Theodossiades v Smith & Ors

Section 610 of the Housing Act 1985 concerns a genuine conversion of existing premises into two or more dwellings. It does not extend to complete demolition of an existing dwelling house followed by construction of a wholly new building, even where planning permission authorises the development. The critical question is the ordinary meaning of “conversion” or “converted”. Physical adaptation or subdivision of an existing building may qualify. Wholesale removal and replacement by a new structure does not. Planning permission is therefore not, by itself, sufficient to engage the court’s power to vary a restrictive covenant.

The applicant, the registered proprietor of Gaisgill, sought permission to appeal against an order of His Honour Judge Gerald in the County Court at Central London. The order answered “no” to the preliminary issue whether a proposed development constituted a “conversion” within section 610 of the Housing Act 1985.

The development involved demolishing the existing Victorian dwelling and replacing it with a larger, differently orientated building containing six flats. Planning permission had been granted, but the development would breach restrictive covenants limiting the land to one or two private dwellinghouses. Permission to appeal had already been refused by the first-instance judge and by Lewison LJ. The central issue was whether the proposed demolition and replacement was a “conversion” within section 610.

1. Application refused. The proposed development was not a “conversion” within section 610 of the Housing Act 1985, so the statutory jurisdiction to vary the restrictive covenants was not engaged.
2. Section 610 covers two situations: neighbourhood change making a single dwellinghouse unsuitable for letting as such but suitable for letting after conversion into two or more dwellinghouses; and planning permission for use of premises as two or more separate dwellinghouses instead of a single dwellinghouse. In either case, the relevant conversion must be prohibited or restricted by a lease, restrictive covenant or otherwise.
3. The statutory interpretation turns principally on “conversion” and “converted”, rather than on an artificial dispute about whether the existing dwellinghouse is synonymous with “the premises”. In ordinary usage, conversion indicates physical adaptation of something already existing. Subdivision of an existing substantial dwelling into flats within that structure may therefore be a conversion.
4. Complete demolition and removal of the existing dwelling, followed by construction of an entirely new building in its place, cannot naturally be described as conversion. The first-instance judge and Lewison LJ had not made an interpretative error.
5. Planning permission does not itself determine whether section 610 applies. It provides the context for one statutory route, but the separate question remains whether the development satisfies the statutory criterion of conversion. The application for permission to appeal was accordingly refused.

• Court of Appeal (Civil Division) — Permission to appeal renewed and refused: [2015] EWCA Civ 566.
• Central London Civil Justice Centre, County Court — His Honour Judge Gerald answered “no” to the preliminary issue whether the proposed development was a conversion within section 610 of the Housing Act 1985.
• Permission stage — Permission was refused by His Honour Judge Gerald and subsequently by Lewison LJ on 4 March 2015.