Dahi Hassan & Anor v Nicholas Peter Heath

This is an application by Mr Dahi Hassan and Dr Mariam Osman (‘the applicants’) under section 84(1) of the Law of Property Act 1925 (‘the Act’) for the modification of restrictive covenants affecting the title of their property, 24 Elm Road, Kingston-upon-Thames, KT2 6HP (‘no.24’). The objector to the application is their neighbour, Mr Nicholas Heath who lives at no. 24A.

The application concerns alterations that the applicants wish to make to no.24, for which they have planning permission, and which they have partly implemented. An injunction has prevented them from continuing, which has resulted in this application.

At the hearing at the Royal Courts of Justice on 16 July 2025, Mr Clive Moys appeared for the applicants, Mr Philip Brown for the objector. Mr Hassan and Mr Heath gave evidence of fact. An agreed joint statement of expert evidence by Mr Ruaraidh Adams-Cairns FRICS and Mr John Howse MRICS (together, ‘the valuation experts’) was submitted, but neither expert gave written or oral evidence.

On the day before the hearing I inspected both properties, accompanied by the parties.

No.24 is a two-bedroomed, two storey Victorian House. The original property is different from those around it, in that it is a double width plot, with what was originally a stable building with hayloft to the rear – located where ‘24A’ is shown on the plan below.

24A is now also a two storey house, in the converted stable building. Of particular relevance to this application is the conservatory which is attached to it, at right angles, and which has views over the garden, down the drive, and across to the public open space across Elm Road. The plan below shows the arrangement:

In 1986, former owner Mr Ian Vincent divided his title into two parcels, with no. 24A being formed in an L-shape around no. 24 (to the side and behind). He then sold no.24 to a Pia Varnava by way of a transfer dated 26 August 1986 in which, as far as relevant to this application, the purchaser covenanted as follows:

“… that she the Transferee and her successors in title shall at all times observe and perform the stipulations and restrictions following [in] the relation to the property namely:-

a)

the external plan or elevation of the dwellinghouse shall not be altered or permitted or suffered to be altered nor shall any building or erection other than the said dwellinghouse be erected on the land.”

Mr Hassan and Dr Osman purchased no.24 in November 2017. Mr Heath purchased no.24A in March 2021. Accordingly neither are the original party to the transfer.

The applicants have two children. Their son, Ali, is an autistic person with high support needs. They wish to adapt and extend no.24 to extend the ground floor, and to extend and covert the loft to make a third bedroom, to help cater for Ali’s needs. They made four planning applications to the local planning authority, the Royal Borough of Kingston- upon-Thames. The first two applications were refused, the third was withdrawn, but a fourth application, (23/02899/HOU) submitted on 8 November 2023, was granted on 23 January 2024. It was described as:

“Front hip to gable roof extension and erection of rear piggyback roof extension with installation of 6nos. side rooflights to facilitate loft conversion. Erection of single storey side extension with associated changes to fenestration.”

The proposed works are best shown on the drawing below, viewed from the drive to no.24A, with the existing arrangement at the top, and that proposed below it. Elm Road is to the left of the picture, and 24A is to the right. It will be seen that in addition to the roof alterations, the single storey element is extended to the rear, with various other alterations.

The sole objector to the planning application was Mr Heath. The planning officer’s report summarises his objection as being owing to excessive height or bulk of buildings, inappropriate design/layout, loss of light, sunlight, and privacy.

The planning permission was subject to a set of conditions. Two are relevant to this reference:

“ 5. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (or any Order revoking and reenacting that Order with or without modification), no windows shall be inserted nor any other openings formed (other than those expressly authorised by this permission) at ground floor or above in the rear elevation of the extensions to which this permission relates unless otherwise agreed in writing by the local planning authority.

…

7.

Prior to the beneficial occupation of the development to which this relates the front hip to gable extension shall have been completed in its entirety and thereafter maintained as such.”

The reasons for the conditions were to ensure satisfactory living conditions for neighbouring occupiers, and in the interests of the character and amenities of the area, both in accordance with policy D3 of the London Plan 2021 and policy DM10 of the LDF Core Strategy 2012.

In recommending the grant of planning permission, the officer’s report noted that:

“The application is supported by a daylight/sunlight assessment and the proposal would not result in any daylight/sunlight loss to neighbouring occupiers that are considered to cause harm to the existing living conditions of neighbouring occupiers. The separation distances, orientation and siting of the proposed extensions and fenestration in relation to neighbouring occupiers is such that the proposal would not result in direct or indirect adverse overlooking of neighbouring occupiers or create an [unnecessary] sense of enclosure. A condition is recommended to prevent future openings on the rear elevation to ensure the privacy is protected of neighbouring occupiers. It is considered that the proposed development would not adversely affect the amenities of the occupiers of neighbouring properties by reason of overbearing appearance, loss of light or loss of privacy.”

The events that took place before and after planning permission was granted are in issue, with Mr Hassan and Mr Heath each giving a different version of what happened, and of who said what to whom.

What is clear is that in various emails dating from April 2023, Mr Heath informed the applicants and their architects of the restrictive covenant. On 24 March 2024, Mr Hassan served a notice under s.1(5) of the Party Wall etc. Act 1996, stating that he intended to build on the line of junction between nos.24 and 24A, to extend the ground floor of his house. Mr Heath responded with two letters dated 9 April 2024. In the first he indicated that he didn’t consider it appropriate to respond to the Party Wall Act notice again reminding the applicants of the restriction on their title. His second was a letter before action, in which Mr Heath indicated that he intended making an application for an injunction restraining the applicants from continuing with the proposed work.

The applicants continued with the works. Mr Heath filed his claim with the Court for injunctive relief on 3 June 2024; Mr Hassan says that they were not aware of this until 19 July, by which time the works to extend the ground floor were half-completed. No works to the roof had started. An interim injunction was granted on 20 August 2024. There is a dispute as to whether the applicants continued with the works in breach of the injunction. There is a dispute over Mr Hassan’s exchange with the Deputy District Judge as to what he could do without breaching the injunction.

Some of the works carried out to date were not in accordance with the planning consent: a front canopy has been installed above the front door, the existing element of the single storey has been increased in height by about 200mm, and a rear ground floor window, facing Mr Heath’s property, is about 400mm too high.

As it stands, the work to extend the roof and convert the loft has not started. The work to extend the ground floor, to bring it up to the boundary between the two properties, has been started but not completed. Other walls and doors have been installed to make the ground floor watertight. The applicants are not currently living at no.24.

It was common ground that the majority of the works – extending the ground floor and raising the roof – are caught by the restriction. Whether ‘the external … elevation of the dwellinghouse shall not be altered or permitted or suffered to be altered’ includes the alterations to the windows or doors was in issue, Mr Brown submitting that the alterations are plainly caught by the restriction, Mr Moys arguing that the meaning is much looser than that, and refers to meaningful alterations to the building when viewed as an elevation.

In Triplerose Limited v Patel [2018] UKUT 0374 (LC), the Tribunal (Martin Rodger QC, Deputy Chamber President) was satisfied that a leasehold covenant which prevented a tenant from making ‘any alteration in the elevation’ of a flat had been breached by the tenant replacing a window with a door of the same dimensions. The Tribunal found that the First-tier Tribunal (Property Chamber) had read too much into a decision in Joseph v London County Council (1914) 111 LT 276. The Deputy Chamber President commented [15]:

“It is not necessary to refer to a specialist legal dictionary or to the observations of an Edwardian judge to identify the natural and ordinary meaning of the word “elevation”. It is not a term of art, and unless it is being used in some special or technical sense it can be understood by anyone familiar with ordinary usage. The word has a number of meanings in different contexts. In architecture or surveying it means a drawing of a building on a vertical plane, as opposed to a ground plan; by extension it means not simply a drawing of the vertical plane but the vertical plane or exterior of the building itself.”

In my judgment the alterations which the applicants wish to make, and have made, to door and window openings constitute an alteration to elevations, and are therefore works which are prevented by the restrictions.

While originally pleaded as an application for discharge under grounds (aa) and (c) of section 84(1) of the Act, at the hearing Mr Moys confirmed that the application now is for modification solely to enable the works to be completed, relying only on ground (aa).

Ground (aa) is satisfied where the restriction impedes some reasonable use of the land for public or private purposes. For such an application to succeed the Tribunal must also be satisfied that, in impeding that reasonable use, either the restriction secures no practical benefits of substantial value or advantage to those with the benefit of the restriction, or it is contrary to the public interest. The Tribunal must also be satisfied that money will provide adequate compensation for any loss or disadvantage which that beneficiary of the restriction will suffer from the proposed discharge or modification.

In determining whether a restriction ought to be discharged or modified under ground (aa), the Tribunal is required to take into account the statutory development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the area. It must also have regard to the period at which and context in which the restriction was imposed and any other material circumstances.

Section 84(1) provides that the Tribunal, upon being satisfied that either of the grounds is made out, ‘shall… have power’, by order, wholly or partially to discharge or modify the restriction. As the Supreme Court explained in Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 this involves a two-stage process. First, in what the Supreme Court called the ‘jurisdictional stage’, the Tribunal must be satisfied that one of the prescribed grounds is made out. If so, in the ‘discretionary stage’, the Tribunal must then decide whether and to what extent to exercise its power to discharge or modify. The parties’ conduct might play a part in that decision.

The Tribunal may direct the payment of compensation to make up for any loss or disadvantage suffered by the person entitled to the benefit of the restriction, or to make up for any effect which the restriction had, when it was imposed, in reducing the consideration then received for the land affected by it.

Mr Hassan explained his family’s circumstances, and the difficulties they face in looking after Ali. He explained that No.24 is not suitable for them, as it only has two bedrooms. They bought it in the hope of being able to extend it. He said that they were aware of the restrictive covenants when they bought the property, but were advised by their solicitor that the covenants would not be an obstacle to what they were planning to do. He acknowledges that Mr Heath had alerted him to the restrictions, but given the advice he had received from his solicitor, he didn’t think it prevented him from proceeding. He said that his attitude could be summarised as ‘Mr Heath, you keep threatening me with Court, please proceed and I will respect whatever the Court decides’. He says that he now realises how ‘powerful’ the restrictions are, and has complied with the injunction pending his application to the Tribunal.

Mr Heath is a former opera singer, with qualifications in art and design. He spends three quarters of the year in his conservatory, which he uses as an office and a place to relax. It has views out to his well-tended garden. The side and part rear of no.24 is in plain view. He considers that the proposed roof alterations are completely out of keeping with the character of the area, and with the ‘flow’ of the two buildings when considered together. The proposed roof works would have an oppressive effect on his garden and his conservatory. Despite them receiving planning permission, he considers them ill-designed, akin to a shed on top of the roof. He is slightly more relaxed about the ground floor works, but objects to the window in the rear elevation, which he says [and as the experts note – see below] is higher and larger than that permitted by the permission, and causes light pollution into his conservatory. He says that the canopy which has been erected above Mr Hassan’s front door is out of keeping with the style of the property, and (as I have indicated above), is partly over his land. For Mr Heath, his objection is not about money, it is about the oppressive effect the works would have on his enjoyment of his property.

The valuation experts submitted a brief, but helpful, joint statement with ‘before and after’ photographs appended. They observed that part of the works carried out ‘are not strictly in accordance with the planning permission to the extent that the following changes have been made which will be visible from 24A:

The experts confirmed their agreement that having had regard to aspects of both the consented development and the development as built, they were of the opinion that provided the works were properly completed either as consented or with changes as described [a)-c) above] that there would be no diminution or impact on the market value of no. 24A.

I have had regard to fact that other properties in the area appear to have carried out alterations to roofs, similar to that proposed by the applicants here. I am also mindful that the parties to this application were not the original parties to the restriction. I have also noted all the applicants say about Ali, and their need to provide care for him.

Both counsel framed their submissions by reference to the list of questions posed in Re: Bass Ltd’s Application (1973) 26 P&CR 156. While this convenient shorthand is not a substitute for an examination of the relevant provisions in the Act, given the parties have used it, I adopt this format.

The objector accepts that if constructed in line with the planning permission, the proposed works would be a reasonable ‘user’ [use] of the land. That is not the case if the works are at odds with the permission. However, for the purposes of this question, given the experts’ agreement and in the light of the variation from the planning consent being relatively minor, it seems to me that the works would constitute a reasonable user of the land. That is a different, preliminary, question, from whether the restrictions should be modified to allow them.

It is common ground that the restrictions impede that user. At the hearing, Mr Moys very fairly accepted that the restrictions secure a practical benefit to Mr Heath. I have no doubt that they do. The ability of the objector to control any building or alterations on the subject land is clearly a practical benefit.

Is that practical benefit of substantial value or advantage? These are alternatives. As for substantial value, the question is normally answered by assessing the impact of the proposed modification on the market value of the objector’s property. The higher the level of impact, the more likely that the benefit would be considered substantial. Having inspected both properties, I am satisfied that the practical benefit of the ability to prevent the works is not of substantial value. I doubt that a prospective purchaser, fresh to the scene with the works having been completed, would alter their bid from that without the works having taken place. The valuation experts take the same view.

Whether the practical benefit secured by the restrictions is of substantial advantage is a different question. In my judgment the proposed alterations can be considered in two parts – the roof works and the ground floor works.

Having stood in Mr Heath’s property with the benefit of the plans and drawings in the planning documents, I agree with him that, despite having planning permission, the increase in height of the roof structure would have a significantly overbearing effect on his conservatory and garden. I have no doubt that the ability to prevent the substantial alterations to the roof is a practical benefit of substantial advantage to him. On that basis, as regards the roof, the applicants’ reliance on s.84(1A)(a) fails.

I must also consider whether impeding the proposed user is contrary to the public interest (s.84(1A)(b)). Mr Moys, wisely in my view, did not press this point, describing it in his skeleton argument as being of tangential (if any) relevance. He described the applicants’ position as being that they are not presently able to reside as a family in no.24 without the works being completed, and it was in the public interest that their family live together.

In Shephard v Turner [2006] 2 P&CR 27, at [58] Lord Justice Carnwath, as he then was, explained that the purpose of ground (aa) was to provide a fair balance between the needs of public and private developmentand the protection of property rights.

In The University of Chester’s Application [2016] UKUT 0457 (LC), (in which an application was dismissed despite the proposed user having planning permission), the Tribunal (Martin Rodger QC, Deputy Chamber President and myself) explained that the test is not whether the proposed use afforded by the modification is in the public interest, it is whether in impeding that use, the covenants are contrary to the public interest. At [82], the Tribunal said:

“… We take the view that before it can be determined that the restrictive effect of a covenant is contrary to the public interest it is necessary to make a broad assessment not only of the beneficial use which is prevented by the covenant but also of the advantages which it secures to those entitled to the benefit of the covenant.

83.

In Re Collins’ Application (1975) 30 P&CR 527, at 531, the Lands Tribunal (Mr Douglas Frank QC) implied that in weighing this balance between public interest and private rights, considerable weight should be given to private rights:

‘In my view for an application to succeed on the ground of public interest it must be shown that that interest is so important and immediate as to justify the serious interference with private rights and the sanctity of contract.’ ”

It is therefore necessary to balance the objector’s ability to prevent the applicants’ proposed use, against the interference with Mr Heath’s property rights should the modification be permitted. Mr Hassan very fairly accepted that when they bought No.24 they knew it was too small for them as a family, and that they were aware of the covenants (being advised, as I have said above, that they would not be an obstacle to development). I have sympathy for the applicants, and am mindful that they simply want to do what is best for Ali, but I am not persuaded that this overrides Mr Heath’s objective to maintain the restrictions which were in place when the parties bought their properties, or that by maintaining the status quo the covenant is contrary to the public interest.

Accordingly, as regards the element of the application to modify the restriction to enable the roof alterations to take place, I refuse the application.

The situation as regards the ground floor extension is more nuanced. In respect of the works permitted by the planning consent, I can see nothing particularly objectionable in them. I also consider the slight increase in the height of the ground floor element, said by the expert valuers to be in the order of 200 mm, to be relatively innocuous, noting that they drew no distinction in terms of effect on value. As regards the window in the rear elevation which does not comply with the planning drawings, Mr Heath was concerned about overlooking and an effect on his privacy; but from my site inspection it was apparent that this is only an oblique view of part of his conservatory when standing on the applicants’ stairs. He was also concerned about light pollution but in my view, this is likely to be little more than light spilling from other windows of no.24, or of the window if it were the correct size. Finally, as regards the front canopy, it faces away from no.24A and would be an irritation to Mr Heath, but not much more. While I have sympathy with Mr Heath’s view that it does not appear to be in keeping with the age of the property, I include it in the group of alterations which the expert valuers have noted, above.

In my judgment, the ability to prevent the applicants from carrying out (or, in practical terms, completing), the ground floor works proposed, including the variations from the planning consent, is not of substantial advantage to Mr Heath. For these works, I am satisfied that I have jurisdiction to modify the restrictions.

The applicants having succeeded under ground (aa) insofar as the ground floor works are concerned, I must consider whether to exercise my discretion to modify. The thrust of counsels’ submissions on this point was the applicants’ conduct, specifically that the works had already begun in breach of covenant. Mr Moys submitted this was not a case of a deliberate and cynical attempt to present the Tribunal with a fait accompli. Whereas Mr Brown contended that the Applicants had blatantly disregarded the restriction.

I can deal with this fairly shortly. I do not consider that the applicants have ‘cynically breached’ the restrictions, in the Alexander Devine sense. They appear to have been ill-advised, and possibly naïve. Once the injunction was in place, after some work to keep the property watertight, work stopped. Nothing has been done to the roof.

I am satisfied that I should exercise my discretion to modify the restrictions, to enable the ground floor work to be completed, including the retention of the extra height to its roof, and the retention of the rear window that has been installed, together with the second proposed rear window to align with the extant one.

The alternative, of refusing consent and exposing the applicants to the risk of an injunction requiring them to remove the work, would be disproportionate to the offence and to the very modest impact which the retention of the work will have on Mr Heath’s enjoyment of his property. I do not know whether the Court would be minded to compel the removal of the works, but I am satisfied that it would be no service to the parties to duck that issue and to leave them to continue their dispute before the Court. The better course, is my judgment, is to resolve the long term issue in this forum by modifying the restriction.

Accordingly, I will modify the restrictions to permit the ground floor works, but not the roof works, permitted by planning consent 23/02899/HOU, to include the current height of the ground floor extension, the current rear window at ground floor level in the rear elevation, together with the second proposed rear window to align with the extant one.and the front canopy. No other variations from the planning consent shall be included in the modification.

The application is allowed, in part, and the parties are now invited to agree the wording of the modification to put this into effect, and submit an agreed order within 14 days of the date of this decision.

The parties are directed to confirm within 14 days whether costs have been agreed, otherwise the Tribunal will issue further directions for the service of costs submissions.