Panashe Muskwe & Anor v Michelle Cochrane

Panashe Muskwe & Anor v Michelle Cochrane

The Tribunal found that the restrictive covenant impeded a reasonable use of the property as a residential care home, that impeding the use did not secure any practical benefits of substantial value or advantage to the objector, and that modification would not injure those entitled to the benefit of the restriction. The evidence did not support a discernible adverse impact on neighbouring property value or amenity, and the planning context supported the modification.

Parties
Applicant: Mr Panashe Muskwe; Applicant: Ms Tasunungurwa Havazvidi-Muskwe; Objector: Michelle Cochrane
Jurisdiction
England and Wales
Judgment Date
31 October 2023
Procedural Posture
Application for Modification of Restrictive Covenant / Decision on Application After Hearing
Outcome
Application for modification of restrictive covenant granted
Legal Topics
Restrictive Covenants, Modification of Covenants, Residential Care Homes, Planning Permission, Section 84 Law of Property Act 1925
Land Law Property Law Restrictive Covenants Modification of Covenants Residential Care Homes Planning Permission Section 84 Law of Property Act 1925

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Parties

Mr Panashe Muskwe

Applicant

Ms Tasunungurwa Havazvidi-Muskwe

Applicant

Michelle Cochrane

Objector

Procedural Posture

Application for Modification of Restrictive Covenant / Decision on Application After Hearing

Legal Issues

  1. 1 Whether the restrictive covenant should be modified to permit use of the property as a residential care home for up to four children/young persons
  2. 2 Whether the covenant secures practical benefits of substantial value or advantage to the objector
  3. 3 Whether modification would injure persons entitled to the benefit of the restriction

Ratio Decidendi

The Tribunal found that the restrictive covenant impeded a reasonable use of the property as a residential care home, that impeding the use did not secure any practical benefits of substantial value or advantage to the objector, and that modification would not injure those entitled to the benefit of the restriction. The evidence did not support a discernible adverse impact on neighbouring property value or amenity, and the planning context supported the modification.

Court Disposition

Application for modification of restrictive covenant granted

Orders

  • The restrictions in the Charges Register for 6 Hereford Drive, Braintree, Essex CM7 9FX are modified under section 84(1)(aa) of the Law of Property Act 1925 to permit use as a residential care home (C2) for up to four children/young persons subject to the conditions of the planning permission dated 11 February 2020...