A couple who live in a block of five flats in affluent Holland Park in west London have escaped paying out £430,411.50 in legal costs in a long-running war to block celebrity architect Sophie Hicks from building an underground house next door.
This means that the four other flat-owners between them will have to divvy up the £2 million costs – described as “eye-watering” in the ruling – adding more than £100,000 each to the toll.
The upper tribunal ruling last month is the latest in a series of marathon court wrangles since Sophie Hicks in 2012 bought a 23ft by 140ft plot of land next door to 89 Holland Park Road.
She did so although the land had a deed of covenant from the freehold of 89 Holland Park, which now belongs to the flat owners at the enfranchised site.
Sophie Hicks had hoped to build a futuristic underground house in west London But neighbours in exclusive Holland Park objected to plans on aesthetic grounds The High Court last year ruled they were wrong to stop plan on matter of taste The Court of Appeal today reversed the High Court’s original decision A celebrity architect who wants to build a modern glass-fronted house in Kensington’s ‘millionaire’s row’ has lost the latest battle in her legal fight against wealthy neighbours opposed to the development.
Although the architect received planning permission for her two-level underground dwelling, the leaseholders have successfully enforced the covenant in spite of “expert reports on arboriculture, engineering, heritage and aesthetics, as well as legal representation by solicitors and by leading and junior counsel”, says the ruling.
“By 2021 when the FTT gave its decision the total costs incurred were over £2.7 million.
“Costs paid or to be paid by Ms Hicks are to be deducted from that figure, but further costs have been incurred since it was calculated; overall the costs to the respondent will have been in the region of £2 million – a salutary reminder that the recovery of costs in litigation may still leave a successful party seriously out of pocket.”
Andrew and Jennifer Dell, who live on the top floor of the block, disagreed with the massively expensive legal warfare backed by their fellow leaseholders and freehold owners in resisting Ms Hicks’ development.
Although Mr Dell had been “at the heart of the resistance to Ms Hicks’ plans from the outset” as a director of 89 Holland Park, he stood down in 2013 when the couple moved abroad.
When litigation started again in July 2014 the Dells, who cannot see the garden area from their flat, told their neighbours:
“We are perhaps less concerned by the eventual outcome (rightly or wrongly), but have tried to be neighbourly and supportive to date. We have now reached a conclusion that we do not wish to spend any more on this series of legal actions. We also wanted to be very clear that we have no objection to anyone continuing with an action but we do not wish to be a party, either in law or financially.”
The others, however, continued their legal actions on the service charge, and the First Tier Tribunal ruled that they were entitled to do so, hence the Dells’ appeal.
Their key argument, deployed by Mark Loveday and Mattie Green, of Tanfield Chambers, concerned clause 4 of the Dells’ lease:
“To employ all such surveyors builders architects engineers tradesmen solicitors accountants or other professional persons as may be necessary or desirable for the proper maintenance safety and administration of the Building.”
“Without prejudice to the foregoing to do or cause to be done all such works installations acts matters and things as in the reasonable discretion of the Lessor may be considered necessary or advisable for the proper maintenance safety amenity and administration of the Building.”
The question whether litigation costs can fall within service charges has been considered on a number of occasions in the courts, and the Upper Tribunal referenced a good number of them.
Judge Elizabeth Cooke ruled:
“I repeat that the respondent was entitled to refuse consent to the development, and entitled to defend the legal proceedings (in which it was to a large extent successful). That is not the issue here; the issue here was whether the respondent was obliged to do so under clause 4(4) of the lease, to which my answer is no.”
As a result, the Dells escaped paying up £430,411.50, but with this lot and these sums, it is an open question whether the case heads off to the Court of Appeal.
The ruling is here:
And interesting analysis of the case here:
Back to insights hub In a promotional video celebrating a recent project, award-winning architect Sophie Hicks said: “I think it’s very important for a new house to sit very comfortably and fittingly in its landscape”. ¹ However, protracted litigation with neighbours over Ms Hicks’ development plans for her home in Holland Park, London, demonstrates how subjective and divisive opinions and perspectives on this can be.