The Upper Tribunal (UT) recently granted modification of a restrictive covenant to allow a house to be used as a children’s care home.

The house was on a small residential estate. All the houses on the estate were bound by covenants restricting their use to private dwellings and prohibiting the carrying on of any business or trade. After it was let to a care home company, the house began to be used as a home for up to two children with learning difficulties. The company applied to the UT under Section 84 of the Law of Property Act 1925 to modify or discharge the covenant to allow the use to continue.

The owners of a number of houses on the estate objected to the application. They raised concerns about an increase in traffic and parking issues due to the number of staff visiting the property. They also argued that discharging the covenant might result in development of the house or a change in the activities it was used for. It was suggested that allowing a business to be run from the house would set a precedent that might significantly alter the character of the neighbourhood.

The director of the company gave evidence, which the UT accepted, that the neighbours all had his phone number but none of them had contacted him to complain about parking. The covenant said nothing about parking: parking on the street was a normal feature of residential estates and homeowners were not entitled to expect that it would not occur. The UT was satisfied that the house’s use as a children’s home was no more likely to lead to an unusual number of vehicles nearby than if it were occupied by a family, who might have visitors or social events.

The UT noted that physical development of the building would require planning permission in the usual way. It was a condition of the company’s OFSTED registration that each child have their own room and, as such, the house could not accommodate more than two children. A future use such as secure accommodation would be a material change of use requiring planning permission. Applications by other homeowners to relax their own covenants to permit business use would be determined on their merits, and would be neither more nor less likely to be granted if the company’s application succeeded.

The company had successfully demonstrated that the proposed modification of the covenant would not cause injury to those entitled to benefit from it. The UT observed that the company had been in breach of the covenant without this having an adverse impact on the objectors, and noted the public interest in the availability of supported accommodation for disadvantaged young people. The UT granted modification of the covenant to allow the house’s use as a care home for up two people under the age of 18 in accordance with Class C2 of Schedule 1 of the Town and Country Planning (Use Classes) Order 1987, but excluding use as a secure residential institution under Class C2A.