[2025] UKUT 139 (LC)

Ms Pratt reiterated that the covenant was not an absolute prohibition on alterations, but a requirement for the permission of the objector to be obtained first. The objector is the original covenantee and is best placed to understand the purpose of the covenant, which she said was two fold. The first purpose was to maintain the character of the neighbourhood and keep the buildings of original and uniform design. She submitted that the first purpose can still be served generally because the requirement to seek the objector’s permission for alterations gives it the opportunity to review a proposal to ensure that it would not alter the original design of the property and upset the character of the neighbourhood. The applicants had alleged that there were sufficient porch constructions to have created a change in the character of the neighbourhood, but 12 properties across 10 roads (and only one in Urswick Road) is a small number spread across a wide area. They were examples where the objector had not been asked to give permission because it did not own neighbouring property benefiting from the covenant.

The second purpose was to assist the objector in guarding against unwanted changes to the character and amenity of its own property. The breach of the covenant had affected the objector’s property at No 18 by removing an enclosed porch and narrowing the entrance to a single door, reportedly causing the neighbours to suffer access issues and a decreased temperature at the property. The clause therefore continues to have a purpose in guarding against unwanted changes to the objector’s property. That purpose can still be fulfilled, as Mr Rome explained when he described how a similar situation had arisen on the estate at Green Lane, some two miles away, where a private porch had been constructed in a communal entrance to the objector’s property without its consent. The objector sent a letter before action, met several times with the owner and the builder and it was agreed in February 2023 that the porch would be restored to its previous communal arrangement. Mr Rome also referred to a similar breach at Valence Wood Road, also some two miles away, where a single porch was in the process of construction in a communal entrance. The objector had advised the owner that it would enforce the covenant if building works were not stopped and the communal porch reinstated. Negotiations were said to be in progress. It had been submitted by the applicants that these two examples were outside the immediate neighbourhood of the property but, in response, Ms Pratt pointed out that only three of the applicants’ 12 porch examples were located on roads nearby.

In summary, Ms Pratt submitted that there had been no change in the character of the property or the neighbourhood or other material circumstance by reason of which the covenant ought to be deemed obsolete. Changes in the character of the property had been made in breach of covenant and District Judge Goodchild would not have granted injunctive relief to remedy the breach of covenant if it was, or ought to be deemed, obsolete. The applicants had not sought to appeal the grant of injunctive relief so have impliedly acknowledged that it is not obsolete.

Responding to the application under ground (aa), Ms Pratt submitted that impeding the works secured practical benefits of substantial value or advantage to the objector in preserving the character of the neighbourhood and in guarding against unwanted changes to the character and amenity of its own property. The objector may only have a reversionary interest, but it has a duty to its tenants, who suffer from the impact of the works. Being able to preserve the communal porch is a practical benefit of substantial advantage which allows the objector to allocate housing to vulnerable people with disabilities. Restricted access constrains the future occupancy of the objector’s property.

Ms Pratt submitted that money would not be adequate compensation for loss or disadvantage suffered by reason of modification. District Judge Goodchild had accepted that damages in lieu of an injunction would not be an adequate remedy for the harms suffered by the breach of covenant, taking into account day-to-day harm said to be caused to the neighbours, and the lack of evidence from the applicants as to a suitable sum.