Restrictive covenant – Modification – Section 84(1) of Law of Property Act 1925 – Applicants wishing to operate Ofsted registered childminding business from home – Property subject to restrictive covenants not to carry on trade or business and to use only as private dwellinghouse – Applicants applying to modify restrictions under section 84(1)(aa) and (c) of 1925 Act – Whether proposed use being reasonable – Whether proposed use impeded by covenant – Application granted
The applicants applied to the Upper Tribunal under section 84(1) of the Law of Property Act 1925 to modify restrictive covenants contained in a 1937 and a 1965 conveyance that burdened the title to 44 Knights Hill, Aldridge, Walsall, preventing its use for trade or business and limiting use to a private dwellinghouse only. The applicants wished to operate an Ofsted registered childminding business at the property.
The property was a detached two storey house facing onto the residential street of Knights Hill in the town of Aldridge near Walsall. The property was the third house from the junction, with its access drive located on the outer edge of a bend in the road. Roadside parking was possible on the opposite side of the road.
The applicants had not applied for planning permission to run a childminding business from the property because it was their understanding that no permission was required for a business of up to six children. In the absence of scrutiny by the local planning authority, which would follow from a planning application, the tribunal had to satisfy itself that the proposed use of the property was reasonable before it could modify the restriction to permit a business use.
Section 84(1) of the 1925 Act gave the tribunal power to discharge or modify any restriction on the use of freehold land on being satisfied of certain conditions. The application was made under section 84(1)(aa) and (c). Ground (aa) was satisfied where it was shown that the continued existence of the restriction would impede some reasonable use of the land for public or private purposes or that it would do so unless modified. The application was determined on written representations.
Held: The application was granted.
(1) As there were no identified persons entitled to the benefit of the restrictions in the present case, ground (c) had no relevance.
By section 84(1A), in a case where condition (aa) was relied on, the tribunal might discharge or modify the restriction if it was satisfied that, in impeding the suggested use, the restriction either secured “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or that it was contrary to the public interest.
In determining whether the requirements of section 84(1A) were satisfied, and whether a restriction ought to be discharged or modified, the tribunal was required by section 84(1B) to take into account “the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstance”.
Under ground (aa) the tribunal’s considerations were confined to whether the continued existence of the restrictions would, unless modified, impede some reasonable use of the property for private purposes.
(2) In the absence of a planning application, with scrutiny by the local planning authority and scope for objections to be made, the tribunal had to use its own judgment to determine whether the proposed use was reasonable for the purposes of the present application. The tribunal’s impression on inspecting the property was that it was compromised for a business use involving cars by the location of its access, close to a road junction.
The applicants had supplied evidence which established that: from 2017 to 2020 no traffic collision had occurred on Knights Hill; not all potential parent clients would arrive by car and as children were not dropped off and collected at the same time vehicle movements at the property would be staggered, and average parking times were not likely to exceed five minutes; reversing into or out of a driveway was not unusual; and roadside parking on Knights Hill occurred on a daily basis for drop-off and collection of children from local schools.
Having considered carefully the points made and evidence supplied by the applicants, on balance, a small Ofsted registered childminding business for up to six children would be a reasonable use of the property.
(3) Even a small childminding business, for which planning consent was not required, had to be registered with Ofsted and comply with various statutory requirements. That business use would be impeded by the 1937 restriction. The 1965 conveyance restricted use of the property to that of a private dwelling house only. Any use beyond that of a private dwelling house was therefore impeded by the restriction.
(4) Section 84(1)(B) required the tribunal to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area. The evidence of an email from the local planning authority was sufficient to demonstrate the view of the local authority that planning permission was not required for the proposed use to commence.
The tribunal was also required to take into account the period at which and context in which the restrictions were created or imposed and any other material circumstances. When the 1937 restriction was imposed, the lack of restriction on the business of “small-holder market gardener farmer or poultry farmer” was evidence of very different circumstances at Knights Hill. The 1965 restriction was imposed 57 years ago, on first sale of the property, and still had validity in its overall intention to retain residential use of the property on a residential street.
(5) In all the circumstances, the tribunal was satisfied that jurisdiction was made out under ground (aa) to modify the restrictions, where there were no identified persons entitled to the benefit of them and they impeded a reasonable use of the property for a registered childminding business. Should the applicants wish to grow their business beyond six children they would make a planning application to do so; and the scrutiny of that proposal by the local authority and any potential objectors would be sufficient that the tribunal did not need to limit the modification to permit only a smaller business.
Accordingly, the tribunal would direct that the restrictions in the Charges Register be modified under section 84(1)(aa) of the 1925 Act by entering after the words “No trade or business whatsoever” the words “with the exception of an Ofsted registered childminding business”.
Eileen O’Grady, barrister
