[2025] UKUT 00339 (LC)

The applicants’ submissions followed the format adopted by the Tribunal in Re Bass Ltd’s Application (1973) 26 P&CR 156, whereby the Tribunal posed a series of questions to assist in its determination of the application.

The first of these questions is 'Is the proposed user reasonable?' Mr Taylor submitted that the proposal is for a residential use in a residential area and that as planning permission has been granted there is an evidential presumption that the proposed user is reasonable. The objectors did not address these questions but in my view it can be answered in the affirmative.

The second question is 'Do the covenants impede that user?' It is common ground that the development of the Bungalow cannot proceed without breaching the covenant.

The next question is 'Does impeding the proposed user secure practical benefits to the objectors?' I am going to bracket that question together with the fourth question which asks ‘'If the answer to question three is affirmative, are those benefits of substantial value or advantage?' Mr Taylor answered these questions under a series of headings which broadly related to the grounds of objection raised by the objectors:

Mr Taylor said that it was illusory that the covenant secured a practical benefit to the objectors in the sense that it prevented them being exposed to construction noise, disruption and inconvenience. Any loss of amenity would be short term and for that reason any practical benefit would be insubstantial. Nuisance was already covered by an additional covenant in the 1999 transfer. Mr Taylor observed that the covenant did not prevent all building works and noted that the Workshop had been extended in 2013 and that the current owners of 3 Teversham Road had expressed an interest in acquiring the Workshop and demolishing it to extend their garden. There was thus a realistic prospect of some form of development on the land and a degree of disturbance as a result.

The objectors acknowledge that were the covenant to be modified to allow the development they would have to ‘put up with’ the disruption arising from the construction work. They say that the construction traffic would need to come up Brunswick Court resulting in interruption to their access and ruining the amenity. They would suffer safety and security concerns as well as the loss of a quiet environment which was beneficial to those working from home. They are also concerned that the unknown timing and impact would affect their ability to sell their houses in the future.

It seems to me that the disruption that would result from construction activities is a legitimate concern for the objectors. It had been recognised by the planning authority that vehicular movements were likely to be problematic and in granting planning permission it stipulated that a detailed traffic management plan was to be in place before works could begin. It does not however deal with the noise and mess that will probably ensue. I accept Mr Baker’s evidence that the time frame for construction will be relatively short, probably less than 12 months including demolition and I agree with Mr Purkiss that the most intrusive work will be the early part of the project when the old building is removed, and the new structure put in place. Mr Taylor is correct in his assertion that the covenant does not specifically protect the objectors and that separate redress for nuisance is available to them. The covenant is not intended to provide protection from the temporary disturbance and inconvenience arising as a consequence of development. It would not have prevented the owners of 3 Teversham Road from demolishing their house and rebuilding it on the site of the workshop or in the position chosen for the Bungalow. Disruption from short term building operations is a regular occurrence in densely developed towns and villages and in this particular instance could arise if any of the objectors decided to extend their own houses. Accordingly, I take the view that although the restriction does confer a benefit on the objectors in that it prevents disruption, but in doing so it could not be characterised as being of substantial value or advantage.

Mr Taylor said that the construction of the Bungalow would be a clear improvement to the immediate area as it would replace a tired workshop. The covenant, in impeding the development of the Bungalow, disadvantages the objectors because the entrance to Brunswick Court is dominated by the existing building which is in a poor and deteriorating condition.

The objectors take an opposing view. They say that the addition of an extra house on the burdened land would change its character and there would consequently be an adverse effect on Brunswick Court. The objectors submit that Mr Baker, despite living at 3 Teversham Road for more than twenty years, only decided to try to modify the covenant once he had moved away. This was because Mr Baker recognised the considerable impact of his proposal but now he will not be affected by it. The objectors also say that the impact of additional traffic will be considerable, taking into account not only the prospect of delivery vehicles but the likelihood that a three bedroomed house might have four adult occupants each with their own car. The objectors refer to the planning applications for the Workshop made in 2005 and 2010 which they said were granted with the observation that it was ‘for the benefit of the dwelling house’ and ‘to protect the amenities of the adjoining residents’. The decisions were not submitted in evidence. They did submit a photograph of a car (a medium sized hatchback) parked in the roadway to demonstrate the narrowness of Brunswick Court and the difficulty of passing another car.

There is some force in Mr Taylor’s comments about the state of the Workshop but I disagree that the building is in poor condition. It is only twelve years old, but the Land is overgrown, and lack of use has led to an appearance of neglect. In my view, a new, slightly smaller building set 10 metres further east of the position of the Workshop will enhance the setting of the three houses in Brunswick Court by making it feel more spacious.

Given the small size of the Bungalow (105m² or 1,130 ft²) it is unlikely to appeal to a family with adult children. In my view the target market would probably be a downsizing couple or retirees and although the plan shows that it would be possible to park four cars on site in a ‘tandem’ arrangement it is unlikely that the occupants would have more than two cars. The occupants of the bungalow would have no reason to venture in their cars beyond the point where they access their parking area which is about 25 metres from the point in Brunswick Court where the roadway does a sharp right turn. The objectors have also said that the roadway is used as a space where their children play and they were doing so at the time of my inspection. Whilst I do not doubt the convenience of a relatively safe space for outdoor activities immediately adjacent to the houses in Brunswick Court, the primary purpose of the roadway is for vehicular access. I do not regard any minor restriction of this amenity as a serious objection and in any case if the children ventured no further than the entrance to the Bungalow, they would still have plenty of room to play.

Similarly, I doubt that the addition of a small number of extra cars using the roadway will make any material difference to the objectors’ ability to easily traverse Brunswick Court. There is no evidence to suggest that there will be any more traffic emanating from the Bungalow than might be the case if the Workshop was used with moderate intensity. It follows that the quietness of Brunswick Court is unlikely to be affected by the proposed development and protection for the owners of 1-3 Brunswick Court is provided by existing covenants not to cause a nuisance or annoyance and not to park in or obstruct the Estate Road. In preventing the proposed development the restriction therefore does not secure benefits relating to the character of Brunswick Court itself which are of substantial value or advantage.

Mr Taylor submitted that the owners of 2 and 3 Brunswick Court would suffer no impact on their privacy and views. He relied on the evidence of Mr Purkiss. Mr Taylor acknowledged that the position of Mr and Mrs Cucknall’s house at 1 Brunswick Court was slightly different. The impact would be slight given the siting of the garage and proposed boundary treatment. The possibility of loss of privacy would be limited to views from ground level within the garden of the new dwelling, looking (through vegetation) upwards towards the ceilings of the upstairs front rooms at 1 Brunswick Court. Accordingly, any loss (which Mr Taylor did not accept) would be upon the privacy of a person who is standing immediately in front of those windows.

The objectors, and in particular Mr and Mrs Cucknall at 1 Brunswick Court, say that the proposed development will interfere with their privacy and views as they would adjoin a neighbouring garden, windows and doors rather than the back of a wooden garage. The upstairs windows at the front of 1 and 2 Brunswick Court would be visible from the kitchen and master bedroom windows of the Bungalow. The roadway in which the objectors’ children play would also be overlooked by the kitchen and lounge windows.

I think it unlikely that that the occupants of 2 and 3 Brunswick Court will experience any loss of privacy or views. The positioning of these houses around the corner from the Bungalow will ensure that any views from the bungalow will be obliquely from the kitchen window or obscured by the garden fence of 5 Teversham Road.

I agree with Mr Taylor that the occupants of the Bungalow, were they to stand at their kitchen or master bedroom window, would be able to see someone standing at the first floor windows of 1 Brunswick Court. There may well be some screening provided by vegetation in due course but that will take time to mature. The separation between the buildings would be about 18 metres (60 feet) and the lack of privacy is likely to be more acutely felt by the occupants of the bungalow who will be overlooked. From my inspection the room in 1 Brunswick Court which will be most affected is currently used as a guest bedroom (although that use might change). Although there will be a slight loss of privacy, I do not regard the prevention of its loss in the circumstances of this case as a practical benefit of substantial value. The other first floor windows in 1 Brunswick Court, in order of their proximity to the Bungalow, relate to an en-suite bathroom, a stairwell and a further bedroom, none of which will be affected to any significant degree. In my view none of the ground floor windows at 1 Brunswick Court will suffer any material loss of privacy. I note that the first floor windows at the rear of 3 Teversham Road look directly into the first floor of 1 Brunswick Court from a distance of about 50 metres and at the rear there is a separation of about 25 metres to the houses in Alec Rolph Close.

The objectors say that the sharing of maintenance costs of the Estate Road will become unfair if the Bungalow is developed as the costs are currently split four ways. Even if the share allocated to 3 Teversham Road were to be divided between the Bungalow and the 3 Teversham Road the arrangement would remain unfair as each would bear 12.5% and the occupants of 1-3 Brunswick Court would be left with 25% each. They also say that construction activity will damage the road.

The applicants do not share this view. They say that the fairness of the division of the maintenance costs is not a practical benefit secured by the covenant. Any of the existing owners could increase the burden on the Estate Road by increasing the frequency of use or changing the type of vehicle they use. They also say that the existing arrangement is unfair as the owners of 1-3 Brunswick Court make use of the whole of the road while the owners of 3 Teversham Court and the Land do not.

Finally, the applicants submit that even if the preservation of fairness were to be considered a practical benefit it is not of substantial value. Mr Baker said in his witness statement that the road had needed no maintenance other than the cutting back of vegetation in the last 20 years. The road surface appears to be in a sound condition and not in need of attention but even if that were not the case and significant repairs were required the owners of 1-3 Brunswick Court would not be greatly disadvantaged by having to pay 25% of the cost rather than 5% less.

In my view the preservation of fairness in the distribution of liability for the maintenance costs is a practical benefit. However, given the infrequency of costs arising and the lack of opportunity for any other development in Brunswick Court, it seems to me that the necessity to pay 25% rather than 20% should not be regarded as being of substantial value.

The objectors are also concerned that the development of the Bungalow could alter the context within which any future applications for modification or discharge of the covenant. In other words, it would create an unfavourable precedent. The objectors envisage developments at 5 Teversham Road and at each of their respective houses, leading to up to 8 or 9 houses accessed from Brunswick Court.

The applicants submit that there is simply no space in Brunswick Court for further development should the Bungalow be built. They also regard the objectors’ view that their own houses could be subdivided or more intensively developed as fanciful, given their age and character.

The precedent effect of modifying or discharging a covenant (or colloquially ‘the thin end of the wedge’) is an argument that the Tribunal often encounters in applications of this nature. In Martin v. Lipton [2020] UKUT 0008 (LC) the Tribunal (Martin Rodger QC, Deputy Chamber President, and Mr Paul Francis FRICS) said:

“Applications of this type are fact sensitive, and it cannot be assumed that the outcome of one case will be mirrored in the outcome of a different application, even one seeking a very similar modification on the same Estate.”

It is therefore no more likely that a subsequent application would meet with success. The development of the garden of 5 Teversham Road would be problematic since the site does not have the right to use Brunswick Court for access, nor is it bound by the restriction. Modification of the restriction to permit the Bungalow to be built would therefore have no relevant precedent effect as far as 5 Teversham Road is concerned.

The applicant rightly says that the age of the covenant is not relevant to the Tribunal’s jurisdiction to modify the covenant but might be pertinent to the exercise of the Tribunal’s discretion. The objectors submit that the covenant is recent and there has been no material change in the layout of the estate envisaged by the covenant. I will return to this aspect of the application later in the decision.

The fifth, question arising from Re Bass Ltd’s applicationis not relevant to this application. The sixth question is concerned with compensation and asks ‘If the answer to question four is negative, would money be an adequate compensation?’ In other words, if the practical benefits are not of substantial value or advantage, can their loss be compensated for in money?

The final question is concerned with compensation if the answer to question five is affirmative.