[2025] UKUT 139 (LC)

The submissions of both parties on ground (a) have merit and the answer on obsolescence is not clear cut. The original purpose of the covenant in preserving the character of the neighbourhood, that is its visual amenity and appearance, is obvious and undisputed. Ms Pratt described it as keeping the buildings in their original and uniform design. However, the ownership structure of the neighbourhood has changed over the 42 years since the covenant was imposed, in locations and at times beyond the control of the objector. This was apparent to me when I walked the neighbourhood and saw alterations which have given rise to a variety of styles of doors and windows, bay window additions, porch additions and removal of fences so that front gardens could be paved and used for parking. Under the terms of the deed of transfer the objector could have enforced the covenant over any of the sold properties to prevent the alterations described. It has chosen not to do so and has thus allowed the appearance of the neighbourhood to change over time. Photographs of the property before the works show that, in addition to the unauthorised glazed double porch, it had a bay window addition and a paved front garden, so the appearance of the property had also changed before the works took place. It is ironic that the objector has sought through the proceedings to have the applicants reinstate what was already an unauthorised modification.

I consider that, by reason of changes in the character of the property and the neighbourhood since the covenant was imposed, the original purpose of the covenant in preserving the character of the neighbourhood as a whole can no longer be achieved.

However, turning to the secondary purpose of the covenant, in assisting the objector to guard against changes to the character and amenity of its own property, I can see that this has a particular relevance on the estate where communal porches are an original defining feature. Mr Rome confirmed that the objector only enforces the covenant where it retains ownership of an adjoining property. The existence of unauthorised changes to the property before the works suggests that, even when it does own adjoining property, the enforcement is selectively focused on changes which have a direct impact on the objector’s property.

The photograph included above shows the impact which the works have had on No 18. However unsightly the split porch arrangement looks, as Ms Owinoron pointed out in photographs attached to her evidence, and as I saw for myself, the situation is not uncommon on the estate. It is apparently possible to live with a narrower entrance created by a split porch and, whilst the change may be unwanted, for reasons that I have already explained I am not persuaded that the split porch at No 18 creates a particular problem for the neighbours. However, the applicants have gone too far in carrying out work to the objector’s property without consent, which is an act of trespass.

In contrast, the erection of a dividing fence has created significant problems for the neighbours. The original layout involved a wide communal path to the porch, with shared access rights. The gatepost which the applicants have moved to the centre line does appear from the title plan to have been originally on their property but, by moving it and erecting a boundary fence, they have deprived the neighbours of the benefit of shared access along the communal path.

It is obviously essential for the objector to guard against changes such as those which have taken place at the property and No 18, insofar as they have an impact on its tenants. The fact that the objector continues to take enforcement action in response to similar situations means that the secondary purpose of the covenant, assisting it to guard against changes to the character and amenity of its retained property, can still be achieved.

Overall, I consider that the covenant ought not to be deemed obsolete.

Turning to ground (aa), Ms Pratt submitted that the practical benefits secured to the objector in general by the covenant were the same as those relied on in the objection under ground (a), that is the ability to preserve the character of the neighbourhood and the ability to guard against unwanted changes to the character and amenity of its own property. For the reasons explained in my review of ground (a) above, I am persuaded that the ability to guard against unauthorised changes to its retained property is a practical benefit to the objector in this case. That benefit takes into account the objector’s duty as landlord to ensure that their tenants they do not suffer from the impact of such changes. Mr Thompson is correct in saying that the objector produced no evidence to support its additional submission that impeding the works in this application, and preserving the communal porch, secures practical benefits through the ability to allocate housing to a full range of tenants, including those with access difficulties. It is not obvious that the original glazed porch would have been suitable for disabled access, but the point is one to which I give some weight, bearing in mind that there is already an access rail in the porch to No 18.

I have heard no evidence on whether the practical benefit secured to the objector is of substantial value, and no evidence on whether money would be an adequate compensation for the loss which would arise from modification. Ms Pratt relied on the finding of District Judge Goodchild that damages would not be an adequate remedy for the harms suffered by the breach of covenant. Mr Thompson simply submitted that modification would cause no loss of value to the objector’s reversionary interest.

Ms Pratt submitted that the covenant secured to the objector a practical benefit of substantial advantage, but I am not persuaded that there is sufficient evidence to call the advantage substantial. However, even where the advantage of a benefit is not substantial, I only have jurisdiction under section 84(1) to modify a restriction if money would be an adequate compensation for the loss suffered by modification. The lack of evidence on this from either party, supported by the conclusions previously drawn by District Judge Goodchild, lead me to conclude that this case is a rare example of one where the advantage of a practical benefit cannot be measured in monetary terms.

I consider therefore that I do not have jurisdiction to modify the covenant to permit the works.