[2025] UKUT 242 (LC)

Mr Hassan and Dr Osman purchased no.24 in November 2017. Mr Heath purchased no.24A in March 2021. Accordingly neither are the original party to the transfer.

The applicants have two children. Their son, Ali, is an autistic person with high support needs. They wish to adapt and extend no.24 to extend the ground floor, and to extend and covert the loft to make a third bedroom, to help cater for Ali’s needs. They made four planning applications to the local planning authority, the Royal Borough of Kingston- upon-Thames. The first two applications were refused, the third was withdrawn, but a fourth application, (23/02899/HOU) submitted on 8 November 2023, was granted on 23 January 2024. It was described as:

“Front hip to gable roof extension and erection of rear piggyback roof extension with installation of 6nos. side rooflights to facilitate loft conversion. Erection of single storey side extension with associated changes to fenestration.”

The proposed works are best shown on the drawing below, viewed from the drive to no.24A, with the existing arrangement at the top, and that proposed below it. Elm Road is to the left of the picture, and 24A is to the right. It will be seen that in addition to the roof alterations, the single storey element is extended to the rear, with various other alterations.

The sole objector to the planning application was Mr Heath. The planning officer’s report summarises his objection as being owing to excessive height or bulk of buildings, inappropriate design/layout, loss of light, sunlight, and privacy.

The planning permission was subject to a set of conditions. Two are relevant to this reference:

“ 5. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (or any Order revoking and reenacting that Order with or without modification), no windows shall be inserted nor any other openings formed (other than those expressly authorised by this permission) at ground floor or above in the rear elevation of the extensions to which this permission relates unless otherwise agreed in writing by the local planning authority.

…

7.

Prior to the beneficial occupation of the development to which this relates the front hip to gable extension shall have been completed in its entirety and thereafter maintained as such.”

The reasons for the conditions were to ensure satisfactory living conditions for neighbouring occupiers, and in the interests of the character and amenities of the area, both in accordance with policy D3 of the London Plan 2021 and policy DM10 of the LDF Core Strategy 2012.

In recommending the grant of planning permission, the officer’s report noted that:

“The application is supported by a daylight/sunlight assessment and the proposal would not result in any daylight/sunlight loss to neighbouring occupiers that are considered to cause harm to the existing living conditions of neighbouring occupiers. The separation distances, orientation and siting of the proposed extensions and fenestration in relation to neighbouring occupiers is such that the proposal would not result in direct or indirect adverse overlooking of neighbouring occupiers or create an [unnecessary] sense of enclosure. A condition is recommended to prevent future openings on the rear elevation to ensure the privacy is protected of neighbouring occupiers. It is considered that the proposed development would not adversely affect the amenities of the occupiers of neighbouring properties by reason of overbearing appearance, loss of light or loss of privacy.”

The events that took place before and after planning permission was granted are in issue, with Mr Hassan and Mr Heath each giving a different version of what happened, and of who said what to whom.

What is clear is that in various emails dating from April 2023, Mr Heath informed the applicants and their architects of the restrictive covenant. On 24 March 2024, Mr Hassan served a notice under s.1(5) of the Party Wall etc. Act 1996, stating that he intended to build on the line of junction between nos.24 and 24A, to extend the ground floor of his house. Mr Heath responded with two letters dated 9 April 2024. In the first he indicated that he didn’t consider it appropriate to respond to the Party Wall Act notice again reminding the applicants of the restriction on their title. His second was a letter before action, in which Mr Heath indicated that he intended making an application for an injunction restraining the applicants from continuing with the proposed work.

The applicants continued with the works. Mr Heath filed his claim with the Court for injunctive relief on 3 June 2024; Mr Hassan says that they were not aware of this until 19 July, by which time the works to extend the ground floor were half-completed. No works to the roof had started. An interim injunction was granted on 20 August 2024. There is a dispute as to whether the applicants continued with the works in breach of the injunction. There is a dispute over Mr Hassan’s exchange with the Deputy District Judge as to what he could do without breaching the injunction.

Some of the works carried out to date were not in accordance with the planning consent: a front canopy has been installed above the front door, the existing element of the single storey has been increased in height by about 200mm, and a rear ground floor window, facing Mr Heath’s property, is about 400mm too high.

As it stands, the work to extend the roof and convert the loft has not started. The work to extend the ground floor, to bring it up to the boundary between the two properties, has been started but not completed. Other walls and doors have been installed to make the ground floor watertight. The applicants are not currently living at no.24.