Business Use of Residential Property - Upper Tribunal Strikes the Balance

Any proposal to make business use of a purpose-built residential property is likely to draw objections. However, as a case concerning the planned utilisation of an urban dwelling as a privately run home for children in care showed, neighbours' concerns, whilst understandable, cannot always trump social need.

The detached property, which formed part of a residential estate, was purchased by a couple with a view to it serving as a home for up to four vulnerable children. Their proposal drew 31 letters of objection and only one in support. The couple were nevertheless granted planning consent for the change of use.

That, however, was not the end of the matter: included in the property's title deeds was a restrictive covenant which forbade its use for any purpose other than that of a single private dwelling house. Faced with that difficulty, the couple applied to the Upper Tribunal (UT) to modify the restriction.

Resisting the application, the owner of a next-door house pointed out that, for about 11 months, the property had been used as a care home in breach of the covenant. During that period, there were numerous visits to the property by the police and ambulance staff.

Shouting and banging were to be heard coming from the property late at night and she was concerned about the impact on her own young children, particularly during the summer months. She was worried that the proposed change of use would substantially devalue her home, rendering it less desirable.

The couple were open in acknowledging that the property would be used as part of a business, rather than as a traditional family home. They were, however, passionate about caring for children in need, who would usually receive one-on-one supervision in what was intended to be a homely environment. Ambulance and police callouts were sometimes necessary when a child was at risk. The restriction imposed by the covenant was standing in the way of the home's registration by Ofsted.

Ruling on the matter, the UT found that the couple's proposed use of the property was a reasonable one. In granting planning permission, the local authority had regard to neighbours' concerns, including intensified comings and goings, loss of privacy, parking issues and a potential increase in anti-social behaviour. The council acted on advice that the impact on the amenity of neighbours would not be so detrimental as to amount to a breach of planning policies.

Expressing sympathy for the objector, the UT understood her and her husband's concern regarding the potential for disruptive events at the property to impact on their enjoyment of their home and on the experience of their young family when in the garden.

The UT found, however, that the proposed change of use would have no discernible adverse impact on the value of the objector's property or others in the locality. Impeding the couple's proposal would secure no benefit of real value or advantage to her. Using powers conferred on it by the Law of Property Act 1925, the UT modified the covenant to the extent required to enable implementation of the change of use authorised by the planning permission.