Kevin James Harrison-Ellis & Anor v Stuart Gerald Hunt & Anor

This is an application for the Tribunal to discharge or modify restrictive covenants that burden the title of Hillside, Fairfield Road in Goring. The applicants, Mr and Mrs Harrison-Ellis, purchased Hillside in March 2020; they have since altered and enlarged the house in breach of restrictive covenants (“the restrictions”) imposed in 1965 in favour of the property diagonally opposite, known as Korobe, which belongs to the objectors Mr and Mrs Hunt.

We made an accompanied site visit to Hillside and Korobe on 27 June 2025 and are grateful to the applicants and the objectors for inviting us into their homes.

The applicants were represented by Mr Andrew Skelly and the objectors by Mr Paul Clarke and we are grateful for their submissions.

In this decision we first set out the factual background to the application, which is agreed except where we indicate that there is a dispute. Then we look at the legal background, being the provisions of s.84 and the grounds on which the Tribunal may modify the restrictions. We then look at those grounds in turn and explain our conclusion.

Fairfield Road is a private road which runs approximately north to south along a hillside on the eastern edge of Goring-on-Thames. The detached houses on the eastern or upper side of the road sit in generously sized plots and date predominantly from the 1920s and 1930s; they have spectacular views across the “Goring Gap”, where the Ridgeway crosses the Thames and rises to the Berkshire Downs. Houses on the western or lower side of the road have much smaller plots and date mostly from the 1960s.

The plan below shows the location of Hillside and its neighbours on the western side of the road and the location of the objectors’ property Korobe on the eastern side diagonally opposite. Point X is the original access to Korobe, before redevelopment. Point Y is the newly opened access in current use. To the west of Hillside is Meadow Close, built in the 1960s or 1970s.

At one time the land on which Hillside, Claremont and Gap House are situated was in the same ownership as Korobe. In August 1960 planning permission was granted for a detached bungalow and garage at Hillside. On 25 August 1965 the plot was sold subject to the following restrictions in favour of Korobe and the land on which Claremont and Gap House now stand:

“(1)

Not to erect or cause or permit to be erected any building whatsoever nearer to Fairfield Road than the building line established by the eastern face of the single storey dwellinghouse at present erected on the land adjoining that hereby conveyed on the south and known as “Chesil Bank” Fairfield Road aforesaid

(2)

Not to erect or cause or permit to be erected on the remainder of the land hereby conveyed any other building than one single storey dwellinghouse with the usual outbuildings and appurtenances thereto but so that the Purchaser shall be at liberty to incorporate in the roof of any such dwellinghouse bedroom accommodation with dormer windows provided that the said dormer windows shall be situated on either the western or southern slopes of the roof of the said dwellinghouse and not on the northern or eastern slopes thereof

(3)

That the height of any such building hereafter to be erected on the land hereby conveyed shall be limited so that no part thereof shall rise above the existing level of the ridge of the roof of the said single storey dwellinghouse known as “Chesil Bank”

...”

It is agreed that the ridge height of the neighbouring single storey house, Chesil Bank, was raised by 70 cm in 2005. The restrictions of course require that development of Hillside be limited by reference to the original height of Chesil Bank.

On 20 July 1968 planning permission was granted for a detached bungalow with garage on each of the two plots now known as Claremont and Gap House. The plots were sold to separate purchasers on 1 April 1969, subject to restrictions permitting development of a single storey dwellinghouse, limiting the forward building line to that established at Hillside, preventing the siting of dormer windows in the eastern slope of the roof and preventing any windows in the eastern elevation except at ground floor level. Those plots retained the benefit of the restrictions over Hillside, but no objections to this application were received from the owners of Claremont and Gap House.

The objectors purchased Korobe, at that time a five-bedroom dormer bungalow, in August 2019. Mr Hunt’s evidence, which we accept, was that when he and Mrs Hunt bought Korobe in 2019 they were not made aware of the restrictions from which it benefited. At that time Korobe was thoroughly shielded from view, both from Hillside and from passers-by on the road, by a flint and brick wall and hedge; from the bungalow in its elevated situation one could see out across the Goring Gap, but it was not possible to see the bungalow from below on the other side of the wall. The objectors lived elsewhere in Goring and let it under an eight-month tenancy agreement from 1 November 2019 until 30 June 2020.

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.

In May 2021, some months after completion of the development at Hillside, the objectors obtained planning permission to demolish the dormer bungalow and replace it with a new three storey house of contemporary design.

With their application for planning permission the objectors submitted a “Landscape and Visual Impact Assessment”, prepared by ASA architects. In discussing the visual impact of the strikingly modern building proposed, it said:

“7.14

There is a glimpsed view of the site and house from Fairfield Road opposite the entrance driveway [at point X on the plan in this decision]. This is a transient view and is not likely to be significant or detrimental to the motorists experience. Views in front of the property are not possible due to the existing wall and mature hedging VP1.

8.2

The magnitude of change will be locally high from the neighbouring property, but as discussed, this impact can be perceived as positive or negative. The impact from the road would be low as only a transient glimpse would be possible.”

The Assessment stated that no new accesses were proposed, and none was shown on the approved plans.

Redevelopment took place over the following years and was reaching completion at the time of our site inspection. During that period a new vehicular access to Korobe from Fairfield Road was opened up at point Y on the plan above, by the demolition of a section of the traditional brick front wall and the removal of a section of the substantial evergreen hedge along the road frontage. The remaining hedge along the road frontage was reduced in height and width. A lamp-post on the street was moved so as not to obstruct the new access; Mr Hunt’s evidence (which we accept) was that all the lamp-posts in the village were being replaced by the local authority, and that he wanted the replacement to be lighting bollards instead of a post. As a compromise it was agreed that the new lamp-post would be in the location he wanted.

Korobe stands within a sloping plot of 0.65 acres. The newly developed property is a substantial three storey house of contemporary flat roof design providing 4,090 sq ft of estimated gross internal floor area. The first and second floors on the front elevation feature timber cladding and extensive glazing, floor-to-ceiling on the first and second floor. The stepped back structure allows for roof terraces at first and second floor levels. The ground floor comprises an entrance hall, plant room, storage areas, a wine cellar, and garaging. Mrs Hunt will have a studio at this level, facing out towards Hillside. The first floor comprises a landing and hallway, master bedroom with en-suite bathroom and walk-in wardrobe, guest bedroom with en-suite bathroom and walk-in wardrobe, two further bedrooms, a family shower room and a utility room. The first floor terrace at the front of the house includes an integral small swimming pool. The second floor comprises a living room, dining room, kitchen, sitting/TV room, WC, study and upper terrace. A lift at the centre of the property provides wheelchair access to all floors.

The view from the main living rooms and the terraces at Korobe is westwards over the Goring Gap, with Fairfield Road in the foreground. Hillside sits to the left hand side of the view, seen through the new access created into Fairfield Road, as shown in the photograph below. Claremont sits directly in the front of the view and Gap House sits to the right hand side, partially obscured by its own hedge.

The new opening means that the whole frontage of Korobe is open to view to passers-by, who can see in at the windows because of their size

From the second floor terrace there is a view northwards directly into the upper floor windows of St Kilda. We understand that obscure glass panelling is to be installed to retain the privacy of St Kilda. Korobe has an extensive garden rising up from the rear of the house, from most of which the views of Fairfield Road are obscured by Korobe itself.

On our site visit to Hillside we observed the outlook from the first floor dormer windows across Fairfield Road towards Wayland, immediately opposite, and Korobe to the left hand side. The roadside hedge at Wayland is higher than at Korobe, so visibility is confined to the first floor windows which have glazing bars so it is not possible to see through them. By contrast, Korobe has large expanses of glazing at first and second floor levels which permit visibility into the rooms beyond. From the ground floor at Hillside no windows at Wayland are visible, due to the hedge height, but the second floor windows at Korobe remain visible. First floor windows are visible from Hillside when looking obliquely through the new opening, as seen in the picture below.

On 7 August 2023, the owners of Claremont applied for planning permission to develop their property with the installation of three Velux windows on the eastern slope of their roof, facing Korobe. The objectors entered into discussion with them about the restrictions, as a result of which an amended application was made removing the roof lights in that slope. The resulting development is a single storey dwellinghouse with living space in the roof and is compliant with the restrictions

Around January 2023, over two years after the completion of the development at Hillside and whilst engaged in redevelopment of Korobe, the objectors wrote to the applicants protesting that they had extended their home in breach of the restrictions. Solicitors were later instructed and legal proceedings were brought against the applicants in the Oxford County Court on 18 August 2023. A trial of a preliminary issue took place on 22 July 2024, at which the applicants argued that the covenants did not apply to their house itself but only to any second building; the Judge found for the objectors. The applicants were granted a stay of those proceedings in order to bring this application, which they made on 15 August 2024

Section 84 of the Law of Property Act 1925 provides, so far as is relevant:

“(1)

The Upper Tribunal shall … have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied-

(a)

that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete; or

(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or

…

(c)

that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction;

and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either—

(i)

a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or

(ii)

a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.

(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of the land in any case in which the Upper Tribunal is satisfied that the restriction, in impeding that user, either –

(a)

does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b)

is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.

(1B) In determining whether a case is one falling within section (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.”

Section 84 sets out grounds on which the Tribunal may have jurisdiction to modify the restrictions. If it finds that it has jurisdiction on one or more of the grounds then it has to decide whether to exercise its discretion to do so. Both jurisdiction and discretion are in issue here so we look at them in turn.

Does the Tribunal have jurisdiction to modify the restrictions?

The applicants originally sought discharge or modification of the restrictions, but amended that at the hearing to an application for modification of the restrictions to permit the works done in breach of them. The application was made under grounds (a), (aa) and (c).

As to ground (a), the objectors say that the restrictions are not obsolete since there has been no change in the character of the property or the neighbourhood or other circumstance which should cause them to be deemed so. As to (aa) they do not dispute that the works are a reasonable use of Hillside but say that the restrictions secure to them the substantial practical benefits of a view, of not being overlooked, and of discouraging breaches of covenant at Gap House and Claremont. They say that money would not be adequate compensation. Their expert witness says that the works have resulted in a 10% diminution in value of their property, equivalent to £230,000. The objectors also say that even if the Tribunal finds that it does have jurisdiction to modify the restrictions it should not exercise its discretion to do so because the applicants attempted to mislead them, and then carried out the works without making an application to the Tribunal, knowing that they would be in breach of the restrictions.

Mr Skelly submitted for the applicants that in the 60 years since the restrictions were imposed the character of the neighbourhood has changed - with the building of the Meadow Close development behind Hillside; alterations to Chesil Bank which included raising the height of the roof, and the redevelopment of Korobe and of other properties along Fairfield Road. In all the circumstances the restrictions should be deemed obsolete.

Mr Hunt produced copies of planning permissions dated 1962, 1963, 1964 and 1966 relating to land to the west of Gap House, which he said indicated that Meadow Close had already been built, or was being built, when the restrictions were imposed, and that that development was known to the original parties who nevertheless imposed the restrictions. Mr Clarke argued that there has therefore been no change in the character of the property or the neighbourhood or other circumstance such that the restrictions should be deemed obsolete. Mr Hunt expressed the view that the character of the properties on Fairfield Road remains such that the parties to the covenant in 1965 would find everything familiar, except for Hillside itself.

As to Meadow Close, we have no evidence that indicates whether or not it was built, or partly built, by the time the restrictions were imposed, nor as to whether the parties to the 1965 conveyance knew or did not know that a housing estate was in prospect. However, even had it been shown that Meadow Close was not in anyone’s contemplation in 1965, we would not have found that its development made the restrictions obsolete. Meadow Close is further away from Korobe than the land on which Hillside and its neighbours stand, it is behind fencing and is not particularly intrusive upon the view across the valley, whereas Hillside and its neighbours are in direct view; the height and appearance of all three houses still matters to the owners of Korobe and the development of Meadow Close has not changed that.

As to the surrounding houses, and Korobe itself, there has of course been a lot of change. There are some modern houses, of which by far the most striking is Korobe itself, whose appearance is out of keeping with the properties on the burdened land. Hillside by contrast does look rather different from its neighbouring bungalows but is not stylistically inconsistent with them to the same extent as Korobe itself.

Nevertheless, we take the view that the covenant is not rendered obsolete by these changes in the character of the neighbourhood. The house on Korobe is built for its view, as was no doubt its predecessor, and the covenants can still fulfil their purpose. The application based on ground (a) fails.

The Tribunal will have jurisdiction to modify the restrictions on ground (aa) if it finds that they are impeding some reasonable use of the land, and that in doing so they do not secure to the owners of Korobe any practical benefits of substantial value or advantage (the alternative public interest ground is not relied on), and that money will be an adequate compensation for any loss or damage they will suffer as a result of the modification.

As we said above, there is no dispute that the extension of Hillside is a reasonable use of the land. The issues therefore relate to practical benefits and to value. In the paragraphs that follow we consider

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.

Privacy: prevention of overlooking

The objectors’ second complaint is loss of privacy; it is possible to see into Korobe from the dormer windows in Hillside’s upper storey. Mr Clarke argued that the prevention of that invasion of privacy was a practical benefit conferred by the restriction – and indeed the applicant’s expert valuer, Mr Green, acknowledged that the loss of privacy led to a loss in value (see below).

Mr Kempton, the objectors’ valuation expert, commented that the practical benefits of the restrictions were even stronger for the redeveloped Korobe than the previous property due the extra glazing and the resulting loss of privacy to the occupants. As we saw when we visited, when looking up at the first and second floor windows, the large expanses of glass allow a view through into the rooms beyond. That is a design choice which has reduced the privacy which the objectors can expect to enjoy, whether from a dormer window at Hillside or from a pedestrian in the road. By contrast, the first floor windows at the neighbouring property Wayland can also be seen from the dormer windows at Hillside, but their design does not permit any view through into the rooms.

We agree that in preventing dormer windows on the east side of Hillside the restrictions prevent the occupants of Hillside looking into Korobe from the first floor of Hillside and through the floor-to-ceiling glazing on the first and second floors of Korobe. Mr Skelly argued that in considering whether that was a practical benefit to the objectors we should take into account the objectors’ own actions and preferences. They have chosen to redevelop their home with huge windows. They have chosen to open up the access at the front, which means that both passers-by, and the occupants of the ground floor at Hillside, are able to look in at Korobe’s windows just as much as the occupants of the first floor.

We agree that the addition of the second storey dormer windows at Hillside means that Korobe’s privacy is reduced. It is a very slight reduction in view of the fact that it is possible in any event for the occupants of Hillside to look into Korobe from the ground floor and for passers-by to look into Korobe from the street. It is a practical benefit, but certainly not of substantial advantage for that reason. Again, whether it is of substantial value is a matter for the valuation experts to whose evidence we now turn.

The expert valuation evidence

Expert evidence for the applicants was given by Mr Nicholas Green MRICS, Managing Director of the CoreProp Group Limited, based in London. Mr Green’s report was dated 10 April 2025 but he had not personally inspected Hillside and Korobe until the week before the hearing. The inspection upon which his report was based was carried out by Mr Dillon Loupos of CoreProp, who is not a chartered surveyor. Mr Green’s report was styled as an RICS Red Book valuation report, with five declarations concerning expert evidence at the front. In particular, Mr Green declared at paragraph 1.4 “I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not.” But the only place in the report where Mr Loupos’s involvement was mentioned was a two line paragraph within the “RICS Standard Valuation terms and Conditions” provided at Appendix 3 of his report, which does not fulfil the commitment to explain in the report what is within the author’s own knowledge and what is not. Mr Green’s report therefore fell short of the standards expected of expert witness evidence, as set out in Part 35 the Civil Procedure Rules and in the RICS Practice Statement: Surveyors acting as expert witnesses (4^th edition as amended in 2023), both of which he declared he had understood and complied with.

When giving oral evidence Mr Green said that he had worked closely with Mr Loupos to consider the details of Hillside and Korobe, and their market value in the context of comparable evidence, and that the opinions were his own. Mr Green’s instructions had been to provide opinions of market value for Hillside and Korobe before and after the works in 2020, and also with and without the works as at March 2025. Without the benefit of a personal site inspection, his assessment of the impact of the works on the amenity of Korobe was derived only from photographs, plans, and discussions with Mr Loupos. Mr Green said that he had inspected both properties the week before the hearing and had the inspection given him any cause to change his opinion he would have put that in writing to the Tribunal. But he had not changed his opinion.

Expert evidence for the objectors was given by Mr Malcom Kempton FRICS, founding director of Kempton Carr Croft in Maidenhead. He had inspected Korobe on 7 November 2024 and inspected both Hillside and Korobe with Mr Loupos on 13 March 2025. Mr Kempton’s instructions were to provide his opinion of the current market value of Korobe, assuming that the works had not taken place, and to give his opinion of the practical benefits secured to the owners of Korobe by the restrictions. He was asked to give his opinion of the value of Korobe with the works in place, and how this would be affected if the Tribunal modified the restrictions, which might encourage the owners of Claremont and Gap House to seek similar modifications. Finally, he was asked to give his opinion on the value of Hillside with and without the works.

In their joint statement, the experts agreed the market values of the two properties as at 31 March 2025 as follows:

It was Mr Green’s opinion that the diminution in value of Korobe caused by the works was £13,000 and Mr Kempton’s opinion that diminution was 10% of the market value, i.e. £230,000.

Mr Green said that dormer windows were “a dime a dozen” in the locality (by which we understand him to mean they are very common) and that a view of a nicely finished house was preferable to that of a dilapidated bungalow. In his view a purchaser would not consider that there had been any loss of view of the countryside since without the works the view beyond Hillside would be of the roofs in Meadow Close, albeit further away than the dormers at Hillside. A prospective purchaser of Korobe would weigh the view of Hillside as just one aspect of the property when forming their opinion of value for an offer. He drew the analogy of a property with a particularly attractive tree, which might not add value to a property, or at least no more than perhaps £3,000, but would improve the purchaser’s opinion of it. Mr Green explained that his figure of £13,000 was derived from £10,000 for loss of privacy and £3,000 as a nominal figure for visual impact. We note that Mr Green’s figure of £13,000 originally related to his understanding that the ridge height at Hillside was in breach of the restrictions by 0.7m. He later acknowledged that the actual breach of height was 1.2m, by reference to the original roof height of Chesil Bank, but did not amend his view of the impact on value.

Mr Green was asked to comment on Mr Kempton’s opinion that the works caused a 10% diminution in value to Korobe. He described this as a figure “out of mid air”. In the context of other negative factors affecting the property, such as the steep garden, the requirement to contribute to the upkeep of a private road, the costs of maintaining the internal lift, and the hard floors throughout, the view of Hillside was just one factor and to attribute 10% to it was “a nonsense”. Unlike Mr Kempton, Mr Green had not been asked to consider any impact on value should similar works be carried out to Claremont and Gap House.

Mr Kempton was not able to explain how he arrived at his figure for diminution of 10%, but said that a percentage figure was the best that one could do when there was no comparable evidence to rely on. Potential purchasers of high value properties would be discerning and would look at a property in the round; if there was something adverse they would decrease the price they would pay. The raised ridge height at Hillside had allowed bedrooms to be constructed at first floor level, and the dormer windows for those bedrooms gave views up towards Korobe. It was his opinion that the effect of the works was significant. Korobe had lovely picture windows, but the height of Hillside and the dormer windows hit you straight away. The practical benefits of the restrictions were even stronger for the redeveloped Korobe than the previous property due to the extra glazing and the resulting loss of privacy to the occupants. However, Mr Kempton acknowledged in oral evidence that a newer house was better to look at than a dilapidated bungalow, and that the picture windows had been designed primarily to take advantage of the views beyond Fairfield Road, at a time when the works and dormer windows were already in existence.

Mr Kempton was asked to comment on the fact that Hillside is now particularly visible through the newly opened access to Fairfield Road, which may not be authorised in the planning permission for Korobe’s redevelopment. He was not able to comment on whether there was any breach of the planning permission and conditions, but assumed that if there was the dismantled wall and hedge would be reinstated. We pause to say that that assumption has no evidential value; the objectors have not suggested that the new access is temporary.

Mr Kempton acknowledged that the new opening allowed views up and into Korobe from Fairfield Road, affecting its privacy from a point closer to the house than the windows at Hillside. However, he considered that even without the new opening the presence of the dormer windows would still have a significant impact on Korobe and he would not change his opinion of the effect on value.

Finally, Mr Kempton was asked about the likely impact on value of any modification by the Tribunal to permit the works, taking into consideration that both Claremont and Gap House were subject to similar covenants. He considered that further modifications at those two properties, permitting up to four more dormer windows to look up into Korobe, would have a dramatic effect on its privacy and amenity. It would also change the streetscape completely. It was not possible to put a value on that, but the prospect and the uncertainty would be a deterrent to prospective purchasers of Korobe.

In the round Mr Kempton concluded that the restrictions secured to the owners of Korobe practical benefits of substantial value and advantage, the loss of which could not be adequately compensated by money.

We see no evidence to support Mr Kempton’s view that the restrictions secure benefits worth £230,000. He said that “the best he could do” was to take a percentage figure, but he has provided us with no help in relating that figure to the reality of the property market. We regard it as not only unsupported by evidence, but also greatly out of proportion to the effect upon the value of Korobe of the extension of Hillside.

We asked Mr Green to comment on his figure of £13,000 in the context of the way in which purchasers frame their bids for a property – which in the Tribunal’s experience is usually in increments of £5,000 or £10,000. This prompted him to say that he had allowed £10,000 for loss of privacy and a nominal sum of £3,000 for visual impact.

We have described the practical benefits secured by the restrictions as small, and we consider that a sum of £25,000 would be adequate compensation for their modification. This we consider to be a typical incremental figure in negotiations for purchase of a house worth £2,300,000, evidenced by the final sold prices provided in comparable evidence by the two experts. On that basis the benefits conferred by the restrictions, in terms of protecting Korobe from the visual impact of Hillside as it now is and from the effect of the extended Hillside on the privacy of the occupiers of Korobe, are not of substantial value.

The sincerity of the objectors’ position

Mr Skelly argued that the objectors have demonstrated by their actions that they are not concerned about their privacy. He referred us to Preston and Newsom 12^th Ed, 13-029 where it is said that an objector must always establish by evidence that their predilections are sincere and reasonable, and that in a case where objections were found to be frivolous or capricious – even if sincerely held – “the Tribunal would presumably say that the benefits alleged were not practical.” Two cases where the objectors were specifically found to be sincere are referred to, but none where a claimed benefit was rejected on the basis that the objectors’ position was not sincerely held.

Mr Skelly submitted that the objectors had purchased Korobe without any awareness of the restrictions, so could not say that they had purchased in the belief that the restrictions would remain unaltered. They had designed and built their glass-fronted house in the knowledge of Hillside in its present form, knowing about the restrictions (because the applicants had told them about them) but without troubling to enquire or take advice about their scope. Despite the terms of the Impact Assessment (paragraph 25 above) which anticipated that there would only be glimpsed and transient views of the new Korobe they had opened up a new access through which “all and sundry” can look into Korobe. They can now see and be seen from the ground floor windows at Hillside, which was previously not possible due to the wall and hedge. In all those circumstances, Mr Skelly submitted that the objectors have demonstrated that they are unconcerned about either privacy or visual amenity, and that privacy and visual amenity are not a benefit to them.

That argument has some force. It was made in closing, and not foreshadowed in Mr Skelly’s skeleton argument, so Mr Clarke did not have the opportunity to respond. We take the view that the fact that the objectors did not rely on the restrictions when they purchased is not fatal to their case. As to their later conduct, they have demonstrated that they are not particularly concerned about privacy, by opening up the new access; they have not suggested that the new access is temporary. We think that they are genuinely troubled by the view of Hillside from Korobe. We have found that neither benefit is of substantial value or advantage, and that is consistent with the objectors’ conduct. That conduct is not sufficient for us to find that there is no benefit at all, but it will have a bearing on our decision about whether to exercise our discretion in the applicants’ favour.

Control of development at Gap House and Claremont

This is the familiar “thin end of the wedge” argument. For the objectors it was argued that if the Tribunal modified the restrictions to allow the dormer windows at Hillside to be retained it was likely there would be similar applications for modification from Claremont and Gap House. Mr Clarke said the objectors accepted that the owners of Claremont had very recently begun their compliant development, so would be unlikely to make an application in the near future, but at Gap House all possibilities remained, creating risk and uncertainty for the owners of Korobe and prospective purchasers.

We do not think that argument has any great force in a situation where there is no evidence of an appetite for development nearby (contrast the situation in Blue Angel Properties Limited v Jenner [2020] UKUT 360 (LC)). It is accepted that there is unlikely to be an application from Claremont; there is no evidence of any desire on the part of the owners of Gap House to extend or develop. Moreover the application is for modification, not discharge, of the restrictions; if granted it will permit only the extension of Hillside as it now stands and will not permit any future extension in breach of the restrictions, particularly in height. It is specific to this particular extension. Any future application from Gap House or Claremont would be decided on its own merits, and that is particularly significant in the context of a small group of three properties; this is not the case of a large area where single permitted change from single dwelling to flats is likely to precipitate more applications, as in Morris v Brookmans Park Roads Limited [2021] UKUT 125 (LC). An applicant would need to have an appetite for taking an application through to a contested Tribunal hearing, with the associated cost implications, and many owners would find that unattractive.

In our judgment, if the restrictions confer any benefit in preventing further applications, it is a small one and certainly not of substantial value or advantage.

None of the benefits claimed by the objectors is of substantial value or advantage, and their loss could easily be compensated in money as we have found above. We are directed by section 84(1B) to bear in mind “the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances”. As can be seen in the above discussion we have had regard to the comments of the planning officer who approved the works, to development nearby, to the changing character of development in Fairfield Road and to the variety of architectural styles now found there. Those matters only go to reinforce our conclusion that the Tribunal has jurisdiction to modify these restrictions.

We have concluded under ground (aa) that the restrictions did have an effect on the prospect from Korobe and have diminished its value albeit to an extent that is not substantial, and in light of that ground (c) cannot succeed.

Discretion

We have determined that we have jurisdiction to modify the restrictions under ground (aa). Should we exercise our discretion to do so?

The objectors say that we should not. They say that the applicants have acted in bad faith; they misled them about the content of the restrictions in February 2020, and then carried out their development knowing that they were in breach of covenant, without seeking consent or making an application to this Tribunal for discharge or modification.

We need to look again at incidents we outlined as part of the factual background, and resolve some conflicts of evidence.

First, the letter of February 2020 (paragraph 11 above). Mr Hunt maintained that the applicants deliberately mis-stated the content of the restrictions, by not mentioning the prohibition on dormer windows looking north and east and mis-stating the height restriction, in the hope that the objectors would simply consent.

We reject that suggestion. The letter is certainly inaccurate. It was written without legal advice. It is easy to over-estimate the ability of lay people to understand the language of conveyancers and the inaccuracy looks to us like the result of misunderstanding or of skim-reading. And it is likely that the applicants did not appreciate that the height of Chesil Bank had changed. It is not credible to suppose that the applicants really thought that the recipients of the letter would simply say “yes go ahead” – instead they invited discussion. It is not credible to suppose that they thought that a consent given in the light of a mis-described covenant would in fact release them from the restrictions. They offered to provide a copy of the restrictions, which is not consistent with an attempt to deceive.

On the other hand, Mr Harison-Ellis was challenged about his state of mind when that letter was written. It was suggested that he was well aware that he could not breach the covenants without consent. He did his best to argue himself out of that position, but it is clear to us that the applicants were well aware that they needed consent to go ahead with their plans; hence the phrase “with your permission.”

As we said above, Mr Hunt chose not to reply to that letter. He explained that he did not want to get involved with people who were “just house-hunters”, and did not want to go to the expense of engaging with them and taking advice. In retrospect he wished he had replied, and we can only agree that much trouble would have been prevented had he done so.

There was also a misunderstanding when Mr Urbick relayed to the applicants what Mr Hunt had said in response to his approach (paragraph 15 above). We accept Mr Harrison-Ellis’ evidence that he did not appreciate what a planning pre-application was and that he had thought that by hand-delivering details of the proposed application to the neighbours that was what they were doing. In any event he considered that the objectors had been notified of their intended planning application by that route, even though they were not among the neighbours notified formally by the Council after the application had been made. Mr Harrison-Ellis assumed that was because the Council did not think Korobe would be affected by the application. All of this took place during the Covid restrictions of 2020, which limited personal contact with neighbours.

We also accept the applicants’ evidence that when he visited them in December 2020 Mr Hunt expressed approval of their development and expressed the hope that they would not object to his – whether or not they have recalled his precise words. Mr Harrison-Ellis would have remembered very clearly, we think, if Mr Hunt had expressed any disapproval of the extension, and Mr Hunt did not suggest that he did so.

The development of Korobe began in 2022 and the new access was opened up closer to Hillside. Mr Harrison-Ellis said that the lorries using the access were noisy and in full view of the home office at the front of the house. In October 2022 the applicants built a bin shed in front of Hillside, “to block out the view and noise from the lorries”. The objectors thought that that might be a breach of the forward building line restriction; we accept Mr Hunt’s evidence that that was what prompted him at long last to get a copy of the restrictive covenants. The objectors applied to the Land Registry for a copy of the conveyance containing the restrictions, which they received on 10 January 2023. That was the first time they became aware of the full extent of the restrictions and Mr Hunt said they were astonished to realise that the applicants had breached the roof height restriction and the dormer restriction. He said that he and Mrs Hunt were aware that the same restrictions applied to Claremont and Gap House and were concerned that by failing to act it would appear that they placed no value on the restrictions.

Mr Hunt said that he attempted to open a discussion with the applicants over the breaches but, in the face of intransigence, the objectors were obliged to appoint solicitors. An offer of mediation had been rejected by the applicants and on 6 September 2023 court proceedings were issued against them.

Mr Clarke relies on the cases of Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 and Fosse Urban Projects Ltd v Whyte [2023] UKUT 286 (LC) in his submission that we should not exercise our discretionary power to modify the restrictions, because the applicants misrepresented the substance of the restrictions when writing to the objectors and then carried out the works knowing they were in breach of the restrictions.

Mr Clarke drew our attention to Fosse, a case where a new house had been built in breach of a covenant restricting use to garden land. The Tribunal (Mark Higgin FRICS) found at [83] that “The applicant’s ‘build first and apply later’ approach can be properly characterised as cynical. I therefore decline to discharge or modify the covenant to sanction the development.”

Use of the phrase “cynical breach” in this context arose in the decision of the Supreme Court in Alexander Devine which considered in particular how an applicant’s conduct should be taken into account by the Tribunal in the exercise of its discretion. The Tribunal, at first instance, had described the behaviour of the developer, Millgate, as “highhanded and opportunistic”. At [36] Lord Burrows said:

“36.

I interject here that the description of Millgate’s behaviour as “highhanded and opportunistic” is what some commentators, especially in the context of breach of contract, have described as “cynical”: …. In line with this, I shall use the phrase “cynical breach” as a useful shorthand description of the conduct of Millgate in deliberately committing a breach of the restrictive covenant with a view to making profit from so doing.”

Mr Skelly submitted that the situation here was very different from that in Alexander Devine and in Fosse. He submitted that the applicants here were not cynical, but naïve, and they have given evidence to explain why their conduct was not cynical. They are not experienced developers but, when they became aware of the restrictions, they were at pains to engage with the objectors, and found their approaches were resisted. They gained the understanding from Mr Urbick’s email that they should go through the planning system and that the objectors would engage at that stage. Although the objectors say (and we accept) they never received notification of the applicants’ planning application, either in draft form posted through the letterbox, or from the Council, the applicants believed that they had been informed.

By contrast, Mr Skelly submitted, it was astonishing that the objectors, who had carried out previous developments, were unaware of the restrictions when they decided to spend £1m on Korobe in order to redevelop it. When the applicants notified them of the existence of the restrictions, they chose initially not to engage because the applicants were “only house hunters”, and later to rely on the contents of the applicants’ letter for details of the restrictions. Moreover, they designed and built their house with the works in existence and were unconcerned until the matter of the bin store arose.

We agree that the applicants were not cynical. As we said above their letter of February 2020 got the content of the covenants wrong but was not an attempt to mislead; on the contrary it was an attempt to engage, to seek permission, to provide information and to devise a development that was satisfactory to all. In failing to engage with that letter the objectors missed a golden opportunity, and it is not right to penalise the applicants now for the objectors’ inaction.

We accept that the applicants thought they had done all that was needed in respect of the restrictions by applying for planning permission. They were wrong about that, they should have taken advice, and there may have been an element of wishful thinking, but they were not cynical.

Moreover the objectors appear to have been perfectly happy about Hillside until January 2023. They had no interest in the content of the restrictions until they took offence at the bin store. Their reaction to the bin store makes it clear that had they been the slightest bit unhappy about the extension of Hillside they would have taken steps to check the content of the covenants while the development was happening and before it was completed. They would have accepted the applicants’ offer of a copy of the covenants. They would then certainly have spoken up and asked for the development to stop had they not been happy. It is not right to penalise the applicants now, when reversing the extension will be expensive and destructive, for the objectors’ failure to act.

We do not understand why the objectors waited so long before finding out about the content of the restrictions when they could so easily have done so long before. We do not suggest that their indignation at the development is entirely insincere, but we take the view that it is exaggerated, in light of the fact that they were clearly unbothered until January 2023.

In our judgment any carelessness or naivety on the part of the applicants is far outweighed by the unfairness of the objectors’ behaviour, and we have no hesitation in exercising our discretion to modify the restrictions so as to permit the extension of Hillside as it stands.

The application succeeds; the restrictions will be modified so as to permit the development of Hillside as it stands, subject to payment of £25,000 compensation to the objectors.