brook Lane, is a plot extending to 0.14 ha, on which was sited a small partly thatched period cottage known as Smugglers Hyde. It was originally owned, together with the objector’s land, by Mrs Rosebud Proctor. It is understood that in 1987 she sold the whole to Mr and Mrs Stanley and is believed then to have had second thoughts. On 2 September 1987 Mr and Mrs Stanley sold the application land back to Mrs Proctor, subject to a covenant for the benefit of the part they retained (now 49 Brook Lane) in which, as transferee, she agreed:

A house known as Kestor was built on the retained land in 1989, and was purchased by Mr Baldacchino, the objector, in April 2014.

Mrs Proctor died in 2007 and shortly afterwards Smugglers Hyde was badly damaged by fire. The applicant, Mr Briant, purchased the application land in 2009. Much of the original fire damaged house has been demolished, leaving only a tiled two storey gable end section close to the boundary with Kestor.

Since purchasing Smugglers Hyde, Mr Briant has made 32 planning applications to Dorset Council, all for single dwellings, most of which have been sited so as to permit severance of the plot allowing two dwellings to be built, either side by side at the front of the plot along Brook Lane, or at the front and rear of the plot. 15 planning permissions have been granted of which one, granted in 2011 and renewed in 2014, was for a replacement dwelling very similar to the original Smugglers Hyde. The objector says he would support this proposal for a proposed modification, if indeed one was needed simply to rebuild what was previously there. The applicant says that an issue has arisen with the highways department, over encroachment of the original footprint onto the dedicated width of the adjoining lane, which precludes development of that proposal. A further permission for a single replacement dwelling, of larger scale, was granted in 2016, leaving scope at the rear of the plot for a further house to be provided. This proposal was considered in a 2019 application to the Tribunal (see below) but modification of the covenant to allow it was refused because of its overbearing size and proximity to Kestor.

As various planning permissions have been granted, Mr Briant has engaged in negotiations with Mr Baldacchino for a release or modification of the covenant, but Mr Baldacchino maintains that only a house which respects the original location and scale of Smugglers Hyde is acceptable to him, so the parties have never been able to reach an agreement.

In 2019 Mr Briant made an application to the Tribunal for modification of the covenant, under grounds (a), (aa) and (c) of s.84(1) of the Law of Property Act 1925, to permit construction of one or two of five dwellings with planning permission. The application was refused, but elements of the decision by the Tribunal (Mr Andrew J. Trott FRICS), Briant v Baldacchino [2020] UKUT 0206 (LC) (“the 2020 decision”) have been relied on by both parties in this application.

Mr Briant made a new application on 16 March 2023 seeking modification under grounds (aa) and (c) of s.84(1) to allow any one or two of seven dwellings to be constructed, of which only four have a current planning permission. Previously Mr Briant was represented by counsel, and had instructed an expert, but in this application he represented himself and adduced no expert evidence.

The objector was represented previously and in this application by Mr Charles Auld, who called Mr Nigel Jones BSc FRICS ACIArb of Chesters Harcourt in Yeovil to give expert evidence. Mr Jones has been a chartered surveyor for 43 years, working in Dorset and Somerset as a general practitioner in residential and commercial property. He has been a member of the President of the RICS’s Panel of Independent Experts and Arbitrators for 25 years. He was instructed by the objector’s solicitors to provide a valuation of Kestor with the benefit of the covenant, and his opinion of the loss or disadvantage to the objector, and impact on value of Kestor, if it is modified to permit implementation of one or more of the applicant’s proposals. Mr Jones’s first report was dated 27 June 2023, at which stage none of the applicant’s proposals had planning permission. His supplemental report, dated 4 January 2024, provided an update on market values but still pre-dated the granting of three of the four permissions now extant.

I made an inspection of the application land, and of the garden and interior of Kestor, on the afternoon of 6 March 2024. I was accompanied by the applicant and Mr Auld on the application site and also by the objector when I viewed his home and garden. The applicant had been asked to lay out lines to provide indicative footprints, ideally to be agreed with the objector, of his preferred combination of dwellings for the two plots and, if feasible, to provide flags indicating the top height of each building. This ambition was not achieved, although the applicant had positioned some structures and lines in an attempt to demonstrate the extent of his proposals. He referred me to the roof heights of neighbouring dwellings, as shown on his site section plans, as a guide to comparative heights of the proposed buildings.