Panashe Muskwe & Anor v Michelle Cochrane

Under section 84 of the Law of Property Act 1925, a restrictive covenant may be modified where it impedes a reasonable use and secures no practical benefits of substantial value or advantage to those entitled to its benefit. Planning permission is relevant but does not itself determine the application. The Tribunal must assess the evidence, the covenant’s context, the development plan, planning patterns and all other material circumstances. A proposed residential care home for children may be a reasonable residential use where the evidence does not establish a valuable benefit to neighbouring owners. Where modification causes no injury, the alternative ground under section 84(1)(c) may also be satisfied.

The applicants owned a house burdened by covenants restricting its use to a single private dwelling house with usual outbuildings. They obtained planning permission for use as a residential care home for up to four children or young persons and sought modification of the covenants under grounds (aa) and (c) of section 84 of the Law of Property Act 1925.

The sole objector lived in the adjoining property. She relied on disturbances, emergency-service attendances, possible effects on her family’s enjoyment of the property, parking difficulties and alleged diminution in value. The central issue was whether impeding the proposed use secured any practical benefits of value or advantage to her, and whether the proposed modification would injure persons entitled to the benefit of the covenants.

1. Application granted. The restrictions were modified under section 84(1)(aa) of the Law of Property Act 1925 to permit use of the property as a C2 residential care home for up to four children or young persons, subject to the specified planning permission and any renewal.
2. The proposed use was reasonable and was impeded by the restrictions. Planning permission supported that conclusion, but the Tribunal independently assessed the likely effects of the use.
3. The question under section 84(1A) was whether the restriction, in impeding the proposed use, secured any practical benefits of value or advantage to the objector. The assessment required consideration of the evidence, the relative properties, the experience of the earlier period of use, the proposed supervision arrangements, parking, valuation evidence and the likely effect on neighbouring amenity.
4. The evidence established concerns and occasional disruptive incidents, but not regular occurrences or circumstances requiring formal intervention. The adjoining property’s higher level and boundary screening provided additional separation. Parking problems were a general feature of the area rather than a specific benefit secured by the covenant. The expert valuation evidence supported the conclusion that there would be no discernible adverse impact on value or saleability.
5. Under section 84(1B), the local planning evidence and the pattern of permissions for comparable C3-to-C2 changes of use supported modification. The age and residential context of the covenants were also considered. The proposed use did not offend their spirit and intention.
6. The Tribunal found that the restriction secured no benefit of value or advantage to the objector. Ground (aa) was therefore made out. It followed that ground (c) was also satisfied because the modification would not injure those entitled to the benefit of the restrictions. The prior brief period of use in breach did not justify refusing relief.

not stated in the judgment.