[2025] UKUT 242 (LC)

The applicants having succeeded under ground (aa) insofar as the ground floor works are concerned, I must consider whether to exercise my discretion to modify. The thrust of counsels’ submissions on this point was the applicants’ conduct, specifically that the works had already begun in breach of covenant. Mr Moys submitted this was not a case of a deliberate and cynical attempt to present the Tribunal with a fait accompli. Whereas Mr Brown contended that the Applicants had blatantly disregarded the restriction.

I can deal with this fairly shortly. I do not consider that the applicants have ‘cynically breached’ the restrictions, in the Alexander Devine sense. They appear to have been ill-advised, and possibly naïve. Once the injunction was in place, after some work to keep the property watertight, work stopped. Nothing has been done to the roof.

I am satisfied that I should exercise my discretion to modify the restrictions, to enable the ground floor work to be completed, including the retention of the extra height to its roof, and the retention of the rear window that has been installed, together with the second proposed rear window to align with the extant one.

The alternative, of refusing consent and exposing the applicants to the risk of an injunction requiring them to remove the work, would be disproportionate to the offence and to the very modest impact which the retention of the work will have on Mr Heath’s enjoyment of his property. I do not know whether the Court would be minded to compel the removal of the works, but I am satisfied that it would be no service to the parties to duck that issue and to leave them to continue their dispute before the Court. The better course, is my judgment, is to resolve the long term issue in this forum by modifying the restriction.

Accordingly, I will modify the restrictions to permit the ground floor works, but not the roof works, permitted by planning consent 23/02899/HOU, to include the current height of the ground floor extension, the current rear window at ground floor level in the rear elevation, together with the second proposed rear window to align with the extant one.and the front canopy. No other variations from the planning consent shall be included in the modification.

The application is allowed, in part, and the parties are now invited to agree the wording of the modification to put this into effect, and submit an agreed order within 14 days of the date of this decision.

The parties are directed to confirm within 14 days whether costs have been agreed, otherwise the Tribunal will issue further directions for the service of costs submissions.