[2025] UKUT 242 (LC)

I have had regard to fact that other properties in the area appear to have carried out alterations to roofs, similar to that proposed by the applicants here. I am also mindful that the parties to this application were not the original parties to the restriction. I have also noted all the applicants say about Ali, and their need to provide care for him.

Both counsel framed their submissions by reference to the list of questions posed in Re: Bass Ltd’s Application (1973) 26 P&CR 156. While this convenient shorthand is not a substitute for an examination of the relevant provisions in the Act, given the parties have used it, I adopt this format.

The objector accepts that if constructed in line with the planning permission, the proposed works would be a reasonable ‘user’ [use] of the land. That is not the case if the works are at odds with the permission. However, for the purposes of this question, given the experts’ agreement and in the light of the variation from the planning consent being relatively minor, it seems to me that the works would constitute a reasonable user of the land. That is a different, preliminary, question, from whether the restrictions should be modified to allow them.

It is common ground that the restrictions impede that user. At the hearing, Mr Moys very fairly accepted that the restrictions secure a practical benefit to Mr Heath. I have no doubt that they do. The ability of the objector to control any building or alterations on the subject land is clearly a practical benefit.

Is that practical benefit of substantial value or advantage? These are alternatives. As for substantial value, the question is normally answered by assessing the impact of the proposed modification on the market value of the objector’s property. The higher the level of impact, the more likely that the benefit would be considered substantial. Having inspected both properties, I am satisfied that the practical benefit of the ability to prevent the works is not of substantial value. I doubt that a prospective purchaser, fresh to the scene with the works having been completed, would alter their bid from that without the works having taken place. The valuation experts take the same view.

Whether the practical benefit secured by the restrictions is of substantial advantage is a different question. In my judgment the proposed alterations can be considered in two parts – the roof works and the ground floor works.

Having stood in Mr Heath’s property with the benefit of the plans and drawings in the planning documents, I agree with him that, despite having planning permission, the increase in height of the roof structure would have a significantly overbearing effect on his conservatory and garden. I have no doubt that the ability to prevent the substantial alterations to the roof is a practical benefit of substantial advantage to him. On that basis, as regards the roof, the applicants’ reliance on s.84(1A)(a) fails.

I must also consider whether impeding the proposed user is contrary to the public interest (s.84(1A)(b)). Mr Moys, wisely in my view, did not press this point, describing it in his skeleton argument as being of tangential (if any) relevance. He described the applicants’ position as being that they are not presently able to reside as a family in no.24 without the works being completed, and it was in the public interest that their family live together.

In Shephard v Turner [2006] 2 P&CR 27, at [58] Lord Justice Carnwath, as he then was, explained that the purpose of ground (aa) was to provide a fair balance between the needs of public and private developmentand the protection of property rights.

In The University of Chester’s Application [2016] UKUT 0457 (LC), (in which an application was dismissed despite the proposed user having planning permission), the Tribunal (Martin Rodger QC, Deputy Chamber President and myself) explained that the test is not whether the proposed use afforded by the modification is in the public interest, it is whether in impeding that use, the covenants are contrary to the public interest. At [82], the Tribunal said:

“… We take the view that before it can be determined that the restrictive effect of a covenant is contrary to the public interest it is necessary to make a broad assessment not only of the beneficial use which is prevented by the covenant but also of the advantages which it secures to those entitled to the benefit of the covenant.

83.

In Re Collins’ Application (1975) 30 P&CR 527, at 531, the Lands Tribunal (Mr Douglas Frank QC) implied that in weighing this balance between public interest and private rights, considerable weight should be given to private rights:

‘In my view for an application to succeed on the ground of public interest it must be shown that that interest is so important and immediate as to justify the serious interference with private rights and the sanctity of contract.’ ”

It is therefore necessary to balance the objector’s ability to prevent the applicants’ proposed use, against the interference with Mr Heath’s property rights should the modification be permitted. Mr Hassan very fairly accepted that when they bought No.24 they knew it was too small for them as a family, and that they were aware of the covenants (being advised, as I have said above, that they would not be an obstacle to development). I have sympathy for the applicants, and am mindful that they simply want to do what is best for Ali, but I am not persuaded that this overrides Mr Heath’s objective to maintain the restrictions which were in place when the parties bought their properties, or that by maintaining the status quo the covenant is contrary to the public interest.

Accordingly, as regards the element of the application to modify the restriction to enable the roof alterations to take place, I refuse the application.

The situation as regards the ground floor extension is more nuanced. In respect of the works permitted by the planning consent, I can see nothing particularly objectionable in them. I also consider the slight increase in the height of the ground floor element, said by the expert valuers to be in the order of 200 mm, to be relatively innocuous, noting that they drew no distinction in terms of effect on value. As regards the window in the rear elevation which does not comply with the planning drawings, Mr Heath was concerned about overlooking and an effect on his privacy; but from my site inspection it was apparent that this is only an oblique view of part of his conservatory when standing on the applicants’ stairs. He was also concerned about light pollution but in my view, this is likely to be little more than light spilling from other windows of no.24, or of the window if it were the correct size. Finally, as regards the front canopy, it faces away from no.24A and would be an irritation to Mr Heath, but not much more. While I have sympathy with Mr Heath’s view that it does not appear to be in keeping with the age of the property, I include it in the group of alterations which the expert valuers have noted, above.

In my judgment, the ability to prevent the applicants from carrying out (or, in practical terms, completing), the ground floor works proposed, including the variations from the planning consent, is not of substantial advantage to Mr Heath. For these works, I am satisfied that I have jurisdiction to modify the restrictions.