A Northallerton couple who had “gambled” that their neighbours would have to allow their house extension have lost an appeal to retain the alterations.
Two judges have given Colin Bailey and Pamela Waterton-Bailey four months in which to remove a 238 sq ft (22 sq m) conservatory, which they had added to their Ainderby Steeple home last year.
The court upheld claims by neighbours Martin and Jocelyn Mortimer that they had reasonably withheld consent because the conservatory blocked views from and light to a kitchen window at their own home, known as The Heugh.
Peter Gibson LJ said that, by going ahead with the extension against the wishes of their neighbours, the Baileys had “taken a gamble that it was unreasonable for the Mortimers to have withheld consent”. He said: “They lost that gamble.”
He remarked that, in this case, “the issue of neighbourliness seems to have gone out of the window.”
Jacob LJ added that, because permission for the extension had been in doubt, it would have been “prudent” for the Baileys to “sort out the matter” before they began building the extension. He said: “If they take a chance, the circumstances in which an injunction will be withheld will be rare.”
The Baileys, who purchased their home, known as The Old Barn, from Mr Mortimer’s brother in 2002, had obtained planning permission for the extension in April 2003.
Although the Mortimers were entitled to refuse consent to any development works under a covenant, the Baileys started construction the following June on the basis that consent had been unreasonably withheld.
In November 2003, Judge Bowers, sitting in Middlesborough County Court, granted an injunction ordering demolition of the extension, which he said had a “significant impact” on the amenity of The Heugh so far as lighting was concerned.
In upholding that ruling today, the Court of Appeal said that Judge Bowers had been “entitled to form the impression that he did” and that that there was “no justification for interfering with his exercise of discretion”.
Bailey and another v Mortimer and another Court of Appeal (Peter Gibson and Jacob LJJ) 29 October 2004.
Ian Pennock (instructed by Appleby Hope & Co, of Sunderland) appeared for the appellants; Richard Merritt (instructed by Higgotts, of Billingham) appeared for the respondents.
References: EGi Legal News 29/10/04
