[2024] UKUT 00164 (LC)

The applicant invites the Tribunal to choose from a menu of seven possible developments, and suggests that three potential replacement dwellings for plot A (RD1, RD2 and RD3) should be considered first, and if modification is permitted for one of these then three potential new dwellings for plot B (ND1A, ND1B and ND2) should be considered. Should the Tribunal not approve any of the plot A proposals, then the plot B proposals should be considered independently. Should none of those be approved then the Tribunal is asked to consider what is described as a reinstatement dwelling (REIN1), although plans show that it would not have the same footprint as the original dwelling, and would leave plot B undeveloped.

This singular approach makes it difficult for the Tribunal, and the objector, to understand and have confidence in the applicant’s true intentions for development. At a case management hearing on 22 September 2023 I explained that the Tribunal would only rarely modify a restriction to permit development which was not clearly defined by a planning permission. It has been a particular feature of this application that the detail of the various proposed developments has evolved constantly. I warned the applicant that before permitting modification on ground (aa) it is necessary for the Tribunal to assess the likely impact on the objector of the proposed development, and therefore the scale of benefit secured by the restriction. For that reason only proposals defined by planning permission were likely to have any real prospect of success. An extended timescale was agreed with the parties to allow for decisions to be received on the latest planning applications, and then for the objector’s expert to provide a supplemental report taking those decisions into account.

By the time of the hearing the applicant’s four latest proposals had received planning permission, being RD2 and RD3 on plot A, and ND1A and ND2 on plot B. In each case the planning officer’s report and subsequent permission concerned only the single dwelling and plot under consideration. Reference was made to proposals for the alternative plot, but they were not considered together.

As an illustration of the difficulty in pinning down the detail of the applicant’s proposals, the drawings approved in January 2024 for RD2 had been amended from those submitted with the application to the Tribunal. The applicant did not attempt to hide the changes, and I allowed the approved version to be substituted in the application. Of more concern is the fact that the approved drawings for ND1A and ND2 show plot B to be rectangular, as in the site plan above, whilst the approved drawings for RD2 and RD3 each show plot A cut short to allow plot B to have an L-shape at the end of the garden adjoining Kestor. The applicant says that he removed the rear of plot A from the planning applications for RD2 and RD3 to prevent the planning authority from revoking permitted development rights over the area where he would intend to site some garden outbuildings.

Of the remaining three proposals without planning permission, RD1 received a recommendation for approval in January 2023, subject to a s.106 agreement not to erect a previously consented dwelling on plot B. The s.106 agreement was never completed, but the applicant says that as the permission on plot B has lapsed, planning permission is sure to be obtained easily. None-the-less, no planning permission exists for RD1 and for the reasons I explained to the applicant at the case management hearing in September 2023 I am not prepared to modify the covenant on ground (aa) without a clearly defined development proposal.

ND1B, is described by the applicant as a scaled back version of ND1A. By this logic he says that it is sure to be acceptable for planning permission. But, again, without planning permission I am not prepared to modify the covenant to permit it.

Finally, REIN1 has not been the subject of a planning application and so, again, the application on ground (aa) fails.

Attention is therefore focused only on the four proposals with planning permission.

Each of the development proposals would include outbuildings. Approved plans for RD2 and RD3 show a double garage and a cycle store adjacent to the entrance to Brook Lane, backing on to Kestor. Approved plans for ND1A and ND2 do not show any outbuildings. However, earlier versions of plans submitted with this application, when plot A was at full length, show a greenhouse, home office and garden store at the end of plot A, and separate garden studio and garden store buildings at the end of plot B. The applicant says he did not need to show the garden outbuildings on the plans submitted for planning permission, because they would be permitted development within the planning system, but he acknowledges that the provision of outbuildings is prevented by the restriction which would therefore require modification to permit them.

The approved floor plans show gross internal floor area at each level of the proposed buildings. These were agreed by the parties, as summarised below, for comparison with the original dwelling. The applicant makes the point that an additional 17 sq m of attic space in the original cottage could have been developed into habitable space by the installation of one or more windows, without contravening the restriction.

The summary of floor areas shows that each of the proposed dwellings has a considerably larger total floor area than the original dwelling. RD2, RD3 and ND2 each include more than 25% of the total floor space within basement accommodation.

The parties proceeded on the basis that the benefits of the restriction should be considered by comparing the effect on amenity and/or value of allowing one or more of the proposed developments, with the effect of providing a replacement building, or modern equivalent of the same size, on the original footprint of Smugglers Hyde. That consensus assumes that the covenant would not restrict a like for like reconstruction of what was destroyed by fire in 2007.

Mr Auld submitted that the 2020 decision, at paragraph [102], had already determined that prevention of the erection of two properties secures to the objector practical benefits of substantial advantage. The paragraph reads:

The applicant challenged Mr Auld’s interpretation of the paragraph and I agree with the applicant that the determination concerned only the particular two-house schemes considered in that earlier application.

The proposed developments for each plot will now be considered in more detail, together with the submissions of the parties, including expert evidence, on whether in impeding its implementation the restriction provides to the objector practical benefits of substantial value or advantage.