[2025] UKUT 139 (LC)

The property was first transferred into private ownership by a deed of transfer (“the transfer deed”) between the Mayor and Burgesses of the London Borough of Barking and Dagenham (“the Corporation”) and Stephen Francis O’Donnell (“the transferee”) dated 25 October 1982. Clause 4 of the transfer set out the transferee’s covenants and stated, so far as relevant:

“4.

THE Transferee for himself and his successors in title HEREBY COVENANTS with the Corporation TO THE INTENT that this covenant shall bind the property into whosoever hands the same may come for the benefit of so much of the remainder of the housing estate of the Corporation in which the property is situate as for the time being remains vested in the Corporation or any part thereof or such part thereof as may hereafter be disposed of by the Corporation with the benefit of this covenant that the Transferee and his successors in title will observe and perform the following restrictions conditions exceptions reservations and covenants:

...

(iii)

Not at any time to suffer or permit the exterior of the property or any part thereof (including the gardens):

...

(b)

to be altered or added to without the previous consent in writing of the Corporation (which may be subject to conditions) such consent not to be forthcoming unless the Corporation shall first have received written application therefor accompanied by such fee as may be prescribed from time to time by the Corporation

(iv)

Not to do or permit or suffer to be done on or in respect of the property any act or bring or allow to remain on the property any thing which may be or grow to be a nuisance to the occupiers of the adjoining or neighbouring property or which may otherwise cause damage in any way to or affect the stability of or depreciate or tend to depreciate the value of any adjoining property

...”

The property was purchased by the applicants on 11 December 2015. The applicants’ register of title states in the Charges Register that the transfer contains restrictive covenants, but does not provide details. The extract below, from title plan dated December 1982, shows the property and No 18 within a terrace of eight houses on Urswick Road.

It can be seen from the plan that the terrace between numbers 14 and 28 Urswick Road includes three pairs of properties with shared open porches and undivided front gardens, the property and No 18 being one of those pairs. The design was repeated for the terrace on Nuneaton Road and I observed during my walk around other neighbouring roads that it was typical of many terraced properties in the estate, including 30 to 44 Urswick Road, even though that is not obvious on the plan. Some designs of shared porch, for example in Nuneaton Road, had an arched external opening. Others, including the one shared by the property and No 18, had a square external opening with a decorative ledge feature on each side.

Photographs of the property and No 18 which pre-date the works show that the shared front porch was, unusually, enclosed by glazed double doors. These were in place when the applicants purchased the property in 2015. The photographs revealed that the glass was broken and the doors appeared to be in some disrepair. Mr Rome was unable to comment on the history of that earlier alteration, for which there was no consent on file, but he could confirm that the work would not have been done by the objector. The entrance through and behind the glazed doors had remained a communal one.

Ms Owinoron explained that she and her husband had suffered from anti-social behaviour by their neighbours at No 18 (“the neighbours”), with whom they shared the front porch. People coming and going through the porch were noisy and it became unkempt with litter. The property had an open parking area in front of the house, whilst the front to No 18 was enclosed with a timber fence and had only a pedestrian gate. The applicants suffered further nuisance from the neighbours using the open parking area as an access to No 18, from their children riding bikes and playing in that area and, on occasion, from use of the area by the neighbours to park a car. The transfer deed included reciprocal rights of access over any existing pedestrian accessway, which would apply to the shared path to the communal porch, but not the remaining frontage of the property.

The applicants saw that some other houses in the estate had added on private porches and in May 2021 they spoke to the neighbours to say that it was their intention to do the same. Ms Owinoron says that she and her husband believed the neighbours were owners of No 18. On 13 July 2021 the applicants’ builder began work and explained to the neighbours the detail of proposed works. The neighbours then contacted the objector. Later that day, whilst at work, Ms Owinoron received a telephone call from Ms Eleanor Small, who worked for the objector, saying that consent was required for the works. Ms Owinoron took Ms Small’s telephone number in order to ring her back after work. Meanwhile, she asked the builder to cease works.

Ms Owinoron was unable to get any response from Ms Small’s number when she rang back and was unable to trace her at the objector’s offices. The objector says that their former Landlord Services Officer, Mr Joe Costello, sent an email on 14 July 2021 requesting that the works cease. However, Mr Costello has left the objector’s employment and there is no evidence provided to me of the contents of that email.

On 15 July 2021 the applicants applied, through an architectural agent, to the objector’s planning department for a Lawful Development Certificate (“LDC”) for the construction of a front porch, assuming that this was the consent required. In cross-examination Ms Owinoron agreed that Mr Costello had contacted her in early August to say that the objector was not going to give consent for the works. She agreed that a visit was made to the property by Mr Costello, when voices were raised between him and the second applicant. The LDC was granted on 16 August 2021 and Ms Owinoron assumed this was the consent previously referred to by Mr Costello as being withheld.

The approved floor plan and front elevation drawings are shown below.

Messages were sent to the objector’s offices by Ms Owinoron on 26 and 27 August 2021 stating the applicants’ intention to proceed with the works, having received the LDC, and asking if she should inform “the council (housing)” before starting work and whether building control was needed. A reply provided the email address for building control. On 6 September 2021 at 15.45, in response to an email from Mr Costello, Ms Owinoron sent a copy of the LDC (which she described as “the council permission letter”). At 15.49 he replied: “I have received your email but am strongly advising you not to start the work as I believe you have been granted permission in error. My manager is looking into it as a matter of urgency.” At 17.43 Ms Owinoron replied: “I don’t agree that the planning permission from the council was an error because alot of people in the area have done the same thing and I don’t see any reason why mine should be any different.”

Ms Owinoron heard nothing further and gave instructions for work to proceed. By 18 September 2021 the works were completed. Preparatory work had involved dismantling the existing glazed doors enclosing the porch, the ledge walls on either side, and the glazing above the doors and the ledge walls. The new porch structure to the property is 1700mm wide and projects 800mm forward of the property. In front of No 18, the wall to the left of the entrance was made good as a vertical side to an open entrance measuring 930mm in width. The quarry tile floor of the original porch does not extend over the newly exposed floor area, which has been poorly repaired with cement. A narrow fence has been erected from the pavement through to the side of the new porch, down the centre of the previously shared concrete path. This has narrowed the pedestrian entrance to the front garden of No 18 so that wheelie bins cannot now be moved through it.

The photograph below shows the way in which the objector’s property at No 18 has been affected by the works. Mr Rome reported that the neighbours in No 18 now found the house colder without the original enclosed porch. However, on my site inspection it was apparent that the front door to No 18 is an exterior door of the sort present on the majority of the objector’s other houses, all of which have open fronted porches. He also reported that the neighbours suffered from a restricted access through the narrower porch which made it difficult to bring furniture in and out. On my site inspection I noted, and pointed out to Mr Rome, an accessibility handrail that is located on the left hand interior wall of the entrance to No 18, which I consider will contribute to difficulties in moving furniture through that area.

On 30 December 2021 the objector issued a claim for an injunction, requiring the applicants to demolish the works and reinstate the communal entrance. The applicants first instructed solicitors to represent them for the pre-trial review of the proceedings in June 2024, at which point this application was made. The history of the proceedings is not relevant to this application until on 15 July 2024 District Judge Goodchild at the County Court at Romford granted the objector both mandatory and prohibitory injunctive relief in relation to the breach of covenant at clause 4(iii) of the transfer deed. A transcript of the judgment was made available after the hearing.