In this blog we take a look at the case of Rogers v. Dinshaw (2024) which involved an application seeking discharge of a covenant which prevented development without prior written consent being given. Two unauthorised extensions had already been made to the property, in breach of the covenant, in 2018. The covenant was modified to permit the extensions.
Background
The property involved was 7 Redwood Grove, Bude, Cornwall. The covenant arose from a conveyance dated 18th December 1980 and prevented construction of buildings or extensions without prior written consent of the vendors or their surveyor.
Bude is a small seaside town on the north Cornwall coast. Redwood Grove is a cul-de-sac containing 22 dwellings, half a mile east of Bude town centre. The property subject to the application was originally a detached bungalow with 3 bedrooms. The extensions were to the kitchen area and to the 3rd bedroom, conventionally constructed with rendered walls under a concrete tiled pitched roof. Bedroom extension is approximately 2 m x 2.5 m and the kitchen extension was approximately 3.5 m x 3.5 m.
Planning permission was not required as the modest size fell within the criteria for a permitted development. Buillding control approval had been sought and obtained.
Work had been scheduled to commence at the beginning of May 2018. Mrs Rogers said that after showing their neighbours the plans, Mr Roy Dinshaw returned later that day and told her husband to carry on the work as planned. The building work commenced and continued throughout the summer of 2018. The work was complete, and in 2022 Mr and Mrs Rogers decided to move, and accepted an offer for their property. In August the purchaser's solicitors raised a query about the covenant, at which point Mrs Rodgers said they had no knowledge of the covenant. They wrote a letter apologising and requesting a retrospective consent.
The Dinshaws said they were taking legal advice, and Mrs Rogers took the property off the market. Correspondence ensued and the Rogers applied to the UTLC. The Dinshaws objected on the basis that; the extensions were built in breach of the covenants, to allow would be the ‘thin end of the wedge’ and likely to cause problems in the future, and claimed compensation in the sum of £50,000.
Decision
The Tribunal member held that on the facts of this case: ‘it may indeed be unreasonable to withhold consent but that is not the question posed in the context of section 84; the tribunal's task is to determine whether any of the statutory grounds are made out’.
As to ground (a) - whether the covenant was obsolete - whilst the original purpose of covenant had more limited relevance, the whole area having been fully developed, the covenant did still ‘retain a modicum of utility for those, other than the objectors, who own benefited land as it prevents development which might affect amenity but not require planning permission’. Ground (a) was not therefore satisfied.
Tribunal members held that the extensions were a reasonable use and were impeded by the covenant.
The objector's case was that it enabled them to protect the character, visual amenity, and environment of Redwood Close and Redwood Grove, and repeated their ‘thin end of the wedge’ arguments which would make it difficult to resist an unfavourable change in the character of the neighbourhood and overdevelopment of other plots.
The Tribunal held that the fact that many of the immediate neighbours in the vicinity had been given notice of the application and were not objecting was consistent with the extensions been relatively inconsequential. The prevention of the extensions was not a practical benefit to the objectors.
The application would succeed on ground (aa).
Compensation?
The objectors had sought compensation of £50,000 which was described as a ‘provisional’ figure, and a right of first refusal if the property were to be sold. The Tribunal held that their approach was misguided. There being no evidence that the objector's land was suffered or declined in value, the claim for compensation was rejected.
Exercising discretion
Turning to the second question, once jurisdiction was established, the Tribunal member stated ‘the Tribunal will not normally decline to exercise its discretion unless there is a compelling reason for it not to do so’.
The objectors argued that Mr and Mrs Rogers chose to build the extensions in clear breach of the covenant and by avoiding the need for planning consent they had demonstrated an intention to subvert or circumvent the covenants. Mrs Rogers evidence that she had built the extensions to provide for extra space, and had been unaware of the restriction, was accepted. This was not a ‘cynical breach’ of the covenant, motivated by profit.
Summary and conclusions
This decision was a good result for the applicant in this case. With no planning permission obtained and having built two extensions in breach of the covenant, the applicant did very well to achieve modification to enable the retention of the extensions as built. The key to this was the applicant's evidence as to not knowing about the covenants, and their motivation for building as they did, being believed by the Tribunal member.
Case: Rogers v. Dinshaw (2024) UKUT 00001 (LC)
Toby Walker and his team specialise in disputes over property, include applications to the UTLC. They act for both owners and developers as well as those seeking to uphold covenants in all stages from initial advice, negotiations, deeds of variation and litigation. Toby has written extensively on covenants and you may wish to check out here for an overview on covenants and what you may be able to do with them.
If you require support with a restrictive covenant matter, please contact Toby by email or be telephone on 01494 893512.