[2024] UKUT 00164 (LC)

In the 2020 decision (at paragraph [109]) it was concluded that “…a more modest proposal, reflecting (but not necessarily replicating) what was on the application land before is more likely to succeed.” I asked the applicant to confirm which of his proposals meets that criterion and he said that it is RD2, which he describes as a two-three bedroom dwelling. His preference is for RD3, which is bigger and better appointed, but he leaves it to the Tribunal to decide which satisfies ground (aa). The applicant says that the design of RD2 is an improvement over the original dwelling because it has a hipped roof, a lower ridge height at the gable end, greater separation from Kestor at first floor level, no door in the elevation adjoining Kestor, and only high level windows at ground and first floor. He says it would therefore enhance the visual amenity of Kestor by comparison with the original dwelling and reduce overlooking into the property, thereby improving privacy.

In the planning officer’s report recommending grant of permission the development is described as “…a two bedroom (with ground floor study) two storey dwelling…”. The planning officer comments on the basement rooms as follows: “As these rooms are not principal living rooms, they are not required to afford the same light and outlook requirements as principal rooms (such as bedrooms and living rooms) and the poor outlook they would have is not a reason to refuse the proposal and addresses the Planning Inspector’s concerns.” This refers to the refusal on appeal of a similar planning application made in 2021 which showed two bedrooms in the basement. The planning inspector had commented that the outlook from, and light to, bedrooms in the basement would be poor and not allow acceptable living conditions.

RD2 is little different from the earlier refused application, except that the basement rooms have been renamed. The objector says that it is, in reality, a five bedroom dwelling when the ground floor study and two basement rooms, with their adjacent bathrooms, are taken into account.

In terms of impact on the enjoyment of Kestor, the objector fears particularly the impact of two new large family houses proposed to be built in a divided application site that sits at a higher level than his own property. Regarding proposals for plot A, his objections do not differentiate between RD2 and RD3, but he says that the generally greater mass of the proposed houses will be visible from Kestor and the greater capacity for residents will have an impact in terms of noise and intrusion, particularly from any buildings at the end of plot A, in the area excluded from the plot as shown on the approved plans. When the objector and his wife bought Kestor in 2014, it was the tranquil setting and the long garden which instantly appealed to them, and the end of their garden is a peaceful haven. They were reassured that the existence of the restriction would protect them from development over and above reinstatement of the original derelict dwelling.

The objector is concerned that the basement rooms will require noisy mechanical ventilation or air conditioning systems and also that excavation for a basement so close to his boundary will cause disruption to the water table and potential for waterlogging in his (lower level) garden where he has a fish pond and a patio. Water run-off and drainage from the proposed development is a concern in general because of the proposed increase in hard surface area.

In terms of the impact on value of Kestor, it was Mr Jones’s opinion that the market value of Kestor if it adjoined a new dwelling of the same size and position as the original cottage, would be £725,000. As things stand, it adjoins a derelict cottage in a site with a long history of planning applications, leading to uncertainty about future development and also the prospect of a dispute over potential modification of the restriction. These factors would cause a diminution in value to £650,000, but the benefit of the covenant might add £10,000 to lift value to £660,000.

In his report in June 2023 Mr Jones commented, with justification, that it was hard to determine exactly what was proposed for plot A, particularly in regard to outbuildings at the far end of the garden, which had been excluded from the area subject to a planning application. At the date of his supplemental report on 4 January 2024 there had still been no decision on the application for RD2 so his comments remained general. Mr Jones described Kestor as a relatively ordinary modern house, with orientation of the principal living accommodation to the rear looking over its long rear garden, which is its really valuable and attractive asset. Any substantial intrusion into the garden from an adjoining property would be a loss and disadvantage to Kestor. The higher level of the application land is particularly relevant.

Mr Jones considered that the proposed garage and cycle store buildings, which would back on to Kestor at its entrance, would not cause any loss or disadvantage to it. Neither would the proposed garden store and home office if they were to be built at the end of the garden adjoining Kestor. He considered that the main factor affecting value would be the proximity of the proposed houses on plot A, and their greater bulk, extending further along the boundary with Kestor than the narrow end of the original dwelling. The difference in levels between the application site and the garden of Kestor would cause the development to feel overbearing. Moreover, any development on plot A would leave the uncertainty of what might subsequently be built on plot B at an even higher level. It was his opinion that all of the proposed schemes, whether in isolation (leaving uncertainty as to the other plot) or in combination would cause significant loss and disadvantage to the objector.

Mr Jones did not differentiate between RD1 (not considered here), RD2 and RD3 in making an assessment that depreciation from his hypothetical value of £725,000 (with a modern but equivalent replacement dwelling) would be in the range of 10-15% (£72,500 to £108,750). He retained this view, even while acknowledging that RD2 and RD3 would cause less overlooking than the original dwelling. I asked him if he thought any other purchaser of the application land would be satisfied with confining themselves to development proposals for a small single dwelling in such a large plot. Mr Jones acknowledged that this would constrain the range of interested purchasers, probably to retired couples rather than families. The risk and uncertainty of future proposals and applications is why he considered the benefit of the restriction alone was no more than £10,000. With the benefit of control comes the prospect of controversy. Prospective purchasers of Kestor would be buying as a family home and would not want the cost and inconvenience of defending the restriction.

On behalf of the objector Mr Auld submitted that the applicant is obsessed with building two houses and that his approach is to keep pushing until he gets his way. His proposals for plot A are always sited close to the boundary with Kestor and always extend further east along that boundary than the original dwelling, which would have an impact on the enjoyment of Kestor’s garden. Lights from the rear elevation of the house would be visible from the end of the garden, and the orientation of the rooms would enable overlooking of the summer house. A dwelling sited closer to the road, where the garage and cycle store are shown, would preserve the integrity of the garden.

Mr Auld submitted that the evidence of the applicant should be viewed with caution. He cannot be relied on to produce consistent documents, as some in the Tribunal’s bundle were different from those in the objector’s bundle, nor can he be relied upon to provide transparency in interpreting his proposals. His submissions, and his posts marking out boundaries on site, have focused only on the proximity and scale of the proposed buildings at first floor level, omitting to describe the full scale of the ground floor elements. His site section plans, showing the comparative heights of surrounding houses in Hillside Road, are misleading because they don’t allow the perspective of distance. The applicant did accept that the last point had some merit since the plans were not produced using computer generated imaging (CGI).

Mr Auld further submitted that the applicant’s extraordinary approach of using the Tribunal as a consultation process, described in the 2020 decision as “scattergun approach” is not excusable for a litigant in person who has already had the benefit of legal representation (albeit only after his application was made) and a decision on a similar application.