Kirsty Crossland & Anor v Keith Anthony Fritchley [2026] UKUT 22 (LC)

[2026] UKUT 22 (LC)

Case No LC-2025-84

IN THE UPPER TRIBUNAL (LANDS CHAMBER)

AN APPLICATION UNDER SECTION 84 OF THE LAW OF PROPERTY ACT 1925

Sheffield Magistrates’ Court, Castle Street, Sheffield, S3 8LU

22 January 2026

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANTS – discharge or modification – covenant preventing alterations or additions – whether covenant secures practical benefits of substantial value or advantage to neighbouring owner - s.84(1) (aa) and (c), Law of Property Act 1925 – application allowed

KIRSTY AND DALE CROSSLAND

Applicants

KEITH ANTHONY FRITCHLEY

Objector

66 Kingswell Road.

Worsborough,

Barnsley,

South Yorkshire, S70 4HG

Mr Mark Higgin FRICS FIRRV

3 December 2025

Mr Carl Fender, instructed by MKB Solicitors LLP for applicants

The objector represented himself

The following cases were referred to in this decision:

Creebray Limited v Ian Harry Deninson and Anor[2020] UKUT 0262 (LC)

Martin v Lipton[2020] UKUT 8 (LC)

Re Bass Ltd’s Application (1973) 26 P&CR 156

Re Hawkins[2015] UKUT 0564 (LC)

Re Martins’ Application (1989) 57 P & CR 119

Re Sutcliff (2005) LP/20/2005

Introduction

[1]Mr and Mrs Crossland are the owners of Wellfield House (‘the House’), a detached dwelling on the southern outskirts of Barnsley. They have planning permission to extend the house but cannot implement the permission because the building works (‘the Works’) that they aspire to complete are prevented by a restrictive covenant that burdens the land that the house occupies.

[2]Mr and Mrs Crossland’s application seeks discharge of the covenant to allow the Works to be completed. Mr Fritchley owns and lives in Wellfield Lodge (‘the Lodge’), a neighbouring house which has the benefit of the covenant. He objects to the application.

[3]I inspected the House and its garden on the afternoon of the day before the hearing. I was accompanied by Mr Crossland, Mr Fender, his pupil and Mr Fritchley. I viewed the Lodge from each of the windows in the House that faced the Lodge and then did the same in the Lodge looking towards the House. I inspected the gardens and outside spaces of both the House and the Lodge.

[4]At the hearing, Mr and Mrs Crossland were represented by Mr Carl Fender who called Mr Donavon White MRICS as an expert witness. Mr Fritchley represented himself and called Mr Mark Sykes Dip Val MRICS MCABE C.Build E as an expert witness. I am grateful to them all.

The factual background

[5]The House is an imposing building with brick elevations and a pitched slate roof. It was evident from my inspection that it had been the subject of numerous extensions, some more sympathetic to the original structure than others. It is largely arranged over two storeys but there are two attic rooms as well. The site also contains Wellfield Cottage (‘The Cottage’) immediately adjacent to the road and occupied by a family member.

[6]The House is on the southern side of Kingwell Road in Worsborough, an area of Barnsley about 1.25 miles south of the town centre. The site is trapezoidal in shape having a road frontage of about 18 metres, an average depth of 60 metres and a southern boundary some 33 metres in length. The site slopes markedly to the south and the House sits in the top third with its principal rooms facing south towards the Lodge.

[7]The Lodge occupies an irregularly shaped site which previously formed the southernmost part of the garden of the House. Access is by means of a driveway next to the eastern boundary of the House. Despite its bucolic name, the Lodge is a modern five bedroom dwelling. It has the appearance of a bungalow but there are two bedrooms in the pitched roof with windows in the gable walls and Velux windows above the landing area. The Lodge has a double garage and a large brick built workshop was added in 2018. The garden area is largely laid to lawn and there is a sizeable patio at the western end.

[8]The neighbouring properties in Kingwell Road are all residential and are a mixture of bungalows and houses of varying ages and designs. Most are detached. Immediately to the south west of the Lodge is the Ward Green Primary School and Little Acorns Nursery, together with a large, asphalted playground and grass playing field. North of Kingwell Road is an open grassed area described by Mr Fritchley as a ‘pinfold’, a term associated with an enclosure for animals. A plan showing the spatial relationship between the House and the Lodge follows paragraph 11.

[9]To understand how the House came to be burdened by the covenant it is necessary to examine the timeline of events that culminated in Mr and Mrs Crossland’s purchase. The following information is taken from a witness statement provided by Mrs Catherine Needham who, together with her husband David, sold the House to Mr and Mrs Crossland.

[10]Prior to 1997 Mrs Needham’s parents, Mr and Mrs Murray, owned the House and the garden contained the land that subsequently became the site of the Lodge. In 1997 Mr and Mrs Needham moved into the House and Mr and Mrs Murray took up residence in Wellfield Cottage. Mr and Mrs Murray retained ownership of both. During 1997 Mr and Mrs Murray decided to build the Lodge and it was completed in the summer of 1998. At that point Mr and Mrs Murray moved to the Lodge and Mr and Mrs Needham purchased the House. On legal advice the Title to the house was divided between the House (including Wellfield Cottage) and the Lodge. The transfer of the House included a covenant to prevent the future development of the House or its garden without the permission of Mr and Mrs Murray. Mrs Needham said that the covenant was not intended to prevent maintenance of the House or future building works, it simply meant that her parents’ consent was a prerequisite. It was agreed verbally that consent would not be unreasonably withheld. During their ownership Mr and Mrs Needham carried out repairs and renovations including the replacement of some of the windows and the infilling of a glass corridor at the rear of the building.

[11]Due to the failing health of Mr Murray the Lodge was sold in 2017 to Mr Fritchley and Mr and Mrs Needham sold the House to Mrs Crossland and her former partner in 2018.

The planning permission

[12]In February 2024 Mr and Mrs Crossland applied to Barnsley Metropolitan Borough Council for planning permission to demolish side and rear elements and of the House, demolition of an outbuilding, erection of a two storey side extension, internal alterations and to apply an off-white/grey render finish to the elevations.

[13]It is worth recording, at this point in the decision, how the planning officer described the House:

“The host dwelling is a detached property finished in red brick with Tudor style detailing. The property has been extended and altered in various ways, and has an unusual appearance with no obvious principal elevation. The dwelling has multiple roof ridges and slopes, with the highest ridge being 10.4 metres from ground level. The property is arranged over various levels and includes a bedroom in the roof space/second floor of the main dwelling. The dwelling’s traditional character has been eroded by the poorly designed alterations and its appearance does not positively contribute to the street scene.”

“The host dwelling is a detached property finished in red brick with Tudor style detailing. The property has been extended and altered in various ways, and has an unusual appearance with no obvious p

[14]This is how the proposed development was described:

“The applicant seeks permission for the erection of a two storey side extension; first floor extensions with roof extension, following part demolition of existing extensions. The proposal looks to simplify the footprint of the dwelling and infill the existing projections to improve the overall appearance of the property and its useable floor space. The height of the building will not exceed the existing tallest point, with the main dwelling remaining at 10.4 metres in height, albeit this roof will be extended to form a gable roof above the first floor infill extensions and create accommodation within the roof space. Roof lights will be added to the front elevation slope with a single dormer and roof lights on the rear. A first floor extension will be erected above the existing shower/boot room and infill the current flat roof. To the western side a new two storey extension will be erected, but this will be set down with a ridge height of 8.5 metres. The sideways projection of the two storey extension has been reduced to ensure that it remains subservient to the host dwelling and accords with the SPD guidance. A front facing gable feature at the eaves will also break up the massing. At ground floor level the extension includes a single integral garage. To the rear bifold doors will face onto the garden and the Juliet balcony will be added at the first floor. The existing single story/sloping roof front extension (which currently houses the utility) will be demolished, with the two storey extension kitchen/lobby area to remain. This will create a front facing gable elevation. New windows will be added at the upper front level to replace the existing stained glass windows.

The entire property will be finished in render, with the replacement windows installed throughout.”

[15]The application was approved with conditions on 5 April 2024. The following images show the proposed development with the principal extension on the left hand side of the southern elevation. The width of the House in its existing format is 9.6 metres and the extension, if completed, would be 6.4 metres wide. At the hearing Mrs Crossland said that her intention was to build the western extension first and that the other changes would follow later. She said that some of aspects of the scheme might never be built but had been included in the planning application to save the need for multiple applications as work progressed.

The legal background

[16]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. (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.

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.

[17]Significantly, 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 covenant

[18]The covenant is contained in registered title number SYK403765 dated 9 October 1998. It says this:

“The Transferee jointly and severally covenant with the Transferor for the benefit of the Retained Property or any part or parts of it with the intent (so far as the law allows) to bind the Property into whomsoever the same may come but not so far as to render the Transferee personally liable for any breach or omission which may occur after they shall have parted with their interest therein that they will:- (a) not without the previous written consent of the Transferor or his successors in Title erect or set up or suffer to be erected or set up on any part of the Property any additional building or structure or make any alterations in the height front sides roof walls timbers elevations or positions of any buildings standing upon the property nor erect thereon any building or erection except of such type and character as shall have previously been approved in writing by the Transferor. (b) not at any time to use the Property or any buildings for the time being on the said land for any purpose other than as private dwellinghouse or as outbuildings of or to private dwellinghouses nor use so much of the Property as shall not form the site of a building for any purpose other than as a yard garden or pleasure ground appurtenant to the said dwellinghouse nor make carry on or do or suffer on the Property any offensive noisy or dangerous occupation or act matter or thing which shall or may become or grow to be a public or private nuisance or a damage annoyance grievance or inconvenience to the Transferor and his successors in Title or any occupier of adjoining properties.”

The application and the parties’ respective positions

[19]Mr and Mrs Crossland originally applied to discharge the covenant entirely thereby facilitating the implementation of the planning permission. The application was made under grounds (a), (aa) and (c). A few days prior to the hearing they decided that modification of the covenant would potentially provide a less contentious means to the same end. It was therefore proposed by Mr Fender in his skeleton argument that the application be altered to include what he described as the “familiar ‘carve out’ for applicants who wish to develop their house in accordance with planning permission but where a restrictive covenant remains in place”.

[20]Mr Fritchley objected to that course of action, submitting that he had not had time to formulate a response and that his case was predicated on discharge. However, any argument against discharge would equally apply to modification and the evidence of his expert witness covered both scenarios. This decision therefore proceeds on the basis of modification rather than discharge.

[21]Mr Fritchley’s position is that the covenant is not obsolete, there having been no changes to the Property, neighbourhood or other relevant circumstances. He considers that discharge of the covenant would cause him significant injury and the covenant secures him practical benefits of substantial value or advantage.

[22]Mr and Mrs Crossland also sought permission for modification of the covenant to include words to the effect that any future request for consent is not unreasonably refused. Mr Fender submitted that a court would readily imply into the covenant an expectation that an objector should not unreasonably refuse consent. The covenant does not impede development of the site absolutely but contains a consent condition that qualifies the prohibition and therefore foresees it as a possibility. Mr Fritchley was initially opposed to this specific modification but later consented to it.

[23]Mr Fender did not pursue the application under ground (a) and similarly chose not to make any submissions under ground (c). The application thus turns on ground (aa) and I therefore turn to consideration of whether I have jurisdiction to modify the covenant. The first part of that process is an examination of the expert evidence.

Expert evidence

[24]Mr White gave evidence on behalf of Mr and Mrs Crossland. He is a Director of Horner Associates Limited and is a chartered surveyor of more than 50 years experience. He is based in Barnsley.

[25]Having inspected the House in July 2025, Mr White noted that more than 40 metres separated it from the Lodge. He commented that the minimum separation distance between opposing properties stipulated by the local plan is 21 metres. He considered that the House already overlooked the Lodge and while there would be additional windows he took the view that given the distance separating the two buildings there would be no undue increase in overlooking or loss of privacy.

[26]Mr White said that the rooms in the Lodge facing the House were the kitchen, a bathroom and bedroom. The main reception rooms were orientated to the south, away from the House. He went on to say that views from the Lodge towards the House are limited by mature trees and there is little or no view of the pinfold. The proposed extension would have little additional impact on this view. However, Mr White also acknowledged that he had not been inside the Lodge, and it is therefore difficult to comprehend how he could be certain of the veracity of his opinions.

[27]Mr White also commented that the House required some repairs and that the new render finish would provide a modern, updated appearance in keeping with the Lodge and other nearby properties. Taking all of these aspects into account he came to the conclusion that the extension at the House would have no effect on the value of the Lodge.

[28]At the hearing he said that four factors had informed his judgement, the separation, privacy, visual amenity and light. His report did not mention light or any effect on the amount of light reaching the Lodge as a result of the extension. He did not elaborate on the weighting applied to each factor in arriving at his conclusion.

[29]Mr Sykes is also a chartered surveyor. He is a partner in Sykes Robinson, a firm of surveyors based in Barnsley. Mr Sykes thought that the House dominated the skyline when viewed from the Lodge but owing to its size and design it ‘sits well’ with the surrounding bungalows and does not overshadow its neighbours. He acknowledged that the privacy of the Lodge was compromised by the elevated position of the House, but the impact was limited by the existing window design.

[30]He judged there to be plenty of natural light at the Lodge as a result of the gaps to the side of the eastern and western elevations of the House. Having reviewed the planning permission he formed the view that the House in its extended form would be overbearing, dominate the skyline and no longer be in keeping with the surrounding properties. The extension and other works would have a detrimental effect on the Lodge resulting from loss of light, views and privacy. Mr Sykes pinned these effects on the increase in height of the habitable space, which I have taken to mean the external dimensions, and the increase in windows from four to thirteen. Were the covenant to be discharged Mr Sykes considered that there would be an increased prospect of other structures being built in the garden of the House and these might have an even greater impact on the Lodge.

[31]Mr Sykes report also addressed the question of compensation to be awarded should the covenant be discharged or modified. The first step in this process was to establish the current market value of the Lodge. His report listed six comparables, all bungalows in the Barnsley area. These varied in age, size and quality and some were shown as being ‘sold subject to contract’. At the hearing Mr Sykes confirmed that those outstanding sales had completed. Although he had provided the sizes of the properties, he had not undertaken any analysis. It was possible to calculate the analysis from the information provided and these ranged from £1,535 to £3,278 per m2. In response to a question from the Tribunal he said that the most relevant comparable was 66 Mount Vernon Road, Barnsley. This was a four bedroom detached bungalow dating from the 1950s. It was located 500 metres from the Lodge and was slightly larger at 254 m2. It also required modernisation, had no garage or workshop and occupied a smaller plot. The sale completed on 1 February 2025 at £390,000 and it devalues to £1,535 per m2, the lowest of Mr Sykes comparables. Mr Sykes adjusted his comparables to reflect their attributes relative to the Lodge and arrived at a range of £546,000 to £625,000 but he offered no explanation of how this process had been undertaken. He also adjusted for the time elapsed since each transaction but again he did not identify how the adjustments had been calculated.

[32]It would have been of assistance if Mr Sykes had provided a comprehensive narrative of not only how he had made the adjustments but also how the outputs had informed his opinion of value of the Lodge. Surprisingly, both aspects were missing. He did note that the Lodge was purchased in February 2017 and that the application of the Nationwide House Price Index for the period up to the date of valuation (18 August 2025) would result in a figure of £500,216. This value excludes the workshop.

[33]Mr Sykes’s valuation of the Lodge was £585,000, a figure including the workshop. At the hearing he said that the workshop was worth £40,000. Although Mr Sykes had not provided the floor area of the Lodge, Mr Fritchley had included the estate agent’s sale particulars amongst his evidence and from that document it was possible to discern that the total area was 193.33.m2. His valuation excluding the workshop can therefore be analysed to produce a figure of £2,819 per m2.

[34]Mr Sykes then calculated the diminution in value due to the discharge and modification of the covenant. The figures he arrived at were 12 and 10% respectively.

[35]At the hearing he explained that the 12% adjustment was made up as follows:(i) Uncertainty over what might be built in the future – 8%

(ii) Loss of privacy, light and visual amenity – 4% split evenly between the factors

[36]At no point in his previous written or oral evidence had Mr Sykes referred to loss of certainty.

[37]He also agreed with a proposition from the Tribunal that the workshop value should be deducted before making his adjustments for discharge or modification of the covenant. This meant that instead of diminutions in value of £70,200 and £58,500 the correct adjustments based on his valuation of the Lodge were £65,400 and £54,500.

Does the Tribunal have jurisdiction to modify the covenant?

[38]The applicants’ submissions followed the sequence adopted by the Tribunal in Re Bass Ltd’s Application

(1973) 26 P&CR 156

, in which 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?'

[39]Mr Fender submitted that the Works proposed by the applicant were reasonable simply by virtue of having planning permission. Mr Fritchley did not disagree.

[40]The second question is ‘Do the covenants impede that user?’ Self-evidently they do.

[41]The next question is 'Does impeding the proposed user secure practical benefits to the objectors?' For the purposes of this decision that question can be answered with the fourth question which asks ‘'If the answer to question three is affirmative, are those benefits of substantial value or advantage?' Mr Fritchley addressed these questions by identifying a series of practical benefits which can be grouped together under three headings; firstly, increased overlooking and a loss of privacy, secondly, a loss of amenity and finally, potential nuisance from additional occupancy. I will deal with these in turn. Overlooking and privacy

[42]Mr Fritchley submitted were the House to be extended in accordance with the planning permission the number of windows facing the Lodge would increase from four to thirteen. The kitchen and two bedrooms at the Lodge would suffer from a greater degree of overlooking. He acknowledged that there were some evergreen trees at the southern end of the garden of the House and these provided a degree of screening although this was not constant, as the trees have grown and some of the branches have dropped. He referred to the decision of the Tribunal (Judge Elizabeth Cooke and A J Trott FRICS) in Creebray Limited v Ian Harry Deninson and Anor

[2020] UKUT 0262 (LC)

, where at paragraph 64 the Tribunal commented: “But only the hedge in its current state secures that mitigation. We do not accept that it will offer adequate screening in winter. And the mitigation measures imposed as planning conditions, in particular the obscured glass on the first floor of the new house which would prevent direct overlooking, would not go far enough to make up for the lack of protection afforded by the hedge in winter or in the future if the hedge deteriorates or is removed. The only real protection the objectors have from the visual intrusion of a bulky three-storey building visible from their garden is the hedge, in its current state. And that state is too precarious to be relied upon because of the age of the hedge, the necessity for trimming to open up the drive, and the uncertain future of any organic barrier.

“But only the hedge in its current state secures that mitigation. We do not accept that it will offer adequate screening in winter. And the mitigation measures imposed as planning conditions, in parti

[43]Mr Fender said that the House and the Lodge were separated by a distance of some 40 metres and the screen of trees in the garden of the House, even when defoliated in the winter months, still offers ‘a barrier to observation’. He considered that the western extension would offer no better a vantage point to any other window in the house and even the highest windows in the extension would be lower than the highest existing window in the House. He also noted that most of the main living space and bedrooms faced south, away from the House.

[44]When I visited the two properties I noted the significant difference in height between their respective positions. Nothing was supplied in evidence to put a figure on the differential but I would estimate that the ridge line of the roof on the Lodge corresponds to floor level at the first floor of the House. This means that there is currently a noticeable degree of overlooking. On the day of my inspection when standing in the south facing rooms of the House it was just possible to see into the kitchen of the Lodge, but only because it was a sunny day and that room is lit from the south as well as the north. The view from the western extension would be different. Firstly the angle would be more oblique and additionally the existing trees would screen the Lodge to a greater degree. The two bedrooms in the Lodge that face towards the House are quite effectively screened by the trees, even in winter time.

[45]I also note that the Lodge is overlooked by other properties in Kingwell Road, particularly, No. 64 which is adjacent to the driveway to the Lodge. Naturally the circumstances in this case are different to those in Creebray where the existing and proposed houses were separated by a distance of 22.5m and a tall beech hedge.

[46]Although Mrs Crossland said that she was focussed on building the western extension, the scheme which is the subject of the application includes an additional dormer window in the existing southern elevation and ‘Velux’ style windows in the roof. At the hearing Mrs Crossland confirmed that the roof windows would be above head height and were simply intended to provide more light. The number of windows from which it would be possible to actually look out from would be nine, rather than the thirteen mentioned by Mr Fritchley.

[47]Taking all of these aspects into account, I have come to the conclusion that whilst the inclusion of more south facing windows in the house might increase the sense of overlooking, the distance separating the properties, the positioning of the extension and the existing screening will offer meaningful mitigation of the effect. I do not deny that the covenant offers some practical benefit in this regard but in my view it is not substantial in either value or advantage. I note that Mr Sykes was of the opinion that the loss of privacy would cause a diminution of value of 1.33% and Mr White thought that there would be no effect at all on the value of the Lodge. Loss of amenity

[48]Mr Fritchley submitted that the kitchen at the Lodge was at the front of the property overlooking the garden and rear of the House. He said that the kitchen, as in many houses was the ‘centre of modern living’. He acknowledged that the view from this room was somewhat limited due to the elevated position of the House, but it still provided a pleasant outlook to either side with views of the ‘pinfold’ and distant houses beyond. He and his wife regarded this view as important, and they would be unhappy to lose it.

[49]Mr Fritchley also took issue with the aesthetics of the House in its extended form. He thought that the new elements would be finished in grey render and this choice of material, together with the size and dominance of the completed building would be visually disturbing. He also said that the Council’s assessment of the impact for planning considerations was not a valid test of amenity in the context of an application to modify or discharge a restrictive covenant. In support of his views, he referred to the Tribunal’s decision in Re Hawkins

[2015] UKUT 0564 (LC)

where at paragraph 80, Mr A J Trott FRICS noted:

“80. The planning authority have accepted that the proposed development does not adversely affect the amenity of Highlands, but that is not decisive in this context. Mr Black’s evidence was predicated on a town planning perspective as he readily acknowledged. When he was asked about the change in the outlook from Highlands if the application succeeded and whether looking at a larger roof might be a matter of significance to the objectors, he answered “to them, yes.”

Later he was asked whether the view from Highlands would change adversely if the proposed development were to proceed and he replied “not from a planning viewpoint. Possibly from the owner’s viewpoint.” That is the key point; this is not a planning application but an application to discharge or modify restrictions which afford proprietary protection to the objectors’ amenity and that of their successors. What matters is the effect on the persons with the benefit of the restrictions and a test of amenity is not one determined by planning policy.”

[50]Mr Fritchley also referred to paragraph 70 of the Tribunal’s decision in Re Sutcliff (2005) LP/20/2005where the Member, Mr A J Trott FRICS concluded that:

“70. I do not accept the applicants’ first submission. As Fox LJ said in the case of Re Martins’ Application (1989) 57 P & CR 119 at 124: “Thus, it seems to me that, while the two regimes [planning control and the jurisdiction under section 84 of the Act] impinged upon each other to some extent, they constitute different systems of control and each has, and retains, an independent existence.”

There is an express statutory jurisdiction conferred by section 84 that cannot be substituted by the decisions of the local planning authority.” “Thus, it seems to me that, while the two regimes [planning control and the jurisdiction under section 84 of the Act] impinged upon each other to some extent, they constitute different systems of control and each has, and retains, an independent existence.” There is an express statutory jurisdiction conferred by section 84 that cannot be substituted by the decisions of the local planning authority.”

[51]Mr Fender thought that there was little or no view of the pinfold from within the Lodge and stated that to appreciate the view it would be necessary to stand in the driveway of the Lodge. He did not comment on the attractiveness or otherwise of the proposed external finishes. Mrs Crossland said in her witness statement that it was a stipulation of the planning permission that they finish the exterior in an off white/grey render.

[52]Both experts mentioned the amount of available light as a material factor in their respective deliberations but neither party had undertaken any proper quantification of the effect of the proposed works.

[53]Mr White was correct in his assessment that the internal layout of the Lodge is arranged to maximise the benefit of the views to the south. Most of the garden is on that side of the property and it has a pleasing aspect as the ground continues to fall away and there are distant views of open countryside. The Lodge is not a property where the kitchen/living space spans the entire rear elevation as is the case in many modern homes. It is arranged between the north and south elevations and is relatively narrow. The front part looking towards the house contains kitchen cabinets and appliances whilst the rear part which is used for dining has a pair of patio doors overlooking the garden. If one were to sit in this part of the Lodge, it would be to view the vista to the south. The pinfold is visible on either side of the House from the kitchen window of the Lodge. At its nearest point it is about 80 metres from the Lodge. To the west of the House, it is visible though a gap of about 8 metres but is partially obscured by the western end of the Cottage and a fence about 1.8 metres in height. The pinfold manifests itself as a narrow band of grass above the fence. The view to the eastern side of the House is more comprehensive.

[54]The proposed extension will obscure the western view of the pinfold entirely. Whether this represents a loss of amenity is a subjective judgement. It does not appear to me to be one of the primary views from the Lodge and while its retention might be a practical benefit, it is at best a minor one of marginal value or advantage. It was a component in Mr Skyes’s 1.33% diminution in value for visual amenity and I agree with his assessment of its value.

[55]I do not agree with Mr Fritchley’s characterisation of the House in its extended form as ‘visually disturbing’. His comments specifically referred to the off white/grey render finish mandated by the planning authority. There is no discernible pattern to the finishes adopted by neighbouring properties, but smooth render finishes are evident at several houses on Kingwell Road. The presence of another will not be out of keeping.

[56]Mr Fritchley is correct to note that the planning authority’s assessment of amenity is made from a different perspective to that of the Tribunal. As Fox LJ said in Re Martins’ Application the two can sometimes overlap. In this case I agree with the planning officer’s assessment that the proposal will regularise the appearance of the House and will contribute positively to the character of the street.

[57]I have already mentioned that no evidence was submitted in connection with loss of light. Given the separation between the properties and their relative orientations it my judgement that there is unlikely to be any loss of light to the northern elevation of the Lodge. Mr Sykes did not quantify the loss but arrived at a diminution in value of 1.33%. If I were to adopt it, and I do not, that level of adjustment is insubstantial in any case. Potential nuisance

[58]Mr Fritchley submitted that the scale of the Works at the House was out of the ordinary and would involve extensive groundworks with heavy machinery as well as demolition at high level. He noted that Mr and Mrs Crossland were anticipating completion of the Works over an extended period and these factors taken together meant that the project would ‘almost certainly’ become a nuisance or annoyance to himself and other neighbours. Mr Fritchley said that the prospect of nuisance appeared to him to be the reason why part (b) of the covenant was included in the transfer and there was a benefit in upholding part (a) if it could be used to prevent a breach of part (b). Furthermore, the increased occupancy could be detrimental to peaceful living at the Lodge.

[59]Mr Fender said that the project was intended to meet the everyday needs of family life and that increased occupancy and footfall associated with Mr and Mrs Crossland’s extended family should not disturb Mr Fritchley given the distance between the two properties.

[60]Building operations are a regular occurrence in residential areas and Mr Fritchley himself had developed a large workshop building on part of the Lodge site. Mrs Crossland confirmed in oral evidence that she and her husband wanted to get on with building the western extension and although the whole project might take them seven or eight years to complete the process would not be continuous. The covenant is qualified rather than absolute and its purpose was not to prevent any development at all. A separate redress is available to Mr Fritchley if disturbance occurs over and above that which could reasonably be expected for domestic extension works.

[61]Neither does the covenant provide the means to control the occupation of the House. Mr Fritchley thought that the Works would provide nine bedrooms but Mrs Crossland confirmed that at most there would be seven. In Martin v Lipton

[2020] UKUT 8 (LC)

, (which concerned an application to modify a covenant preventing the development of a house in a garden), the Deputy President, Martin Rodger QC noted:

‘The restriction does not secure tranquillity. Any one of the original houses on the estate might be occupied from time to time by an exceptionally boisterous family, or might become the home of a mute contemplative. The restriction does not protect, nor was it intended to protect, the occupants of the estate against the ordinary consequences of life in a low density residential neighbourhood’

. The same principle applies here. I further note that Mr Fritchley chose to purchase the Lodge in the knowledge that it was adjacent to a large primary school and nursery. The setting is not therefore one of isolation and serenity. In my judgement, although the covenant provides a benefit for the objector in that it prevents disruption, in so doing it should not be characterised as being of substantial value or advantage.

[62]The fifth Re Bass question is not relevant to this application and the sixth and seventh questions deal with compensation, which I will come to shortly.

Determination

[63]It will be apparent from my analysis of the objections raised by Mr Fritchley, as far as the Works in this case are concerned, the covenant does not provide any practical benefits of substantial value or advantage. Mr Sykes placed most weight on the ability to control uncertainty about what might be built in the future, but in an application for a particular project which has planning permission, those concerns are mitigated. I therefore have jurisdiction to modify the covenant. The next consideration is whether I should exercise the discretion to do so.

[64]Neither party made any submissions on this point and there is nothing which leads me to the conclusion that the modification should not go ahead. That brings me to the matter of compensation.

[65]Mr White considered that there would be no diminution in value were the covenant to be discharged, and Mr Sykes’s figure was 10% of £545,000 if the covenant were to be modified. It was not possible to corroborate Mr Sykes’s valuation with the comparables he provided but he is an experienced chartered surveyor who practices in Barnsley. I am therefore inclined to accept his valuation. The adjustments he made for the loss of light, amenity and privacy amounted to 4% in the context of discharge. Each factor was equally weighted. I have discounted the loss of light entirely which leaves 2.66% for the other two. Applied to Mr Sykes’s valuation that results in a figure of £14,497. I award a figure of £15,000 as the appropriate compensation in the circumstances of this case.

[66]The following order shall be made: The restrictions in the Charges Register for the property known as 66 and 66a Kingwell Road, Worsborough, Barnsley S70 4HG (Title SYK403765) shall be modified under section 84(1)(aa) of the Law of Property Act 1925 by the insertion of the following words:

“PROVIDED that the development permitted under the grant of planning permission on 5 April 2024 by Barnsley Metropolitan Borough Council under reference 2024/0099 and subject to the conditions attached thereto may be implemented in accordance with the terms, details and approved drawings referred to therein. Reference to the above planning permission shall include any subsequent planning permission that is a renewal of that planning permission, any non-material amendments that are approved and any other matters approved in satisfaction of the conditions thereto.”

“PROVIDED that the development permitted under the grant of planning permission on 5 April 2024 by Barnsley Metropolitan Borough Council under reference 2024/0099 and subject to the conditions attache

[67]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:(i) Signified its acceptance of the proposed modification of the restriction in the Charges Register of the Property; and

(ii) Provided evidence that the compensation as detailed in paragraph 64 above has been paid to and received by the objector. Mr Mark Higgin FRICS FIRRV Right of appeal