[2024] UKUT 187 (LC)

Clarion’s case on ground (a) is that the character of the Court Lodge land has changed since the date of the Conveyance from open estate parkland to a medium-density private-sector residential neighbourhood. This has been accompanied by a marked change in another material respect, namely in the demand for and character of retirement accommodation. These changes have rendered restriction 2(a) obsolete. While Clarion accepted that clause 2(a) would not prevent the redevelopment of St George’s Court to provide a more modern warden assisted retirement scheme, due to its location and facilities such a would not be viable.

Evidence in support of Clarion’s case was provided by Sarah Sedgwick, its Director of Special Projects. She gave written evidence outlining the history of the application land and the reasons behind the application. Clarion has owned the application land since January 2018, following its acquisition of Russet Homes Limited, to which the Council had sold St George’s Court in 1991. The buildings remained unchanged until demolition.

Ms Sedgwick explained the difficulties that Russet Homes had experienced in filling vacant flats and bedsits at St George’s Court owing to the decreasing demand from older people for such accommodation, a problem experienced by many housing associations over the last decade. This was especially the case in developments built between the mid-1960’s and mid-1980’s designed with bed-sitting rooms with shared facilities, particularly in locations with limited facilities, GP surgeries, shops and public transport. Such dated schemes no longer met the expectations of older people.

Despite having a nomination agreement with the local authority, Russet had found it increasingly difficult to let units within St George’s Court, experiencing voids across the development. Older people do not feel the need for sheltered or warden-controlled accommodation until much later in life and Wrotham itself was no longer an attractive location, with few amenities and poor public transport links. Owing to these increasing difficulties, and with the local authority’s agreement, Russet Homes had stopped advertising vacant flats at St George’s Court in January 2014. Having consulted with residents and other stakeholders, in July 2014 it decided to demolish St George’s Court and redevelop the site for general needs affordable housing.

Ms Sedgwick gave examples of other social housing providers which had chosen to redevelop properties like St George’s Court. Amicus Horizon Housing Group initially attempted to remodel and refurbish its schemes, but these proved costly and unpopular with residents, and it subsequently chose to demolish and redevelop. Town and Country Housing Group demolished a 27-bedsit development at Paddock Wood, 11 miles from Wrotham, and instead built 35 one and two-bedroomed flats. Circle Housing Group, Russet’s parent company, reviewed a scheme known as Marvillion Court in East Peckham, a similar scheme to St George’s Court, deciding on advice to demolish and build 16 new homes for affordable rent and shared ownership.

In letter dated 15 June 2016 from Christy Holden, the Head of Strategic Commissioning at Kent County Council she confirmed that the County Council had in the past worked with district and borough councils on remodelling schemes in locations with good access to transport and local amenities. The experience of the County Council was that bedsit accommodation with shared bathrooms is unpopular, and that residents want adequate space and design standards, good access to safe transport, shops and amenities as well as community activities. In this regard, Ms Holden said, St George’s Court did not easily lend itself to such provision.

Russet’s November 2015 planning application for 60 units comprised 26 affordable rent and 34 shared ownership units, but following a government-imposed reduction in rents, that scheme ceased to be financially viable without the introduction of some private-sale units, of which 39 were then proposed, cross-subsidising the remaining 35% affordable housing units. That scheme was found to be overbearing in bulk and scale and the application was refused.

Clarion submitted a revised application for its current scheme of 38 units in two-storey buildings, comprising a block of 12 two-bed flats, 15 two-bed houses, and 11 three-bed houses. On 27 February 2019 the local planning authority resolved to grant planning permission subject to conditions including that 15 affordable housing units are to be provided of which 10 are to be for affordable rent, and 5 for shared ownership.

Ms Sedgwick said that Clarion intends to let the affordable housing units on general needs or at intermediate rents, depending on the level of grant it receives.

Mr Andrew Highwood FRICS is a director of Savills and provided written expert evidence for the applicant. He agreed with Ms Sedgwick’s assessment of the poor level of public transport serving Wrotham, citing the no.222 bus service which leaves Wrotham each day at 7.16 am, not returning until 16.39. In his experience, Clarion’s decision to redevelop followed a general trend moving away from bespoke shared facilities to other options which give older residents more independence.

The most detailed objection to the application were supplied by Mr Bell of the CGRA. He explained that he represented the views of CGRA whose members are all 39 residents of the 28 cottages and apartments in Courtyard Gardens (the development adjoining the eastern boundary of the application land, as shown on the plan above).

Mr Bell said that Courtyard Gardens was developed at the same time as St George’s Court and is subject to the same restrictions. He said that Wrotham has an aging population with over 14% of retirement age. In his view, the village offers a vibrant community providing substantial services for the elderly – the church, shops which deliver groceries, bowls and croquet clubs, bus services, pubs and a small hotel.

Mr Bell referred to a note he had received in August 2016 from Mrs Miskin, the daughter of Mrs Goring. She explained that her family had imposed the restrictions to provide premises where the elderly of the village could retire among their own people, freeing up family housing; they had also wished to prevent high-density development in the heart of the village. In Mr Bell’s view, the restrictions ensured the use of the land for accommodation for the elderly and offered the village of Wrotham a vital amenity that remains as important today as it did in 1975.

Mr Bell submitted that the character of the neighbourhood had not altered since the restrictions were entered into; very few alterations had been made to the properties fronting the West Street boundary, and none to the north, east and west boundaries. As for the application land, by their negligence, Mr Bell said, Clarion had allowed the buildings to fall into disrepair. Courtyard Gardens showed that it was not true that there was no call for ‘old persons warden schemes’. At Courtyard Gardens, occupation is restricted to the over-55’s yet there is demand for units with only one vacant property currently for sale. A well-maintained estate for older persons is possible within the terms of the covenant, and such a development at St George’s Court would continue to provide a much-needed facility within the area.

Mr Bell suggested that the role and accepted definition of a ‘warden’ had changed over time. In the past a warden would have been understood a provider of emergency assistance and monitoring of the wellbeing of residents, but now a warden was concerned with the administration and management of the estate. Courtyard Gardens has a part-time visiting manager, which Mr Bell considered was consistent with the restriction, and shows that it remains perfectly possible to provide accommodation for older people within the modern interpretation of a warden scheme.

Guidance on what is meant by “obsolete” in ground (a) was provided by the Court of Appeal in Re Truman Hanbury & Buxton & Co Ltd’s Application [1956] 1 QB 261 which concerned a residential estate sold subject to covenants prohibiting the use of any of the land as licensed premises. The applicant wished to open a pub on the estate. A number of the houses had been converted into shops and the applicant argued that the loss of the wholly residential character of the estate had rendered the covenant obsolete. The Lands Tribunal found that, although there had been a change in the character of the estate as a result of the opening of the shops, the change had not rendered the covenant against licensed premises obsolete. In the Court of Appeal Romer LJ explained the sense in which the word “obsolete” was used in ground (a), at pages 272-3; having said that the covenants had been imposed “for the purpose of preserving the character of the estate as a residential area for the mutual benefit of all those who build houses on the estate or subsequently buy them”, he went on:

A restriction will therefore be deemed “obsolete”, in the sense intended by ground (a), if because of relevant changes the objectives for which it was imposed can no longer be achieved.

In this case both Clarion and the objectors make the mistake of assuming that the purpose of the restriction is to ensure that the application land is used to accommodate older people. That was no doubt part of the motivation for imposing the restriction but, as we have already explained when rejecting Mr Bell’s submission that the covenant is positive, the purpose of the restriction is not to guarantee that the land will be used for supported housing, but to prevent it from being used for any other purpose. Although we place no weight on Mrs Miskin’s understanding of the Executors subjective intention in imposing the covenant, viewed objectively, as it must be, the purpose and effect of the restriction was to ensure that land in the centre of the village was not used for any purpose which might have been thought objectionable. It could not, for example, have been turned into a car park, or a supermarket, or a school.

While we accept that the evidence advanced by Clarion demonstrates that it is unable to design a development which would be financially viable while remaining within the restriction of use to an old persons’ warden scheme, that is not the issue. The restriction still has the effect of limiting the use which may be made of the application land by prohibiting any use other than for housing for older people and remains fully enforceable. If an attempt was made to build a doctor’s surgery on the land, for example, an injunction could be obtained by the residents of Courtyard Gardens to prevent it. In that way, the purpose of the restriction can still be achieved, and it is not obsolete.

Additionally, there is also obvious force in Mr Bell’s point that there is a demand for housing for older people in this location, as the example of Courtyard Gardens shows. The fact that the housing in Courtyard Gardens is occupied by freehold or long leasehold owners, rather than by short term tenants of a social housing provider, is not a relevant distinction when considering this restriction, which says nothing about tenure. Clarion, or more realistically another developer, might well be able to undertake a development of the application land for freehold or leasehold sale without any modification of the restriction being required, with a view to replicating the model of Courtyard Gardens. It certainly has not been shown that such a development would not be financially viable.

We are therefore not satisfied that the case on ground (a) has been made out in relation to paragraph 2(a).

Clarion’s case on ground (a) did not focus in particular on the restriction in clause 2(b), which requires the Vendors’ written consent to any development of the land. We are satisfied that that restriction is obsolete. The original Vendors are dead and cannot give their consent. The purpose of the restriction is incapable of achievement, and it has become obsolete.