[2025] UKUT 295 (LC)

Turning now to Hillside, as we said above the applicants completed their purchase of Hillside in March 2020. Mr Harrison-Ellis explained that when he and Mrs Harrison-Ellis viewed the original bungalow at Hillside the loft had been partially converted but provided only a small room with limited standing height; they felt that the property was ideally situated for them but would require work to update and extend it to provide a family home. Their solicitors made them aware of the restrictions. The applicants called in at Korobe and learned that the property was let out to tenants who did not have regular contact with the objectors. So on 4 February 2020 the applicants wrote a letter to the objectors, which they asked the estate agent selling Hillside, Mr Matthew Eason of Davis Tate Estate Agents, to pass on. The letter said that they were thinking of buying Hillside, and had been made aware of the covenants. It said that the covenants were:

“1.

Not to erect any other building other than a single storey building to the site however the purchaser shall be at liberty to incorporate in the roof bedrooms and dormer windows.

2.

The height of such building shall not rise above the existing level of the roof ridge of Chesil Bank (house next door to Hillside).

3.

Not build closer to Fairfield road than the existing line set by Chisel Bank.”:

As can be seen that summary was not very accurate, and in particular it failed to state that dormer windows were not allowed on the north or eastern side of the roof, and it failed to state that the height restriction referred to the original height of Chesil Bank.

Whether those omissions were deliberate is an issue between the parties to which we come back later. The letter went on to explain that the applicants wanted to add an extra storey so as to have three more bedrooms, and said:

“Ideally, with your permission we would like to have the covenants removed and work alongside yourselves and the architect to come up with the best solution for all.

We are happy to email or to bring the documentation reference covenants for you to see.”

The letter was sent to Mr Hunt by Mr Eason on 4 February 2020, and Mr Hunt received it but decided not to reply. We have to come back to that letter, and to Mr Hunt’s reaction, later. Mr Harrison-Ellis said that if there had been any indication of opposition to their proposals they would have either pulled out of the purchase or amended their plans.

Meanwhile, the applicants engaged a local architect, Catherine Hall, to draw up plans for their extension. Ms Hall sat on Goring-on-Thames Parish Council with Mr Bryan Urbick, whom she knew to be friendly with the objectors. She asked Mr Urbick to contact the objectors to request that they meet the applicants to discuss the proposed works and the restrictions. Mr Urbick gave evidence that he spoke to Mr Hunt; in his witness statement he said:

“I cannot remember the exact date when I spoke to Mr Hunt, but I recall that he did not want to speak to Mr and Mrs Harrison-Ellis. Instead, he suggested that Mr and Mrs Harrison-Ellis submit a planning pre-application. The impression Mr Hunt gave me was that if Mr and Mrs Harrison-Ellis went through the process and it was approved, this would be ok.”

On 14 February 2020 Mr Urbick wrote an email to the applicants, copied to Ms Hall, stating that he had spoken to Mr Hunt. He said this:

“When I spoke to Mr Hunt he suggested that you do a Planning pre-application, so what you are doing is not out-of-line with what he suggested as well. I have similar views to Catherine about the benefits and drawbacks of pre-applications, so to me, going to a full application makes a lot of sense, too.”

Again we have to come back to that correspondence as it is the subject of some dispute; suffice it to say for now that the applicants’ position, which is not accepted by the objectors, is that their understanding from Mr Urbick was that so long as they obtained planning permission for their development the objectors would be content with it.

The applicants completed their purchase of Hillside on 17 March 2020. They made a full planning application rather than going through the pre-application process; before submitting the application they hand delivered a letter, outlining their plans and intention to make a planning application, to neighbours at 6, 7 and 8 Meadow Close, Chesil Bank, Claremont, Gap House, Broughton, Wayland, Korobe and St Kilda (all of which are located on the plan above). The objectors (whose house was tenanted at the time, see paragraph 10 above) say that they never received that letter.

On 20 April 2020 the applicants applied to South Oxfordshire District Council (“the Council”) seeking planning permission for the proposal: “First floor extension with roof changed, new porch and internal alterations. New roof above garage.” The Council notified neighbouring properties of the application, but not Korobe.

The planning officer’s delegated report noted that one objection was received from a neighbour in Meadow Close, to the rear of Hillside, but no objections were received from the immediate neighbours on Fairfield Road or from Goring Parish Council. The planning officer stated “Whilst I acknowledge that these proposals would be at discord with the properties on either side there is no architectural standard in the area. The character of the street is created by the consistent building line, with the dwellings set back behind verdant front gardens.” The report concluded: “Planning permission is granted because the proposed development would not materially harm the amenities of neighbouring dwellings, the appearance of the existing dwelling, wider area or the special landscape distinctiveness of the Chilterns Area of Outstanding Natural Beauty.”

Planning permission for the extension was granted on 8 June 2020 for “a first floor extension with roof changed, new porch and internal alterations; and new roof above garage”. The work included provision of two new dormer windows and a Velux window in the eastern slope of the roof, facing across the road towards Korobe.

Building work started in late June 2020 and was completed in early December 2020. The original bungalow had an estimated gross internal area of 1,507 sq ft, providing a hall, kitchen, sitting room, family room, utility room (connecting to an attached single garage), four bedrooms, a bathroom and shower room. Hillside now has at ground floor a hallway, TV/play room, sitting room, a dining room, kitchen/family area, guest bedroom with en-suite shower room, study and WC. On the first floor it has a master bedroom with en-suite bathroom, two further bedrooms and a bathroom. The estimated gross internal floor area is 1,855 sq ft.

It is agreed that Hillside is now a two-storey building and that the ridge height is 50 cm above the current ridge height of Chesil Bank, and therefore 120cm above its height when the restriction was imposed. There are two dormer windows and a Velux window in the eastern roof slope facing Korobe. The applicants acknowledge that these features (“the works”) are impeded by the restrictions and are therefore in breach of them.

In December 2020 Mr Hunt was having plans prepared for an application for planning permission for the demolition of the bungalow at Korobe and the construction of a new house. He went to see the applicants to discuss his plans. Mr Harrison-Ellis’s evidence was that in the course of that visit Mr Hunt said “I really like what you have done here”, and “I had no objections to your plans, so I trust you don’t have any objections to ours.” At the hearing Mr Hunt denied that he said those words; he said that he was unimpressed with what he saw at Hillside but tried to be polite. We come back to that evidence later.