[2025] UKUT 295 (LC)

Mr Skelly submitted for the applicants that in the 60 years since the restrictions were imposed the character of the neighbourhood has changed - with the building of the Meadow Close development behind Hillside; alterations to Chesil Bank which included raising the height of the roof, and the redevelopment of Korobe and of other properties along Fairfield Road. In all the circumstances the restrictions should be deemed obsolete.

Mr Hunt produced copies of planning permissions dated 1962, 1963, 1964 and 1966 relating to land to the west of Gap House, which he said indicated that Meadow Close had already been built, or was being built, when the restrictions were imposed, and that that development was known to the original parties who nevertheless imposed the restrictions. Mr Clarke argued that there has therefore been no change in the character of the property or the neighbourhood or other circumstance such that the restrictions should be deemed obsolete. Mr Hunt expressed the view that the character of the properties on Fairfield Road remains such that the parties to the covenant in 1965 would find everything familiar, except for Hillside itself.

As to Meadow Close, we have no evidence that indicates whether or not it was built, or partly built, by the time the restrictions were imposed, nor as to whether the parties to the 1965 conveyance knew or did not know that a housing estate was in prospect. However, even had it been shown that Meadow Close was not in anyone’s contemplation in 1965, we would not have found that its development made the restrictions obsolete. Meadow Close is further away from Korobe than the land on which Hillside and its neighbours stand, it is behind fencing and is not particularly intrusive upon the view across the valley, whereas Hillside and its neighbours are in direct view; the height and appearance of all three houses still matters to the owners of Korobe and the development of Meadow Close has not changed that.

As to the surrounding houses, and Korobe itself, there has of course been a lot of change. There are some modern houses, of which by far the most striking is Korobe itself, whose appearance is out of keeping with the properties on the burdened land. Hillside by contrast does look rather different from its neighbouring bungalows but is not stylistically inconsistent with them to the same extent as Korobe itself.

Nevertheless, we take the view that the covenant is not rendered obsolete by these changes in the character of the neighbourhood. The house on Korobe is built for its view, as was no doubt its predecessor, and the covenants can still fulfil their purpose. The application based on ground (a) fails.