[2025] UKUT 209 (LC)

In order for the Tribunal to reach a judgment on whether it has the jurisdiction to modify or discharge the covenant it must decide whether ground (aa) is satisfied. In other words, does the covenant, in the circumstances of this application, provide Mr and Mrs Hardy with practical benefits of substantial value or advantage. They say that the covenant ensures that openness at the boundary, light, privacy, a sense of space and views are preserved. All of these were created by the original layout of the development. My assessment will therefore examine each aspect. My comments refer to the conservatory since the garage works cannot possibly have any impact on the attributes identified by Mr Hardy.

At the moment the flank wall of Welbeck House and the garage/utility room external wall of Roche House are separated by a gap of 2.05 metres along their entire length. Were the conservatory to be completed that separation will not change, but the distance over which the buildings run beside each other will be extended by 4 metres to 13.2 metres. The conservatory has an eaves height (measured externally) of 2.1 metres which will be lower than the eaves height of the single storey part of Roche House which contains the garage and utility room. The conservatory has a roof which slopes away from the boundary. The houses are separated by a fence 1.75 metres in height which already creates a relatively narrow passageway down the side of each building. In my view there is sufficient spacing between the two buildings that the conservatory will not result in a material difference to the sense of openness at the boundary. This will be the case in the passageway and in the garden of Roche House when looking towards Welbeck House. The covenant permits a garden shed on the boundary and depending on its size and position could potentially create a worse effect than the conservatory. Mr Hardy rightly pointed out that no rational person would install a shed in the position occupied by the conservatory.

Neither party adduced any evidence to demonstrate any loss of light although Mr Francis said that in his professional view the conservatory would not hinder the amount of light entering the utility room window at Roche House. I am inclined to agree with him. The utility room is lit by light from a glazed door into the garden, and by light from the adjacent breakfast room. From my inspection I could discern that the foremost part of the conservatory will be aligned with the rearmost part of the utility room window. In addition the side wall of the conservatory will only project 0.35 m (about 1foot 2 inches) above the fence and at a distance of a metre beyond the fence. It seems to me that Mr and Mrs Hardy’s fears of light loss are understandable but ultimately unfounded.

No evidence was provided by either party in relation to any loss of privacy. I observe that the wall of the conservatory closest to Roche House is partially glazed and contains windows of about 400 mm in height which at their lowest point are some 1.65 metres above ground level. There is also a full height glass panel in the same elevation. This is about 900 mm wide. Both can be seen in the representation in paragraph 10. I am mindful that the whole of the conservatory is situated behind the utility room window. This means that anyone standing in the conservatory, assuming that they were taller than 1.75 metres and could see over the fence, would have an oblique view into the utility room window. Bearing in mind that the utility room window is only about 400 mm wide and the top 20% of it is obscured by a roller blind, it is doubtful that the level of intrusion would be very great. Mr Francis observed in his report that a utility room is not a room in which most people chose to sit, although Mr Hardy said that his wife used it for decorating cakes and therefore spent more time in the room than would usually be the case. The prevention of such an inward view would in my judgement be a practical benefit but it would not be substantial.

The same could not be said of any views across the garden. The first floor windows of Welbeck House afford views into at least part of the garden of Roche House and the conservatory will not, in my view, contribute to a greater sense of overlooking.

From my inspection it was apparent that the conservatory would be a relatively minor addition to what is a large, detached house. Neither would it dominate the rear garden, which is also quite spacious. It will be noticeable from the garden of Roche House but only from the area adjacent to the boundary and when looking backwards towards the two houses. Mr Hardy said that the conservatory occupied space that he has deliberately left undeveloped. I accept that he thought carefully about the relationship between the two houses but the change which is now proposed is modest and in my judgment would result in only a minimal loss of amenity.

The only room in Roche House affected by the conservatory is the utility room. It cannot be seen from any other window. The view from the window in the utility room is, at first glance, of the fence that separates the two houses. Above the fence the vista changes to some mature trees on the northern boundary of the garden of Welbeck House and above them of the sky. This is not a window from which a scene of rolling countryside or some other far reaching view might be enjoyed. As I have already mentioned part of the window is currently obscured by a scalloped roller blind. The other glazing in the utility room is in a door which provides access to the garden. That pane of glass is obscured or frosted. It seems to me that if the view from the utility room was important or worth enjoying either the door would have been installed with plain glass or the house would have been designed differently. The only part of the view that will alter is the scene looking backwards at Welbeck House and in my view its retention could never conceivably be a practical benefit of substantial value or advantage.

I conclude therefore that in relation to both the conservatory and the garage door works the covenant does not provide Mr and Mrs Hardy with practical benefits of substantial value or advantage. That means that I have jurisdiction to modify or discharge it. However, the question at this point is whether I should exercise the discretion conferred by statute.

I turn firstly to the question of whether to modify or discharge. It is easy in this case to envisage circumstances where the covenant might provide the protection Mr and Mrs Hardy sought; a much larger scale extension or a redevelopment which could seriously impinge on the amenity or value of the other houses in the scheme. I therefore have no doubt that the covenant should not be discharged and consequently the decision is whether or not to modify. Modification of the covenant for the works proposed by Mr and Mrs Anthony does not mean that the likelihood of any future application succeeding will be improved. In other words, this application will not be the ‘thin end of the wedge’. The Tribunal, in earlier decisions such as Martin v Lipton, hasemphasisedthat each case is facts dependent.

That leads me to the consideration of whether there are any other factors which should form part of my exercise of discretion. Mr Hardy in his submissions argued that Mr and Mrs Anthony knew about the covenant before they formulated plans to extend their house, deliberately chose to ignore it and started work anyway. Mr Anthony, in response to a question from the Tribunal, said that he had no recollection of his solicitor drawing the matter to his attention at the time the house was purchased. Whether or not Mr and Mrs Anthony knew about the covenant, work on the project was stopped as soon as Mr Hardy raised the matter with them. It seems to me that this is not a situation where Mr and Mrs Anthony brazenly breached the covenant and presented the Tribunal with the completed project.

The second matter which falls to be considered as part of the Tribunal’s discretion is the age of the covenant. Imposed in 2004 the covenant in this case is not especially recent, but the objector is one of the original parties to the covenant. In Cresswell v Proctor [1968] 1 W.L.R. 906 CA the Court of Appeal (Harman and Danckwerts LLJ) took the view that the Tribunal’s discretionary powers ought not to be exercised in the case of a very recent covenant where the application was made by the original covenantor. In Hodgson v Cook [2023] UKUT 41 (LC) at [62] the Tribunal said that:

“Even if I had come to the opposite conclusion on whether the ground (aa) conditions were satisfied, I would have been very reluctant to lift a restriction which the applicants themselves freely accepted less than ten years ago. The more recently a restriction has been imposed the stronger the case for modification must be.”

The circumstances in this case are not wholly aligned with either Creswell or Hodgson but the covenant has served the interests of Mr and Mrs Hardy for 21 years and its modification, however minor that change might be, is a factor which has a bearing on the Tribunal’s decision.

The final aspect which is worthy of consideration is the qualified nature of the covenant. The wording of the covenant does not create an absolute prohibition against any alterations or additions, since if that had been the parties’ intention there would be no reason to include a reference to the specific written consent of Mr and Mrs Hardy being required. It is not the job of the Tribunal to determine whether consent has been unreasonably withheld, such that the covenant could not be enforced, but when the Tribunal exercises its discretion, it seems to me that it is relevant to consider how likely the refusal of consent would be to survive a challenge that it was unreasonable. I have already concluded that for both alterations the effect on the amenity of Roche House will be very limited in the case of the conservatory and non-existent in the case of the wider door; in those circumstances Mr and Mrs Hardy’s refusal to consent to the modifications could very well be considered unreasonable.

In Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] 1 WLR 4783 Lord Burrows said at [52]:

In this case the main matters that require consideration in the application of discretion are finely balanced. On the one hand, the covenant was imposed by Mr Hardy himself to control changes to the property immediately next door to his own home. On the other hand, one of the proposed changes will have no effect, and the other will have only minimal effect, on his enjoyment of his own property, which it was the object of the covenant to protect. It is my judgement that the proper exercise of the Tribunal’s discretion, taking all the relevant factors into account, is to allow the application to modify the covenant.

I now turn to compensation. Mr Hardy ticked the box on the objection form to indicate that he sought compensation but did not specify a figure and adduced no evidence. Mr Francis concluded that there would be no diminution in value at Roche House. In the circumstances I make no award.

There is one further aspect of this case that needs to be addressed. Mr Healy suggested that there might be some uncertainty about the scope of the restriction and, in particular, whether it applied only to external alterations and additions or also affected internal alterations. He referred to s.84(2) of the Law of Property Act 1925 which gives the Court power to make a declaration concerning the nature and extent of a restriction and invited me to resolve the suggested uncertainty. But section 84(2) confers jurisdiction on the Court, not on the Tribunal, and the Tribunal has no power to make declarations. Fortunately, the uncertainty which Mr Healy detected in the meaning of the restriction is not something which has caused difficulty between the parties.