[2025] UKUT 209 (LC)

Mr Healy based his submissions on the Tribunal’s decision in Re Bass Ltd’s Application (1973) 26 P&CR 156. In that case the Tribunal identified a series of questions which it found of assistance in coming to a conclusion on an application under ground (aa).

The first of these questions is ‘Is the proposed user reasonable?’ Mr Healy submitted that a conservatory is an unremarkable addition to any residential property and noted that Roche House has a sun room of its own. In terms of size the proposed conservatory was ‘not out of keeping’ with the overall size of Welbeck House and the apex of the roof will be no higher than 3.26 metres (10’6”). It would be set back from the boundary and the elevation facing Roche House had little glass.

The widened door in the garage was also a reasonable use and most householders would recognise the benefit of having an access to the rear garden for larger objects that did not involve dismantling a fence to facilitate such movements.

The second question is ‘Do the covenants impede that user?’ Mr Healy says that it is clearly the case that the covenant impedes what Mr and Mrs Anthony describe as the reasonable use of their land.

The next question is ‘Does impeding the proposed user secure practical benefits to the objectors?’ Mr Healy submitted that as far as the proposed works are concerned the covenant does not secure any practical benefits. Turning firstly to the conservatory the view from Roche House will not be affected and the amount of light entering any of the rooms will not be diminished to ‘any real extent’. Mr Healy made the following observations:

As far as the garage works are concerned Mr Healy submitted that it was difficult to envisage how this would have any impact on Mr and Mrs Hardy as it would only be visible from a point in the garden of Roche House and would require that they peered over the hedge that separates the two properties. He noted that the occupants of Rufford House, which is adjacent to the garage, had not raised any objections.

Mr Healy further submitted that Mr and Mrs Hardy had not adduced any evidence in relation to the design ethos of the overall development and how it might be impacted. They did not raise the matter through expert evidence of their own or by questions to Mr and Mrs Anthony’s expert.

The fourth question asks – ‘If the answer to question three is affirmative, are those benefits of substantial value or advantage?’ Mr Healy said that should the Tribunal find that the ability to prevent the works is of value to Mr and Mrs Hardy, then that ability is not of substantial value or advantage because the works are so small, or putting it another way; these are alterations that will have next to no impact on the objectors.

At this point Mr Healy also dealt with the question of ‘the thin end of the wedge’, or in other words the notion that consent to the works in this case will create a precedent for approval of future applications for alterations. He noted that Mr and Mrs Anthony have no intention to carry out any other alterations and the scope to do so at Welbeck House, once the conservatory and garage works were completed, would be limited in any case. He also said that any future application would be considered on its merits and noted the Tribunal’s comments in Martin v. Lipton [2020] UKUT 0008 (LC) where at paragraph 72 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.”

The fifth of the Re Bass questions is ‘Is impeding the proposed user contrary to the public interest? This matter does not need consideration on the facts of this case.

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? Mr Healy submitted that were the answer to be negative it would logically follow (assuming there was evidence to support it) that money would be adequate compensation. He noted that Mr and Mrs Hardy have not claimed any compensation or adduced any evidence in support of it.

The last question deals with the matter of compensation if the answer to question five is affirmative. As there is no public interest aspect to this case we do not need to consider a response.

Mr Healy acknowledged that the covenant has only been in place for 21 years. He submitted that the modernity or otherwise of the covenant falls to be considered under s.84 (1B), meaning that it is a material consideration, but not one that he considered required any special weight to be attached to it. It needed to be weighed with all of the other factors.