In Doherty v Pashkin (2023), the applicants were successful in their case to discharge or modify a covenant which burdened 4 Kerr Field Place, London SE5 8SX.

The covenant prevented any alteration to the exterior appearance of the building and the construction of additional buildings. In this case, there was no planning permission application. Instead the applicants wished to exercise Permitted Development rights to provide a single story extension to the rear, and a loft conversion with rear dormer roof extension. It was common ground that to do so would be a breach of the covenant.

Background

The property sat in the Selbourne Estate, in Camberwell South London. It had been developed in the early 1980s to provide semi-detached and terraced houses and blocks of flats. The property subject of the application was a two bedroom, 2 story mid-terraced house within a cul-de-sac.

The covenant arose in a second schedule to a transfer dated 8th June 1984 between London Borough of Southwark and the purchaser. The covenant read as follows:

‘the exterior appearance of the buildings walls fences and other erections now on the premises shall not hereafter be altered and no additional buildings walls fences or other erections shall hereafter be constructed or maintained on the premises’.

In around mid-2021 the applicants showed architectural drawings of the proposals to their neighbours, all of whom supported other than Mr and Mrs Pashkin their immediate neighbours. The Pashkin’s property was occupied at that time by tenants.

The objectors house, number 5, adjoined the property to its northern boundary and was the penultimate house in a terrace of 6.

A Tribunal member inspected the property and 5 Kerr Field Place on 28th  June 2023.

The Decision on ground (a) – obsolete?

Dealing with the ground (a), that the covenant was obsolete, the Tribunal member gave relatively short shrift, saying that the burden of proof that a covenant has become obsolete ‘is a high one and it requires first a consideration of the original purpose of that restriction’. The Tribunal member could not agree that changes in the character of the neighbourhood was sufficient and so widespread that the restriction ought be deemed obsolete and as such that ground failed.

The Decision on ground (b) – agreement reached?

Likewise, ground (b) - that those entitled to the benefit had agreed to discharge or modify the covenants - was also not satisfied. Although there was initial indication of willingness to agree modifications subject to payment, agreement was never finalised.

The Decision on ground (aa) – reasonably use and no practical benefits of substantial value or advantage?

The crux of the case was under ground (aa). The Tribunal member held that the certificate of lawfulness provided by the Council was strong evidence that the proposed uses were reasonable in a general sense. The fact that the Council had signed a deed of release from the restriction, and the neighbour at number 3 had written in support of the proposals, gave further weight to them being reasonable.

Practical benefits of substantial value or advantage?

As the question of whether the covenants gave practical benefits of substantial value or advantage to the objector, the Tribunal heard evidence from Mr Roberts, a surveyor, who assessed the market value of the objector's property at £740,000. Based on his experience of the greater London residential market and general market principles he could see no grounds to consider that the proposed works would cause diminution in value to the objectors property, which already had a conservatory extension. Conversely, whilst some prospective purchasers might be put off from the attic conversion, others might consider it as an opportunity which would enhance not diminish its value.

The objectors sole concern (rather than loss of privacy, light, amenity - as might ordinarily be run as arguments in opposition to an application for modification) was the risk of structural damage to his property should the applicants be permitted to carry out the proposed works. He said that even with the best documentation and building controls, mistakes can be made during construction and he wanted a renovation warranty to protect his property value. He also cited a risk to the public who walk under his first floor lying freehold, should the loft conversion cause problems. The applicants counter-argued that a right to structural integrity and safety was provided to all members of society by building regulations.

The objector had sought a figure of £200,000 in compensation in his notice of objection as his estimate of the likely loss he would suffer in a worst-case scenario of severe structural damage.

In dealing head on with the objector’s arguments, the Tribunal member held at paragraph 62, that the purpose of the restriction was to limit changes to the appearance of the estate and to prevent new buildings, not to provide structural integrity. She found that there was no evidence that this was the object of the covenants, and in any event the indemnity provisions of the 1996 Act (party wall), enhanced by the applicant’s agreement to give a warranty, should give him peace of mind.

The Tribunal member exercised their discretion, on the basis that the covenant did not secure practical benefits of value or advantage to the objector, to modify the covenant.

Summary and conclusions

This case goes to show that an application can be fought and won on ground (aa) on the basis of Permitted Development, rather than a full planning application. The Certificates Of Existing Lawful Use issued by the local council were helpful to the applicant in this case, as was a letter of support from another neighbour. An objector, in order to be successful, will need to identify practical benefits of value or advantage which are secured by the covenant, and this will ordinarily be helped by obtaining expert evidence on either diminution in value or quantifying other benefits.

Case: Doherty v Pashkin (2023) UKUT 00196 (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.