Perseverance by the applicants and supplying evidence in support of their application to modify restrictive covenants to allow the use of their property as an Ofsted-registered childminding business succeeded in Application of Johnson and another; Re: 44 Knights Hill, Aldridge, Walsall [2022] UKUT 294 (LC); [2022] PLSCS 185.
The property was a detached two-storey house facing onto a residential street in Aldridge near Walsall with its access drive located on the outer edge of a bend in the road. A 1937 conveyance required the property not to be used for any trade or business and a 1965 conveyance restricted the use of the property to that of a private dwellinghouse only.
The application to the Upper Tribunal (Lands Chamber) was made under section 84(1) (aa) of the Law of Property Act 1925 where the continued existence of the restriction would impede a reasonable use of the land for public or private purposes or would do so unless modified. The tribunal can discharge or modify a restriction under (aa) if satisfied that it either secures no practical benefits of substantial value or advantage to those entitled to its benefit or it is contrary to the public interest. The Tribunal directed that publicity notices were served on potential beneficiaries in the neighbourhood but no such persons were identified.
The applicants did not require planning permission to run a childminding business of up to six children from the property, yet the tribunal invited the applicants to adjourn the application to obtain planning permission because in the absence of planning permission it was difficult for the tribunal to be satisfied that ground (aa) was made out. The applicants declined to do so and so it was for the tribunal to satisfy itself that the proposed use of the property was reasonable.
Following a site visit, the tribunal considered the property to be compromised for a business use involving cars by the location of its access on a bend in the road, close to a road junction. The tribunal informed the applicants of those concerns and invited them to choose between adjournment until planning permission was obtained or proceeding with the opportunity to put in further evidence. They chose the latter.
The applicants supplied a variety of evidence: from West Midlands police showing that from 2017 to 2020 no traffic collision had occurred on Knights Hill; establishing that not all potential parent clients would arrive by car and that, as children are not dropped off and collected at the same time vehicle movements at the property would be staggered, with average parking times not exceeding five minutes; that reversing into or out of a driveway was not unusual; and that roadside parking on Knights Hill occurred on a daily basis for drop-off and collection from local schools.
The tribunal commended the applicants’ research and concluded that the proposed use of the property would be a reasonable use which the restrictions, imposed in very different circumstances, would impede. The tribunal was satisfied that ground (aa) was made out and directed that the restrictions be modified to permit use as an Ofsted-registered childminding business.
Louise Clark is a property law consultant and mediator
