Coven Care Homes Limited v James Hockney & Ors

Under section 84 of the Law of Property Act 1925, an applicant must first establish a statutory ground for modifying or discharging a restrictive covenant. The Tribunal then retains a discretion whether to make an order and may impose conditions limiting its scope.

For ground (c), injury includes adverse effects on property or its enjoyment, whether or not they reduce financial value. Unsupported fears about future intensification or changed use carry no weight. The Tribunal should assess the realistic consequences of the proposed modification and may impose further restrictions. A modification permitting a specific, low-impact business use may be appropriate where it causes no injury and advances the public interest.

Coven Care Homes Limited, the tenant of a house subject to covenants restricting its use to a private dwellinghouse and prohibiting business or trade, applied under section 84 of the Law of Property Act 1925. It sought permission to continue operating the property as a small children’s care home for up to two children under 18.

Fifteen neighbouring owners objected, principally on grounds of parking, possible intensification or alteration of the use, and the potential effect on the enforceability of similar covenants. The applicant withdrew its request for complete discharge and pursued modification only. The central issues were whether ground (c) was established and, if so, whether the Tribunal should exercise its discretion to modify the covenant.

1. Application allowed. The application for complete discharge was withdrawn. The covenant was modified to permit use of the premises for the business of a care home for up to two children or young persons under 18, in accordance with class C2 and not C2A of the Town and Country Planning (Use Classes) Order 1987.
2. Section 84 provides a two-stage process. The applicant must establish at least one statutory ground. If a ground is made out, the Tribunal retains a discretion whether to modify or discharge the covenant and may impose conditions or additional restrictions.
3. For ground (c), injury means an adverse impact on an objector’s property or enjoyment of it. It is not confined to financial diminution. The objections concerning parking were unsupported by sufficiently specific evidence. Ordinary, considerate residential parking was not an injury, and the proposed care-home use was no more likely to cause obstruction than ordinary family occupation.
4. Fears about future intensification, physical development, accommodation of more children or adults, or secure accommodation were speculative. The Tribunal gives no weight to unsupported speculation, although it may address realistic future consequences by imposing further restrictions. The proposed use was capable of being limited to two children or young persons under 18 and to class C2 use.
5. The applicant’s breach while pursuing the application was relevant but carried little weight because it had not changed the facts on the ground or caused adverse impact. The public interest in supported accommodation for vulnerable young people favoured modification. The order was therefore confined to the current use and did not authorise other business uses.