Sean Denis Doherty & Anor v Alexander Paskhin
Decision date: 10 August 2023
Neutral citation: [2023] UKUT 196 (LC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This appeal concerned an application under s.84 to discharge or modify a 1984 restrictive covenant preventing external alterations at 4 Kerfield Place so the owners could build a rear single‑storey extension and a loft dormer. The Tribunal rejected grounds (a) and (b) but found ground (aa) (and therefore (c)) made out: the proposed works were reasonable and the restriction did not secure practical benefits of substantial value to the objecting adjoining owner. The Tribunal ordered modification limited to the works authorised by the applicants’ certificates of lawfulness, subject to conditions including a one‑occasion indemnity in respect of Party Wall Act costs.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: medium
A restrictive covenant is not rendered obsolete merely because some neighbouring properties have breached it; one must assess the original purpose and the overall character of the neighbourhood. Where proposed works fall within permitted development parameters and are supported by certificates of lawfulness and planning history, that is strong evidence the use is a reasonable one for s.84(1)(aa) purposes. Practical benefits said to be secured by a covenant must be evidenced; absent substantial practical benefit to those entitled, modification may be appropriate provided suitable protective conditions or indemnities are imposed.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The Tribunal observed that a Party Wall Act award and related dispute-resolution mechanisms, when supplemented by a bespoke indemnity, can mitigate adjoining owners’ structural risk concerns. It also noted that isolated similar developments on an estate do not automatically establish a general change of character or justify refusal; each application must be judged on its own merits.