[2025] UKUT 295 (LC)

The view from Korobe

For the objectors, Mr Clarke submitted that when the restrictions were imposed by the owner of Korobe in 1965 he had taken particular care to protect Korobe from development at the three properties within its line of sight. The breaches at Hillside have given rise to a loss of visual amenity at Korobe, and also a loss of visual amenity within the street when approaching Korobe.

Mr Hunt in his evidence explained that the whole purpose of purchasing Korobe for redevelopment was to take advantage of its orientation and aspect, with exceptional westerly views across the Goring Gap and of sunsets over the Berkshire Downs. He said that Hillside “is directly front of stage in our sight line” and he considered that the works had compromised the views and visual amenity from Korobe, a scenario which he believed the restrictions were intended to prevent. Had Hillside remained a bungalow with the same profile, ridge orientation and height of the adjacent bungalows, the whole street scene would have remained consistent and uniform. The works had changed this and the new Hillside is “loud, brash to the point of bordering on invasive”. He said he thought the dormer windows are “particularly unsightly” and that the extension is poorly constructed.

However, in his skeleton argument Mr Clarke acknowledged that the extension of Hillside does not block the views across the Goring Gap – as can be seen from the two photographs above at paragraph 31, in which other houses can be seen beyond the roof line of Hillside. So the issue is not loss of a specific view, but loss of visual amenity: Mr Clarke said that Hillside “is unsightly compared to the previous bungalow at Hillside. It stands out. The dormer windows are particularly objectionable to the Objectors.” Essentially Mr and Mrs Hunt do not like the look of Hillside.

Mr Hunt said in his evidence:

“The character of Fairfield Road - in terms of its massing and density - has remained effectively unchanged since 1965 when the Covenants were

established. If Mr Hedgcock [who imposed the covenants] were to walk along Fairfield Road today, he would recognise virtually all of the houses on the eastern side which were constructed between the World Wars. There has been no subdivision of any of the plots, and no garden development since Claremont and Gap House were built in the late 1960’s. There are some new extensions, and a handful of modern rebuilds (including now Korobe), but the layout, and more importantly the setting, of Fairfield Road are essentially the same. The Development is not in keeping with any of the other properties.”

Mr Hunt’s indignation about Hillside, and his assertion that the surroundings are otherwise “unchanged”, is perhaps surprising in view of the extreme modernity of Korobe. In any event as we have already observed the street scene is not unchanged; there are several extensions and new builds which do not match the architecture prevailing in the 1960s; Hillside is far less out of keeping than several others.

Aside from the fit, or otherwise, with neighbouring properties there are two things to be said about the objectors’ reaction to Hillside’s appearance. One is that Hillside is neither loud, brash, nor invasive. It is a perfectly pleasant house and we fail to see anything objectionable about it in itself. The dormer windows are not unsightly. And it is not “front of stage”; Hillside is diagonally opposite Korobe, not directly in front.

The second is that some care is needed when we consider to what extent the restrictions in impeding the extension of Hillside (see the words of section 84(1A), above), protect the visual amenity of Korobe. Obviously the height restriction protects the view of the Goring Gap; but the view of the Goring Gap is unaffected by the extension of Hillside and therefore this is not a benefit that is conferred by the restrictions in impeding this development. The restrictions say nothing about the design of the property at Hillside beyond its height, the number of storeys and the windows; they say nothing about its architectural style nor its colour, and they do not give the owners of Korobe any control over plans for any alteration of Hillside. We have no reason to believe that there is anything wrong with the quality of construction of the extension of Hillside, since we do not regard Mr Hunt as qualified to give an opinion about that, but in any event the restrictions have nothing to say about quality.

In terms of visual amenity, and leaving aside privacy, there is nothing unattractive about windows in themselves, so we can say that the benefit conferred by the restrictions in preventing this extension of Hillside is the prevention of building above the line defined by the original height of Chesil Bank. The idea is to have only low-lying buildings of which Gap House and Clarement are still examples. Whether the objectors like the look, design or quality of Hillside is irrelevant.

Looking again at the photographs, Hillside is taller than its neighbours. Arguably the view would be nicer if it was lower. We acknowledge that it draws the eye, but that is mostly because of the newly-opened entrance. If it were still a bungalow it would still be visible through that gap; but more of it is seen because it is taller than it is supposed to be. We take the view that the preservation of that height-line and the prevention of a building at Hillside taller than the prescribed height is a practical benefit conferred by the restrictions in preventing the development at Hillside.

Is that practical benefit of “substantial value or advantage”? If it is, there is no jurisdiction to modify the covenant.

Whether that benefit is a “substantial advantage” is a subjective question. Having visited the site and appreciated the extent of the panoramic view beyond the immediate foreground, we take the view that it is an advantage but not a substantial one. Whether the benefit is of substantial value is a matter for valuation evidence to which we turn shortly.