Graham Victor Baker & Anor v Alan Cucknell & Ors

Mr and Mrs Baker are the owners of a workshop (‘the Workshop’) built on land (‘the Land’) which previously formed part of the garden of their erstwhile home near Cambridge. They have secured planning permission to demolish the workshop and replace it with a small bungalow (the ‘Bungalow’) but cannot implement the permission because in so doing they would breach a restrictive covenant which burdens the land.

In this application Mr and Mrs Baker seek to modify the covenant to enable them or a purchaser from them to implement the planning permission. The objectors live in neighbouring houses in Brunswick Court which have the benefit of the restrictive covenant.

Mr and Mrs Baker were represented at the hearing by Mr David Taylor who called Mr Jonathan Purkiss BSc(Hons) MRICS FAAV as an expert witness. The objectors had neither representation nor attended the hearing. They did, however, make submissions regarding the application.

I inspected the Land on the morning of the day before the hearing. I was accompanied by Mr Baker, and two of the objectors, Mrs Cucknall and Mr Simpson. I also viewed the Land from the first floor windows of Mr and Mrs Cucknall’s house (1 Brunswick Court) and inspected the gardens of the houses of Mr and Mrs Cucknall and Mr and Mrs Simpson (2 Brunswick Court).

The Land is a small rectangular plot approximately 30 metres long and 10 metres wide. It is in Fulbourn, a village about 4 miles southeast of Cambridge and is located just off Teversham Road, a minor road that links Fulbourn to the neighbouring village of Teversham. Access to the Land is by means of Brunswick Court, a small, private cul-de-sac.

To understand the context of this dispute it is necessary to examine how Mr and Mrs Baker became the owners of the Land. In 1989 when Mr Baker acquired the Land from his father it was part of a much larger site shaped akin to an inverted ‘L’ which contained a house and a range of outbuildings. In May 1999 Mr Baker sold part of the site to Hogger Homes, a local developer who subsequently built three houses now known as 1-3 Brunswick Court. The retained land contained the original house which was demolished and replaced by a new dwelling (now 3 Teversham Road) adjacent to the roadway serving the three new houses. Part of one of the outbuildings which was also on the retained land was remodelled to form the workshop for 3 Teversham Road. The three new properties and the retained land were and are subject to various covenants. In 2013 Mr Baker extended the workshop to accommodate his hobby of restoring vintage tractors and lorries.

Mr Baker lived in 3 Teversham Road from completion of construction until 2019 when he moved to Norfolk. It was his intention to sell the Land and pay off the mortgage on 3 Teversham Road. He anticipated that he would retain the ownership of the house and potentially move back to Fulbourn in later life. In the meantime, he would let it. However, following an increase in interest rates in the Autumn of 2022 this plan became untenable and in 2023 he was forced to sell the house. He was therefore left with the Land. The plan that follows below shows the extent of the original site, the Land and the positioning of the workshop, Brunswick Court and the house at 3 Teversham Road. It also shows the extent of a right of way (shaded) over part of Brunswick Court in favour of the Land. This extends to the point in Brunswick Court where the roadway takes a sharp right turn in front of 1 Brunswick Court.

In February 2023 Mr Baker obtained planning permission to build a three-bedroom bungalow on the Land. The site and floor plan below shows the internal arrangement and the positioning of the building, some 10 metres from the boundary with 1 Brunswick Court. The Land is separated from the house at 1 Brunswick Court by a double garage and a pathway such that the distance between the western elevation of the Bungalow and the eastern elevation of the house appears to be about 18 metres. According to Mr Baker the Bungalow would be 105m² in area, a little smaller than the Workshop which extends to 112m². It would be of conventional construction under a pitched tiled roof. The (western) elevation facing 1 Brunswick Court would contain a full height window/door approximately 3 metres wide serving the kitchen/dining area and a smaller three pane casement window in the end wall of the master bedroom. Space to park four modestly sized cars is envisaged at the eastern end of the site. The plan also shows the intended planting arrangements at the boundaries which were said by Mr Taylor to be part of the planning permission although no separate landscaping/planting plan was submitted as part of the planning application.

Teversham Road also contains a site currently under development by Hill Residential Limited, the entrance to which is directly opposite Brunswick Court. This scheme, known as Farehurst Park, contains 110 dwellings of various configurations together with landscaping, public open space and associated infrastructure.

In his witness statement Mr Baker said that he had spoken to a local builder about the timeframe for the building works in relation to the Bungalow and had been given a period of 6-8 months. At the hearing he confirmed that the timeframe did not include any time for demolition for the Workshop.

The covenant was contained in a Transfer of Part dated 28 May 1999 made between (1) the applicant, and (2) Trevor Brian Hogger, Roy Carter and Mary Russen who were together trading as Hogger Homes. The applicant sold back land for residential development of three detached houses, then with planning permission. Mr Baker, as vendor, agreed that the retained land would be burdened by the following covenant:

“Not to use the Retained Land for any purpose other than as a single private dwellinghouse with garden and garage and in particular not to use the same for the purpose of any trade or business”

At the hearing, in response to a question from the Tribunal, Mr Baker could not recall why he had agreed to be bound by the covenant.

Section 84 of the Law of Property Act 1925 gives the Tribunal jurisdiction to discharge or modify restrictive covenants affecting freehold and some leasehold land. So far as relevant to this application it says this:

“(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 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 subsection (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.

Importantly, section 84 confers a discretion on the Tribunal; if any of the various alternative conditions in sub-section (1) is satisfied, the Tribunal may discharge or modify the covenant but does not have to do so.

The applicant seeks modification of the covenant from its existing form to:

“Not to use the Retained Land for any purposes other than (i) as a single private dwellinghouse with garden and garage and (ii) a single storey bungalow with garden and parking space and (iii) in particular, not to use the same for the purpose of any trade or business”.

The applicant confirmed at the hearing that were the Tribunal minded to modify the covenant, he would be satisfied with a modification to only allow the construction of the building for which he had planning permission. The application was made under grounds (aa) and (c).

The applicants’ primary position is that the modification of the covenant will not injure the objectors at all, and nor does the covenant in its existing form secure for the objectors any practical benefits which are of substantial value or advantage to them.

The objectors’ collectively say that the restriction does secure practical benefits of substantial value or advantage to them and that money will not be an adequate compensation for the loss or disadvantage which they say will follow from any modification of the restriction. They also say that they will suffer injury from the modification sought.

Before I assess the parties’ submissions and provide my view on each issue I will firstly refer to the evidence provided by the applicants’ experts.

An expert witness report on behalf of the applicants was submitted in December 2024 by Mr Mark Catley FRICS FAAV, a consultant at Cheffins, a firm of auctioneers, surveyors and estate agents based in Cambridge. Unfortunately, Mr Catley passed away in early 2025 and Mr Purkiss, a director at Cheffins stepped in to Mr Catley’s role as far as the hearing was concerned. Mr Purkiss reviewed Mr Catley’s report and provided a lengthy letter which he requested be considered in conjunction with the report. He said that the letter contained his thoughts on the case and additional evidence which he had used to form his opinion.

At the time of writing his report Mr Catley had over 43 years of experience as a chartered surveyor and was a former District Valuer for the East of England area. Mr Purkiss had also spent the early part of his career at the Valuation Office Agency and had qualified as a chartered surveyor in 2017.

Mr Catley’s report contained a description of the Land and its location, but he also recited the relevant legislation relating to restrictive covenants and some case law, primarily concerning decisions where compensation had been awarded. He valued the three houses in Brunswick Court at £975,000 to £1,000,000 each, having regard to nine comparables all of which were in Fulbourn.

Two of the comparable houses were listed as being on the market but without asking prices, the remainder were contained in a document headed ‘The Best Price Guide’ which was a list of transactions with properties shown as ‘sold, subject to contract’. This appeared to be based on information from the Rightmove website but with the very barest of details. The transactions took place between 14 February 2023 and 14 May 2024 and but for one property the floor areas were not shown. All were four or five bedroom detached houses, but unfortunately it was impossible to tell how Mr Catley had used the information to arrive at his opinion of value. Mr Purkiss confirmed that he had used the same information but with other additional transactions to confirm Mr Catley’s assessment of value as correct. He also said that he had used the floor areas for each property to arrive at a series of analyses to inform his judgement. None of this information was in his report and disappointingly he was no more forthcoming about it in response to questions from the Tribunal. Mr Purkiss stated that in his opinion all three houses in Brunswick Court had a value in the region of £1,000,000.

Mr Catley also examined whether compensation would be apposite were the Tribunal to modify the covenant. In his report he referred to two judgements from the Court of Appeal where in one case no compensation was awarded and a second where £2,250 was determined as appropriate. He also referred to a decision of the Tribunal relating to a house in Cambridge where a covenant was modified to allow the development of two houses on a site that originally contained just one. He did not identify the case. The compensation amounted to 3% of the value of the neighbouring house which had the benefit of the covenant. Mr Catley did not explain how these cases and the circumstances in each were relevant to the consideration of compensation in the case before the Tribunal. Mr Catley noted the positioning of the entrance to Farehurst Park and considered that the area in which the houses in Brunswick Court were situated would become busier as a result of the new development.

Mr Catley concluded that ‘in the normal scheme of things’ a further domestic property which would appear similar to the building it replaced would make very little difference to a prospective purchaser making a bid for one of the Brunswick Court properties. He considered that the access to Brunswick Court was very narrow and ‘the added issue of vehicles turning in and out of Brunswick Court would make things different’. He added that the impact on the bid of a hypothetical purchaser would be difficult to establish with any certainty. He described the Farehurst Park development as a significant factor and something which could not be discounted when deciding whether one more dwelling ‘in the mix’ would have a deleterious effect on value. In coming to his opinion on compensation he identified the disruption caused, presumably by the construction of the Bungalow, but he also referred to the ‘added difficulty of negotiating the narrow drive even now without the proposed bungalow’, an apparent reference to additional traffic generated by Farehurst Park. He considered the following diminution in value to be appropriate:

Mr Purkiss’s analysis of the impact of the construction and use of the Bungalow was more comprehensive than that of Mr Catley. He commented on three factors; privacy, disturbance from construction works and vehicular movements. He also considered the likelihood of additional development in Brunswick Court.

In relation to privacy Mr Purkiss assumed that Mr and Mrs Cucknall at 1 Brunswick Court would be able to view the garden and western elevation of the Bungalow from the first floor windows of their house. They are already affected by vehicular and pedestrian traffic along Brunswick Court. Mr and Mrs Simpson and Mr and Mrs Li-Yan-Hui at numbers 2 and 3 would be able to see the upper elevations and ridgeline of the Bungalow but it would, to some extent be screened by the existing planting and vegetation. The siting of the Bungalow to the east of the position of the Workshop would, said Mr Purkiss, be beneficial for numbers 2 and 3. He did not explain why that would be the case. He observed that the rear elevations and gardens of the three Brunswick Court houses were overlooked by the first floor windows of properties on Alec Ralph Close and Thomas Road which are located to the rear. At the time of my inspection foliage provided a degree of screening but in the winter months Mr Purkiss’s observation would be correct.

Mr Purkiss was of the opinion that the occupants of Brunswick Court would experience some disruption during the construction of the Bungalow, resulting from increased vehicular traffic, deliveries, the presence of trades people and general disturbance. He agreed with the timeframe for construction proffered by Mr Baker but thought that the whole construction period including demolition would extend to 9-12 months. He considered that the early parts of the project would be the noisiest. The planning permission for the Bungalow specified that a traffic management plan for the construction period would need to be in place before building operations started. No such plan was produced in evidence and Mr Purkiss said that such matters were outside his experience and expertise.

Mr Purkiss also considered that in comparison to the current level of vehicular movements, the occupation of the Bungalow was likely to lead to an increase, but he thought that the occupants would go no further along Brunswick Court to gain access to their parking area than Mr Baker did to park at the Workshop.

Finally, he examined the prospect of additional development in Brunswick Court. He concluded that the scale of the properties at 1-3 Brunswick Court and the size of the plots limited the scope for additional properties.

Having thoroughly reviewed Mr Catley’s report Mr Purkiss agreed that the legislation and case law referred to by Mr Catley was relevant. He also endorsed Mr Catley’s compensation figures but without explaining how the sums had been calculated, a telling omission bearing in mind that the figures fell within a range of 0.5 to 1.0% of the value of the affected buildings.

The applicants’ submissions followed the format adopted by the Tribunal in Re Bass Ltd’s Application (1973) 26 P&CR 156, whereby the Tribunal posed a series of questions to assist in its determination of the application.

The first of these questions is 'Is the proposed user reasonable?' Mr Taylor submitted that the proposal is for a residential use in a residential area and that as planning permission has been granted there is an evidential presumption that the proposed user is reasonable. The objectors did not address these questions but in my view it can be answered in the affirmative.

The second question is 'Do the covenants impede that user?' It is common ground that the development of the Bungalow cannot proceed without breaching the covenant.

The next question is 'Does impeding the proposed user secure practical benefits to the objectors?' I am going to bracket that question together with the fourth question which asks ‘'If the answer to question three is affirmative, are those benefits of substantial value or advantage?' Mr Taylor answered these questions under a series of headings which broadly related to the grounds of objection raised by the objectors:

Mr Taylor said that it was illusory that the covenant secured a practical benefit to the objectors in the sense that it prevented them being exposed to construction noise, disruption and inconvenience. Any loss of amenity would be short term and for that reason any practical benefit would be insubstantial. Nuisance was already covered by an additional covenant in the 1999 transfer. Mr Taylor observed that the covenant did not prevent all building works and noted that the Workshop had been extended in 2013 and that the current owners of 3 Teversham Road had expressed an interest in acquiring the Workshop and demolishing it to extend their garden. There was thus a realistic prospect of some form of development on the land and a degree of disturbance as a result.

The objectors acknowledge that were the covenant to be modified to allow the development they would have to ‘put up with’ the disruption arising from the construction work. They say that the construction traffic would need to come up Brunswick Court resulting in interruption to their access and ruining the amenity. They would suffer safety and security concerns as well as the loss of a quiet environment which was beneficial to those working from home. They are also concerned that the unknown timing and impact would affect their ability to sell their houses in the future.

It seems to me that the disruption that would result from construction activities is a legitimate concern for the objectors. It had been recognised by the planning authority that vehicular movements were likely to be problematic and in granting planning permission it stipulated that a detailed traffic management plan was to be in place before works could begin. It does not however deal with the noise and mess that will probably ensue. I accept Mr Baker’s evidence that the time frame for construction will be relatively short, probably less than 12 months including demolition and I agree with Mr Purkiss that the most intrusive work will be the early part of the project when the old building is removed, and the new structure put in place. Mr Taylor is correct in his assertion that the covenant does not specifically protect the objectors and that separate redress for nuisance is available to them. The covenant is not intended to provide protection from the temporary disturbance and inconvenience arising as a consequence of development. It would not have prevented the owners of 3 Teversham Road from demolishing their house and rebuilding it on the site of the workshop or in the position chosen for the Bungalow. Disruption from short term building operations is a regular occurrence in densely developed towns and villages and in this particular instance could arise if any of the objectors decided to extend their own houses. Accordingly, I take the view that although the restriction does confer a benefit on the objectors in that it prevents disruption, but in doing so it could not be characterised as being of substantial value or advantage.

Mr Taylor said that the construction of the Bungalow would be a clear improvement to the immediate area as it would replace a tired workshop. The covenant, in impeding the development of the Bungalow, disadvantages the objectors because the entrance to Brunswick Court is dominated by the existing building which is in a poor and deteriorating condition.

The objectors take an opposing view. They say that the addition of an extra house on the burdened land would change its character and there would consequently be an adverse effect on Brunswick Court. The objectors submit that Mr Baker, despite living at 3 Teversham Road for more than twenty years, only decided to try to modify the covenant once he had moved away. This was because Mr Baker recognised the considerable impact of his proposal but now he will not be affected by it. The objectors also say that the impact of additional traffic will be considerable, taking into account not only the prospect of delivery vehicles but the likelihood that a three bedroomed house might have four adult occupants each with their own car. The objectors refer to the planning applications for the Workshop made in 2005 and 2010 which they said were granted with the observation that it was ‘for the benefit of the dwelling house’ and ‘to protect the amenities of the adjoining residents’. The decisions were not submitted in evidence. They did submit a photograph of a car (a medium sized hatchback) parked in the roadway to demonstrate the narrowness of Brunswick Court and the difficulty of passing another car.

There is some force in Mr Taylor’s comments about the state of the Workshop but I disagree that the building is in poor condition. It is only twelve years old, but the Land is overgrown, and lack of use has led to an appearance of neglect. In my view, a new, slightly smaller building set 10 metres further east of the position of the Workshop will enhance the setting of the three houses in Brunswick Court by making it feel more spacious.

Given the small size of the Bungalow (105m² or 1,130 ft²) it is unlikely to appeal to a family with adult children. In my view the target market would probably be a downsizing couple or retirees and although the plan shows that it would be possible to park four cars on site in a ‘tandem’ arrangement it is unlikely that the occupants would have more than two cars. The occupants of the bungalow would have no reason to venture in their cars beyond the point where they access their parking area which is about 25 metres from the point in Brunswick Court where the roadway does a sharp right turn. The objectors have also said that the roadway is used as a space where their children play and they were doing so at the time of my inspection. Whilst I do not doubt the convenience of a relatively safe space for outdoor activities immediately adjacent to the houses in Brunswick Court, the primary purpose of the roadway is for vehicular access. I do not regard any minor restriction of this amenity as a serious objection and in any case if the children ventured no further than the entrance to the Bungalow, they would still have plenty of room to play.

Similarly, I doubt that the addition of a small number of extra cars using the roadway will make any material difference to the objectors’ ability to easily traverse Brunswick Court. There is no evidence to suggest that there will be any more traffic emanating from the Bungalow than might be the case if the Workshop was used with moderate intensity. It follows that the quietness of Brunswick Court is unlikely to be affected by the proposed development and protection for the owners of 1-3 Brunswick Court is provided by existing covenants not to cause a nuisance or annoyance and not to park in or obstruct the Estate Road. In preventing the proposed development the restriction therefore does not secure benefits relating to the character of Brunswick Court itself which are of substantial value or advantage.

Mr Taylor submitted that the owners of 2 and 3 Brunswick Court would suffer no impact on their privacy and views. He relied on the evidence of Mr Purkiss. Mr Taylor acknowledged that the position of Mr and Mrs Cucknall’s house at 1 Brunswick Court was slightly different. The impact would be slight given the siting of the garage and proposed boundary treatment. The possibility of loss of privacy would be limited to views from ground level within the garden of the new dwelling, looking (through vegetation) upwards towards the ceilings of the upstairs front rooms at 1 Brunswick Court. Accordingly, any loss (which Mr Taylor did not accept) would be upon the privacy of a person who is standing immediately in front of those windows.

The objectors, and in particular Mr and Mrs Cucknall at 1 Brunswick Court, say that the proposed development will interfere with their privacy and views as they would adjoin a neighbouring garden, windows and doors rather than the back of a wooden garage. The upstairs windows at the front of 1 and 2 Brunswick Court would be visible from the kitchen and master bedroom windows of the Bungalow. The roadway in which the objectors’ children play would also be overlooked by the kitchen and lounge windows.

I think it unlikely that that the occupants of 2 and 3 Brunswick Court will experience any loss of privacy or views. The positioning of these houses around the corner from the Bungalow will ensure that any views from the bungalow will be obliquely from the kitchen window or obscured by the garden fence of 5 Teversham Road.

I agree with Mr Taylor that the occupants of the Bungalow, were they to stand at their kitchen or master bedroom window, would be able to see someone standing at the first floor windows of 1 Brunswick Court. There may well be some screening provided by vegetation in due course but that will take time to mature. The separation between the buildings would be about 18 metres (60 feet) and the lack of privacy is likely to be more acutely felt by the occupants of the bungalow who will be overlooked. From my inspection the room in 1 Brunswick Court which will be most affected is currently used as a guest bedroom (although that use might change). Although there will be a slight loss of privacy, I do not regard the prevention of its loss in the circumstances of this case as a practical benefit of substantial value. The other first floor windows in 1 Brunswick Court, in order of their proximity to the Bungalow, relate to an en-suite bathroom, a stairwell and a further bedroom, none of which will be affected to any significant degree. In my view none of the ground floor windows at 1 Brunswick Court will suffer any material loss of privacy. I note that the first floor windows at the rear of 3 Teversham Road look directly into the first floor of 1 Brunswick Court from a distance of about 50 metres and at the rear there is a separation of about 25 metres to the houses in Alec Rolph Close.

The objectors say that the sharing of maintenance costs of the Estate Road will become unfair if the Bungalow is developed as the costs are currently split four ways. Even if the share allocated to 3 Teversham Road were to be divided between the Bungalow and the 3 Teversham Road the arrangement would remain unfair as each would bear 12.5% and the occupants of 1-3 Brunswick Court would be left with 25% each. They also say that construction activity will damage the road.

The applicants do not share this view. They say that the fairness of the division of the maintenance costs is not a practical benefit secured by the covenant. Any of the existing owners could increase the burden on the Estate Road by increasing the frequency of use or changing the type of vehicle they use. They also say that the existing arrangement is unfair as the owners of 1-3 Brunswick Court make use of the whole of the road while the owners of 3 Teversham Court and the Land do not.

Finally, the applicants submit that even if the preservation of fairness were to be considered a practical benefit it is not of substantial value. Mr Baker said in his witness statement that the road had needed no maintenance other than the cutting back of vegetation in the last 20 years. The road surface appears to be in a sound condition and not in need of attention but even if that were not the case and significant repairs were required the owners of 1-3 Brunswick Court would not be greatly disadvantaged by having to pay 25% of the cost rather than 5% less.

In my view the preservation of fairness in the distribution of liability for the maintenance costs is a practical benefit. However, given the infrequency of costs arising and the lack of opportunity for any other development in Brunswick Court, it seems to me that the necessity to pay 25% rather than 20% should not be regarded as being of substantial value.

The objectors are also concerned that the development of the Bungalow could alter the context within which any future applications for modification or discharge of the covenant. In other words, it would create an unfavourable precedent. The objectors envisage developments at 5 Teversham Road and at each of their respective houses, leading to up to 8 or 9 houses accessed from Brunswick Court.

The applicants submit that there is simply no space in Brunswick Court for further development should the Bungalow be built. They also regard the objectors’ view that their own houses could be subdivided or more intensively developed as fanciful, given their age and character.

The precedent effect of modifying or discharging a covenant (or colloquially ‘the thin end of the wedge’) is an argument that the Tribunal often encounters in applications of this nature. In Martin v. Lipton [2020] UKUT 0008 (LC) the Tribunal (Martin Rodger QC, Deputy Chamber President, and Mr Paul Francis FRICS) said:

“Applications of this type are fact sensitive, and it cannot be assumed that the outcome of one case will be mirrored in the outcome of a different application, even one seeking a very similar modification on the same Estate.”

It is therefore no more likely that a subsequent application would meet with success. The development of the garden of 5 Teversham Road would be problematic since the site does not have the right to use Brunswick Court for access, nor is it bound by the restriction. Modification of the restriction to permit the Bungalow to be built would therefore have no relevant precedent effect as far as 5 Teversham Road is concerned.

The applicant rightly says that the age of the covenant is not relevant to the Tribunal’s jurisdiction to modify the covenant but might be pertinent to the exercise of the Tribunal’s discretion. The objectors submit that the covenant is recent and there has been no material change in the layout of the estate envisaged by the covenant. I will return to this aspect of the application later in the decision.

The fifth, question arising from Re Bass Ltd’s applicationis not relevant to this application. The sixth question is concerned with compensation and asks ‘If the answer to question four is negative, would money be an adequate compensation?’ In other words, if the practical benefits are not of substantial value or advantage, can their loss be compensated for in money?

The final question is concerned with compensation if the answer to question five is affirmative.

It can be discerned from my comments in relation to each of the practical benefits conferred by the covenant that I do not regard any of them as being of substantial value or advantage, nor are they in aggregate when the cumulative effect of all the benefits is taken into consideration. I am therefore of the view that I have jurisdiction under ground (aa) to modify the covenant. That being the case I have no need to consider whether the application also succeeds under ground (c).

Although the jurisdiction is established, I must also decide whether I should exercise my discretion to modify the covenant. At this point the objectors’ argument concerning the age of the covenant is germane. The covenant was imposed in 1999 and is not therefore particularly recent. Mr Baker is one of the original parties. In Anthony v Hardy[2025] UKUT 209 (LC) the Tribunal was faced with similar circumstances in so far as the covenant had benefited Mr and Mrs Hardy for twenty one years at the time the case was heard and they were, of course, an original party. At paragraph 56 of its decision the Tribunal noted:

“In Cresswell v Proctor [1968] 1 W.L.R. 906 CA the Court of Appeal (Harman and Danckwerts LLJ) took the view that the Tribunal’s discretionary powers ought not to be exercised in the case of a very recent covenant where the application was made by the original covenantor. In Hodgson v Cook [2023] UKUT 41 (LC) at [62] the Tribunal said that:

“Even if I had come to the opposite conclusion on whether the ground (aa) conditions were satisfied, I would have been very reluctant to lift a restriction which the applicants themselves freely accepted less than ten years ago. The more recently a restriction has been imposed the stronger the case for modification must be.””

The Tribunal took the view that notwithstanding the facts of that case the covenant should still be modified. In my judgement a covenant that has been in place for twenty five years is not one that can be described as ‘very recent’ and the circumstances at Brunswick Court are not comparable to those in Hodgson v Cook. Taking the age of the covenant into account, I do not place any weight on the fact that Mr Baker was the original covenantor. I therefore exercise my discretion to modify the covenant.

I now turn to the question of compensation. I have power under section 84(1), if I think it just to do so to award as compensation either a sum to make up for any loss or disadvantage suffered by the objectors in consequence of the discharge or modification; or 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. In a case where the restriction was imposed on retained land of the vendor the first of these alternatives is the more likely to be engaged.

The applicant’s primary position is that modification of the covenant will not injure the objectors, and the covenant does not secure any practical benefits of substantial value or advantage to them. It follows, the applicants say, that the question of compensation does not arise. The objectors had previously turned down compensation offered by the applicant (in the sums arrived at by Mr Catley) because they felt strongly that the covenant should remain in place in its existing form and that compensation could not make up for the loss of amenity, safety and security that would be a consequence of modification.

The applicants acknowledge that Mr Catley appeared to have formed the view that the objector’s properties would suffer a modest reduction in value if the covenant were modified. However, they say that on closer examination of his conclusion it seemed that Mr Catley had said that compensation should be awarded for disturbance from the construction works and for the added difficulty of negotiating the narrow drive notwithstanding that the narrow drive already existed and would not be altered.

Mr Taylor therefore submitted that the proper approach to compensation was to award a sum for loss of amenity rather than any diminution in value. He further noted that the sums arrived at by the experts represented percentages which were equal to or less than the parameters identified by Mr Catley as representing the range of possible values for the properties with the benefit of the covenant in its unmodified form. He further submitted that if the Tribunal were minded to award compensation it should be below the level suggested by Mr Catley or in the alternative, Mr Catley’s figures.

Mr Taylor identified two cases which provided guidance as to the level of compensation in a modification case under s.84(1) where some injury, loss or damage is caused by reason of the modification of the covenant which did not amount to a diminution in value of the benefitted land. The first was Re Perkins Application [2012] UKUT 300 (LC), where an award of £2,000 and two further sums of £1,000 each were made to objectors who were impacted to much the same degree as the objectors in the present case.The second case is Re Laav [2015] UKUT 448 (LC), where an award of £2,500 was made to objectors in respect of the visual impact upon their garden caused by a proposal to erect a garage within a metre of the boundary.

The only evidence before me is that provided by Mr Catley and Mr Purkiss, the rationale for which is rather nebulous. In common with the experts, I am of the view that Mr and Mrs Cucknall at 1 Brunswick Court will be most affected by the modification of the covenant. They will suffer a loss of privacy to a small degree and will be closest to the building works while they are going on. Mr and Mrs Simpson and Mr and Mrs Li Yan Hui will also suffer some temporary construction disturbance. All three couples will be affected by access issues during the building period.

Although the experts did not adequately articulate the reasons for their figures, I find the figures to be mostly correct. I start from the position that in my judgement £10,000 is appropriate compensation for Mr and Mrs Cucknall. The figure is composed of £4,500 for disturbance, £3,000 for the impact on privacy and £2,500 for access issues.

I award £5,000 to Mr and Mrs Simpsom which comprises £2,500 for disturbance and £2,500 for access issues. The compensation to Mr and Mrs Li Yan Hui is £3,500 representing £2,500 for access issues and £1,000 for disturbance.

The following order shall be made:

An order modifying the restriction shall be made by the Tribunal provided, within three months of the date of this decision, the applicant shall have: