Restrictive Covenant Breach - Compensation of £224,000 awarded to Ealing neighbours
In March 2018, I was contacted by residents of Elmcroft Close, which is adjacent to 59 Eaton Rise, Ealing W5. This was in connection with a new planning application for a substantial 3-Storey extension to the Victorian house plus a smaller outbuilding in the rear garden.
The detached Victorian house at No.59 has a large rear garden which some 28 years ago was subject to several unsuccessful attempts to carry out backland development by the then owner, Mr Richard Millett, on the back of his garden. The Planning Committee refused the application and a subsequent appeal was dismissed by The Planning Inspectorate in Bristol.
At that time we were fighting purely on planning grounds. On this occasion in March 2018, I also investigated if there might be a restrictive covenant of any assistance to the Objectors.
Eventually after a determined campaign by the Objectors, planning permission was granted by Ealing Council for the new development in February 2020 to convert the property from 2 flats into 7 self-contained flats.
The Restrictive Covenant was created in the mid-1960s and stipulated what could be built at the rear of No.59 which included the former boundary wall. Although the wall was replaced by a fence long ago, the covenant limited any new building to that of the original wall-height at that time. Subsequently, this was estimated to be about a metre high. The proposed 3-Storey rear extension would of course be very substantially higher this modest wall and therefore was in clear breach of the Restrictive Covenant.
The neighbours raised this issue with the developer and eventually having received planning permission in February last year, the developer subsequently made an Application to the Upper Tribunal (Lands Chamber) for a modification of the Restrictive Covenant so as the permit the extension and outbuilding. The original proposal was for 8 flats but this had been replaced by a revised planning application for 7 flats in October 2018.
After a Hearing of the Upper Tribunal (Lands Chamber) on 27th & 28th July 2021, the Tribunal Member, Chartered Surveyor Ms Diane Martin MRICS FAAVA, decided to allow the proposed modification of the Restrictive Covenant but ON TERMS.
The terms are according to the 28-page Decision of the Upper Tribunal (Lands Chamber) which can be read in full on the Internet is that in order to obtain the proposed Modification, the developer, Mr Emil Moskofian, must pay a total sum of £224,000 to 11 Objectors who reside in the houses at Elmcroft Close (No.1-11) as Compensation. The highest award was of £40,000 to one Objector and the lowest £8,000; five others were awarded £16,000 each and four more were awarded £24,000 each.
In past days, the Tribunal might have even turned the application down as the compensation is quite large.
This is the third highest award of Compensation in a Middlesex covenant case I know of. In this borough, the highest was £350,000 (flats instead of private dwellinghouses), in Wembley £230,000 for a school building on a playing field where houses are anyway allowed but never built).
I note with satisfaction that on page 9 of the Decision, Ms Martin stated with regard to a precedent having been set by their lack of previous objection to height above the boundary of the garden trees, and construction of the first floor balcony, that the objectors originally “were unaware of the covenant until alerted to it by a neighbour in March 2018…“ That neighbour (myself) was able to assist the residents at the start of their battle due to long experience with Restrictive Covenants since our first ever case in December 1986 - March 1991 at 8 Longfield Road Ealing W5 (which took 4 years in the High Court and Lands Tribunal - the longest single covenant case ever fought in Ealing with 6 days in court) preventing a major backland development behind the sequence of gardens of houses in Longfield Road, Castlebar Road and Gordon Road on the “Hanger Hill Estate, Ealing” and the proposed use of the garden of 8 Longfield Road as a Vehicular Access Road after demolition of the red-bricked 1883 dwellinghouse built by James Wills, who lived at 43 Castlebar Road.
This lends some weight to the words of a past Tribunal Member that the benefit of a restrictive covenant may be found “like hidden treasure in the hour of need”.
Finally, I am glad that I did not take Mr Richard Millett’s advice some 27 years ago when he wrote to me telling me to “go back to Japan and save Tokyo”.
Victor Mishiku 29/9/2021
“The Covenant Movement”
Victor Mishiku ● 1844d8 Comments ● 1822d