Johnson & Anor, An Application by (RESTRICTIVE COVENANT - MODIFICATION)

Factual and Procedural Background

This opinion concerns an application by the Applicants to modify restrictive covenants affecting a residential property located at 44 Knights Hill, Aldridge, Walsall ("the Property"). The covenants, originating from conveyances dated 1937 and 1965, restrict the Property's use to a private dwellinghouse and prohibit trade or business activities. The Applicants seek to operate an Ofsted registered childminding business at the Property.

The Property is a detached two-storey house positioned on a bend near the junction of Knights Hill and Erdington Road. The Applicants submitted their application in October 2021. Publicity notices were issued to potential beneficiaries of the restrictions, but no valid objections were sustained due to lack of entitlement evidence. The Applicants did not apply for planning permission, believing none was required for a childminding business of up to six children. The Tribunal invited them to adjourn until planning permission was obtained, but they declined and submitted further written evidence instead.

A site inspection was conducted by the Tribunal member, who identified potential issues relating to vehicle movements, parking limitations, and the Property’s location. The Tribunal communicated these concerns to the Applicants and invited them to either adjourn or proceed to a decision, with the Applicants opting for the latter.

Legal Issues Presented

1. Whether the proposed use of the Property as an Ofsted registered childminding business is a reasonable use for the purposes of modifying restrictive covenants under section 84(1)(aa) and (c) of the Law of Property Act 1925.
2. Whether the existing restrictive covenants impede the proposed use.
3. Whether modification of the restrictive covenants is appropriate in the absence of identified persons entitled to enforce the restrictions.

Arguments of the Parties

Applicants' Arguments

• The proposed childminding business would be predominantly internal to the dwelling, compliant with all legislative requirements, and produce minimal additional traffic and noise.
• The Applicants have significant experience in education and intend to start with one or two children, potentially increasing to six without requiring planning permission, and possibly nine with planning permission.
• They rely on an email from the local planning authority indicating no planning permission is required for a childminding business accommodating up to six children.
• They argue that the restrictions impede their reasonable use of the Property by prohibiting business use.
• Regarding vehicle movements, they submit that drop-off and collection times would be staggered, with some parents arriving by bus or on foot, minimizing traffic impact.
• The Applicants contend that reversing into and out of the driveway is common and not problematic, supported by police statistics showing no significant traffic incidents in the area.
• They provide evidence that the driveway is sufficiently long to accommodate multiple vehicles and that roadside parking is regularly used during school times without issue.
• They highlight a decline in registered childminders locally and submit that their business would be in the public interest.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal assessed whether the proposed use was reasonable in the absence of planning permission and the usual scrutiny by the local planning authority. The Tribunal observed that the Property's location on a bend near a junction imposes some limitations on vehicle movements and parking.

However, the Tribunal gave weight to the Applicants' evidence that drop-off and collection times would be staggered and that not all parents would arrive by car. The Tribunal also considered the police statistics indicating a low incidence of traffic hazards in the vicinity, and the Applicants’ photographs demonstrating adequate driveway parking.

The Tribunal acknowledged that some reversing manoeuvres would be required but found this to be a common situation in residential areas. Balancing these factors, the Tribunal concluded that operating a small Ofsted registered childminding business for up to six children would constitute a reasonable use of the Property.

The Tribunal found that the restrictive covenants, which prohibit trade or business and restrict use to a private dwellinghouse, do impede the proposed use. Since there were no identified persons entitled to enforce the restrictions, the Tribunal focused on whether the restrictions impeded a reasonable use of the Property.

On the issue of public interest, the Tribunal noted the Applicants’ submission but did not consider it determinative for this application. The Tribunal also took into account the development plan and local planning authority’s position that planning permission was not required for the proposed use.

Considering the age and context of the restrictions, the Tribunal recognized that the 1937 covenant’s exemption for certain agricultural businesses reflected different historical circumstances, while the 1965 restriction aimed to preserve residential use.

Holding and Implications

The Tribunal GRANTED the application to modify the restrictive covenants under section 84(1)(aa) of the Law of Property Act 1925.

The modification permits the operation of an Ofsted registered childminding business at the Property, subject to the Applicants’ acceptance of the modification within three months. The modifications include inserting a qualification to the prohibition on trade or business to except the childminding business and amending the covenant restricting use to a private dwellinghouse to allow this business use.

The Tribunal emphasized that should the Applicants seek to expand beyond six children, planning permission would be required and subject to local authority scrutiny and potential objections.

No new legal precedent was established; the decision directly affects the Property and the Applicants’ permitted use.