[2024] UKUT 384 (LC)

No. 2 Redwing Close is a 4-bedroom house in a cul de sac of four similar houses on a small residential estate in the village of Hammerwich in Staffordshire. All of the houses on the estate are bound by covenants which restrict their use to private dwelling houses only and prohibit the carrying on of any business or trade. In this application the Tribunal is asked to exercise its power under section 84, Law of Property Act 1925 to discharge or modify those covenants so as to permit the use of the house as a small care home for two children.

Redwing Close is one of 20 new detached homes completed by Walton Homes Ltd at Hammerwich in 1988. No. 2 (which we will refer to as ‘the House’) was sold to its current owner, Mr Russell (and his former wife), on 29 April 1988. In January 2023 Mr Russell let it to the applicant, initially for a term of six months, but subsequently for a further term of two years from 30 June 2023.

The applicant, Coven Care Homes Ltd, was incorporated in September 2022 by Mr Daniel Chalenor, its sole director. It currently runs two small care homes for children with learning difficulties and complex needs, each of which is registered with OFSTED, the body responsible for standards in children’s homes, to provide care for up to two children aged between 7 and 18 years old. The first of its homes was registered in August 2023 and the second in March 2024.

The 1988 Transfer of the House to Mr and Mrs Russell contained a covenant given for the benefit of the remainder of the land developed by Walton Homes, to use the House “as a private dwellinghouse and not to carry on any business or trade thereon”. The covenant binds the land and any occupier of the land, not just Mr and Mrs Russell as the owners who agreed to it. It therefore binds the applicant.

All of the remaining houses built by Walton Homes in 1988 are admitted as having the benefit of the covenant and we will refer to them collectively as “the Estate”.

On 4 December 2023 the applicant applied to the Tribunal to modify or discharge the covenant to enable the use of the House as a children’s home to continue. The application has the support of Mr Russell.

The application was made following the receipt in November 2023 of a letter from solicitors acting for the owner of another house on the Estate objecting to the breach of covenant. That particular objection has not been pursued and the neighbours on whose behalf it was made have not participated in these proceedings.

The application is objected to by the owners of fifteen homes on the Estate who are named in the heading to this decision. Those whose homes immediately adjoin the House are Mrs Jennifer De Costa, who lives in the neighbouring house at No. 4 Redwing Close, Mr Christopher Knowles and Mrs Hillary Knowles, and Mr Gurmeets Niijar and Mrs Jagdish Niijar, who live opposite at Nos. 1 and 3 respectively. Other objectors whose gardens adjoin the rear garden of the House are Mr Robert Hodgson and Mrs Lyn Hodgson, Mr Andrew Booth and Mrs Julia Booth, and Ms Susan Van Zyl.

At the hearing of the application the applicant was represented by Mr Andrew McKie. None of the objectors attended but as we were satisfied that they had been given notice of the hearing and that it was in the interests of justice to do so, we proceeded in their absence and heard evidence from Mr Chalenor. After the hearing we visited Redwing Close and the surrounding streets. We did not go into the House or into the homes of any of the objectors as, having regard to the nature of the objections, we did not consider it necessary to do so.