Dusty Restrictive Covenants Stymie Care Home Development Plans

Restrictions on the use and development of land frequently lurk in old and dusty title deeds, but their antiquity does not mean that they are ineffective. In a case on point, plans for a multi-million-pound care home for the elderly were effectively stymied.

HousesA developer obtained planning consent for the 62,000-square-metre care home on a 1.5-acre site. The land was, however, subject to restrictive covenants contained within a number of conveyances dating to 1910. They dictated, amongst other things, that only three detached private dwellings should be built on the site.

The developer failed in High Court proceedings in which it sought a declaration that the covenants were unenforceable. Undaunted, however, it subsequently lodged an application under Section 84(1) of the Law of Property Act 1925, seeking sufficient modifications to the covenants so as to enable the development to proceed.

In dismissing the application, the Upper Tribunal (UT) noted objections from a number of neighbouring homeowners who enjoyed the benefit of the covenants. If the care home were built, they would look out onto an incongruously large and brightly lit building relatively close to their boundaries.

The care home would have a uniformity of appearance and institutional character very different from the domestic homes permitted by the covenants. In those circumstances, the UT found that the covenants continued to yield substantial benefits to the objectors and that it would be wrong to modify them.