[2024] UKUT 187 (LC)

Clarion’s case on ground (aa) is much more straightforward. It is that the clause 2(a) prevents a reasonable use of the application land for general needs social or affordable housing and that no injury will be caused to the objectors or to anybody else with the benefit of the covenant if that use is allowed to be implemented.

It does not appear to be in issue that the proposed development is a reasonable use of the application land; Mr Highwood thought it was, Mr Bell for CGRA agreed, and of the other objectors’ varied complaints, none made any substantive point on this question. If Clarion’s proposals are implemented, land which was previously used for residential purposes will resume that use; the only difference will be that those who are accommodated at St George’s Court will no longer be exclusively older people. We are satisfied that the proposed use is a reasonable one for the purposes of the s.84(1) of the Act.

The restriction also clearly impedes the intended use. While it does not affect the physical building of the new scheme, it will not be restricted to older people, nor will there be a warden, so we are satisfied that Clarion would be unable to let or sell the new units as it wishes to.

Do the restrictions secure a practical benefit of substantial value or advantage to the objectors? The restriction does not prevent the development of the application land for housing, and it is not appropriate to assess any suggested benefit by comparing the proposed scheme to the land in its current undeveloped condition. The relevant comparison is between the application land developed subject to the restriction, and therefore used only as warden supported accommodation for older people, and the application land, developed, but free of the restriction and occupied by people of any age, including families who may be expected to occupy the proposed two and three bedroomed houses.

A number of objections referred to the need to retain housing in the village for older people, but that is not a benefit secured by the restrictions. But the restrictions do not guarantee that warden supported housing will be available on the application land, and despite there having been no breach of the restriction it has been many years since older people lived at St George’s Court.

Some of the objectors identified specific benefits which they considered accrued to them from the restriction while others explained their objection in more general terms.

Mr and Mrs Hipgrave at 3 Childs Way thought that ‘high rise new buildings’ would block light over their house. We think that extremely unlikely, because their property is to the north of Childs Way, and like St George’s Court, the new development is limited to two storeys. We note also that the planning officer, from whose report we have quoted above, considered that no harmful overlooking would arise from the new development or any adverse loss of daylight or sunlight.

Mr Barry Boxall of 11 Childs Way thought that families living in the new development would create noise, and there would be an effect on his property’s value. We can see no reason why the sort of noise which is likely to arise from the occupation of modest family homes should have any impact on the value of Mr Boxall’s property, which is separated from the application land by another house on Childs Way. To the extent that, in general, older people may be expected to lead quieter lives than small families, there is a case that the restriction provides some protection from the noise of ordinary domestic living to those objectors whose homes more immediately adjoin the new development. But in what is already a relatively dense residential area we are not satisfied that any such protection is significant. There is no evidence to suggest that houses neighbouring a particularly quiet housing estate are more valuable than houses neighbouring an estate where noise levels are at normal residential levels. Nor does the restriction provide protection against occasional rowdiness; even older people may sometimes be noisy neighbours or may entertain or be visited by members of their own extended families.

Several of the residents of Courtyard Gardens said that they bought their property in the knowledge of the covenants, on both their development and on St George’s Court; they understood that their neighbours would be of a similar age and lifestyle to themselves. They thought that modification of the restriction would detract from the saleability and value of their houses.

Seven objectors from five houses claimed compensation if the restrictions were modified, in amounts varying from £750 to £75,000. Other objectors indicated that they did not wish to claim compensation, while some did not say whether they wished to or not. None of the claims for compensation were supported by evidence of a difference in value, for example between property adjoining Courtyard Gardens, which is subject to the restriction, and property adjoining housing which is not subject to the restriction.

On behalf of Clarion Mr Highwood said that he found it difficult to see any difference between the impact on neighbours of St George’s Court and the proposed development. An acoustic specialist had concluded that the noise levels would be similar other than during the construction period (and construction noise would be experienced whether or not the restriction was modified). In Mr Highwood’s view, the previous use would have been likely to give rise to more frequent visits from noisier vehicles such as minibuses than the proposed use. The new scheme was designed to mirror St George’s Court in terms of footprint and ridge height, which the planning officer was satisfied would avoid any change compared to the previous arrangements. He therefore thought that modification of the restrictions would have no effect on the neighbour’s amenity.

On the evidence before us, we agree with Mr Highwood’s assessment. In our judgment only the properties that directly adjoin the application land, or are very close to it, might be affected in any way by the new development. But given that the development has been designed to mirror the scale and massing of the previous buildings, there is unlikely to be any discernible effect upon them whether in terms of amenity or value, and there is no expert evidence from the objectors to suggest otherwise. We are therefore satisfied that, in impeding the proposed development, the restrictions secure no practical benefits of substantial value or advantage to the objectors.

That conclusion makes it unnecessary for us to consider he alternative way in which the claim under ground (aa) was advanced, that in restricting the proposed development the restrictions are contrary to the public interest. It is well known that there is a pressing need for additional housing in Kent, as in many other parts of the country. Mr Highwood referred to the local authority’s Housing Strategy 2022-2027 as specific evidence of that need. Clarion and its predecessor, both social housing providers, have concluded that they are unable to help relieve that urgent need by development on the application land while it remains subject to the restrictions. In our judgment a compelling case could be made out in favour of the view that the modification of the restriction would be in the public interest. But as we are already satisfied that the application in respect of clause 2(a) should succeed on the first limb of ground (aa) it is not necessary for us to reach any concluded view on the alternative limb.

For the reasons we have given the application succeeds in relation to clause 2(a) of the Conveyance under ground (aa), and in relations to clause 2(b) under ground (a). We will make an order discharging clause 2(b) and modifying clause 2(a) to provide that the application land will not be used other than for ‘residential and ancillary purposes’. We do not consider that any award of compensation is appropriate in this case.