The Lease stated at Clause 3:
“Not to make any structural alterations or structural additions to the Flat, without previous consent in writing of the Council such consent not to be unreasonably withheld”
The Defendant claimed that his understanding was that this was a qualified covenant and therefore no premium would need paying to the Council for the works.
However, in the Third Schedule to the Lease, the Defendant also covenanted:
“Not to alter the external appearance of the flat in any way”, and “if the Flat has a garden to use it only for the purposes of a garden and keep the same neat and condition free from weeds”.
Accordingly, the Claimant argued that, having erected an extension to the flat without their prior consent, the Defendant was in breach of his lease. As a result, the Claimant pleaded that they had suffered loss and damage and claimed damages in lieu of an injunction restraining the breach of covenant.
The Claimant said that they were entitled to damages which reflected the outcome of a notional negotiation which might have taken place had the Defendant initially sought the consent of the Claimant to the development carried out. Furthermore, it was claimed by the Claimant that they were entitled to an appropriate proportion of the Defendant’s profit which had been enjoyed or resulted from the breaches.
Riccardo assessed the damages and it was agreed at the mediation that compensation was payable closer to his figure than the damages assessed by the Defendant’s representative. Payment of the Claimant’s costs of dealing with the consent and a deed of variation was also deemed to be payable by the Defendant.