[2024] UKUT 189 (LC)

Penina Avenue rises up away from the A392, as it passes along the Gannel Estuary on the southern edge of Newquay. It is part of a residential development built in the mid-1970s and known originally as the Mellanvrane Lane Estate. The houses are either single storey bungalows or chalet bungalows (with accommodation in the roof space) and a particular feature of the houses on Penina Avenue and the adjoining roads to the west is that they have generously sized rear gardens.

Mr and Mrs Lackey have owned 14 Penina Avenue since April 2015. The objectors, Mr and Mrs Pearce, live in the neighbouring property, 16 Penina Avenue, which they purchased in December 1980. The rear garden of No 14 has a boundary with Wych Hazel Way and on 9 March 2023 Cornwall Council granted outline planning permission for a new two bedroom detached dwelling to be constructed there, with access onto Wych Hazel Way.

Mr Lackey says that he and his wife intend to down-size to the new smaller property and sell No 14 to pay for the new house and fund their retirement. Following receipt of advice on a previous application in 2022, the proposed dwelling was redesigned to a smaller footprint and reduced from three bedrooms to two. The bedrooms will be on the ground floor, which is to be set into the bank of No 16’s higher level garden, so that only the first floor will be visible to the neighbouring properties.

The plan below shows the relationship of the two neighbouring properties and the site of the proposed new dwelling. The properties on Penina Avenue, along with others on neighbouring roads, are all subject to a restriction imposed when the land was sold for development in 1973 which impedes erection of the proposed new dwelling. At that time No 14 was known as Plot 29, Mellanvrane Lane Estate.

On 18 October 2023, on the advice of his solicitor, Mr Lackey made an application to the Tribunal under ground (a) of section 84(1) of the Law of Property Act 1925 for discharge of the restriction impeding his proposed development. This was subsequently amended to an application for modification under ground (a) to permit the proposed development. In accordance with the Registrar’s directions, Mr Lackey served notice of his application on a total of 58 local residents at 21 addresses in Penina Avenue, 11 addresses in Wych Hazel Way, 11 addresses in Chichester Crescent and 15 addresses in Inner Tide Lane (a recent development shown indicatively on the undeveloped area in the plan above).

Initially two objections were received, but one was withdrawn leaving Mr and Mrs Pearce as the sole objectors.

I made an inspection of the application site and the surrounding area on the afternoon of Wednesday 24 April 2024. A hearing of the application took place in Truro Combined Court Centre on the morning of Thursday 25 April 2024 under the simplified procedure. Neither party was represented, and no witnesses or experts were called to give evidence.