[2025] UKUT 209 (LC)

In his submissions Mr Hardy said that he had previously developed a site with some other builders one of whom had altered and extended their house in breach of an agreement between the group. Unhappy with the outcome he had started again at the site on Bigsby Road. He resolved that he would avoid the same circumstances arising again and on the advice of his solicitor, included a covenant in the transfers of some of the properties to ensure that the consent of he and his wife was required before any alterations or additions.

Mr Hardy said that trees on the boundaries of the site were subject to Tree Preservation Orders, and he had worked closely with the architect for the development to arrive at a configuration for Welbeck house and Roche House which complied with the constraints imposed by the local authority, but also afforded openness at the boundary, light, privacy a sense of space and views. The positioning of the houses minimised the degree to which the flank walls faced one another and as Mr Hardy put it, ‘they would run against each other for as short a distance as possible’.

He explained that at the moment Welbeck House abuts the garage of Roche House rather than any of the living space. The conservatory would occupy space that he had deliberately left open in the interests of privacy and space. If permitted, the conservatory would create a dark and overly built up passageway at the side of the house and interfere with the views from the utility room window.

Mr Hardy also submitted that the construction of the conservatory is not, in his view, a reasonable use of land and that his enjoyment of his own land had already been impacted by the work undertaken so far. He would be significantly affected by the completion of the conservatory and would ‘suffer an obstructed view from the window…. with a conservatory towering above the fence’.

Mr Hardy also objected to the modification of the rear wall of the garage, noting a lack of detail in the application. He regarded it as unnecessary as there was a passageway some 1.8 metres wide at the side of Welbeck House down which large items could be carried.

Mr Hardy also provided a lengthy submission concerning Mr Anthony's knowledge of the covenant and accusing him of purposely breaking it. It is not necessary to record the details of the various exchanges between the parties at this point in the decision, but I will return to them later.

Finally, Mr Hardy said that discharge of the covenant would result in more additions and alterations to Welbeck House to the detriment of Roche House.