Mrs Hodgson wished to continue to conduct a beauty therapy business from a cabin in her rear garden. Covenants affecting the property, developed by Redrow Homes Limited, provided: ‘no trade business or profession shall be carried out upon the plot and the plot shall not be used for any other purpose other than as one private dwelling’. In this blog we take a look at how the Upper Tribunal Lands Chamber dealt with the application.
On a site visit carried out by the Tribunal, the parties viewed the building where Mrs Hodgson conducted her beauty therapy business, This Is Me Beauty, which she had been doing since April 2021.
The Application
The Judgment records, at paragraph 10, that Mrs Hodgson had previously run her business from commercial premises in Cottingham Village Centre, but owing to trading uncertainty caused by the Covid-19 pandemic she decided to relocate to the cabin in April 2021, rather than using it for family purposes as originally intended.
This change of use required planning permission from residential to mixed use residential (C3) and a beauty salon (sui generis). That application was made on 22nd June 2021, and was therefore retrospective.
In support of the application, the Applicant relied on the planning officer report, recommending that permission be granted, concluding:
‘the private beauty business is considered to be acceptable in principle given the quiet nature of the use and the sustainable location of the site within the development limits of Cottingham. The detached outbuildings does not attract from the visual amenity of the area of the appearance of the existing property…and as such would not cause unacceptable degree of harm to the amenities of neighbouring properties or the area generally’.
Planning permission had been granted with conditions including operating times of 9:00-18:00 Monday to Saturday.
The objections
The objectors denied that the proposed use was reasonable and averred they had practical benefits of substantial value and advantage in upholding the prosperity, amenity and ethos of the estate and wider neighbourhood. Even on the applicant’s evidence, parking of her client's cars had caused a great degree of upset between the applicants and the first objector. Humberside Police had been involved, and the applicant had sought redress through Community Resolution.
Mrs Hodgson had also argued the application under ground (b), namely that there had been an agreement (by actions or omissions) to modify covenants. This was fiercely contested. Mrs Hodgson accepted in cross-examination that there was no evidence to support an agreement for modification.
One objector, Mr Cook, in evidence raised his concern as to the noise levels being greater than they had been prior the business commencing and made parking more difficult. He was concerned about the impact of the application on the value of his house but had not instructed an expert to value this. He said that he and his wife had lost privacy they once enjoyed.
Another, Mr Holden, said the estate was a congested and dense housing development, with narrow pavements and small front gardens with very limited parking and even access for emergency and utility vehicles was very tight. Clients of the beauty business might park for hours and obstruct safe passage for pedestrians and residents’ cars. He feared modification would set an undesirable precedent with potentially negative impact on the value and desirability of properties on the whole site.
Decision
The Tribunal member held that the planning consent obtained was for a use that was reasonable. Low level use of an existing building for a small scar business was generally consistent with a residential neighbourhood. The covenant was not intended to prevent owners from occasionally working from home, alone on a laptop in a spare room and that kind of activity was not in conflict with the covenant. Mrs Hodgson's business was now fully conducted from the cabin, and from nowhere else, and was therefore caught by the covenant.
The Tribunal member went on to consider the matter of whether the covenant secured a benefit to the objectors depended on the impact on amenity. The Judge found it was ‘probable that cars are parked outside for a significant portion of the day’.
Covenant only 10 years old
The Judge noted, at paragraph 57 of the judgment, that only 10 years have elapsed since the properties had been sold (and covenants put in place) and the applicant and objectors had all bought properties directly from the developer. The developer was offering purchasers an opportunity to buy in a controlled environment where the appearance of the estate would remain the same and nondomestic uses would be prohibited.
Commercial use would increase parking outside the property. Modification of the covenant removed the sense of certainty about what was and was not permitted in future.
At paragraph 61 of the judgment, the Judge held that the covenant protects aspects of the estate that should be maintained. It prevented activities which if left unchecked significantly impinged on the amenity of the development. It ensured the quiet enjoyment of the houses on the estate and underpinned their value and as such was a practical benefit of substantial value or advantage. As such, there was no jurisdiction to grant the modification.
Importantly, the Judge pointed out at paragraph 62 of the judgment that even had the conditions in ground (aa) been satisfied, they would have been reluctant to lift a restriction which the applicants themselves freely accepted less than 10 years ago, stating: ‘The more recently a restriction has been imposed the stronger the case from modification must be.’
Summary and conclusions
This case is an important reminder that planning permission alone will not be enough to secure a modification under section 84 of the LPA 1925 in the Upper Tribunal Lands Chamber. It seems here that the ‘thin end of the wedge’ point was made and given weight by the Judge. Notably, the relatively short period of time, 10 years, from when the covenants had been entered into, was a point which went against the applicants in this case.
The case: Hodgson v Cook [2023] UKUT 41 (LC)
Toby Walker and his team specialise in disputes over property, include applications to the UTLC. They act for both owners and developers as well as those seeking to uphold covenants in all stages from initial advice, negotiations, deeds of variation and litigation. Toby has written extensively on covenants and you may wish to check out here for an overview on covenants and what you may be able to do with them. Toby can be contacted by email or on 01494 893512.