In the case of Johnson the Applicants wanted to modify a covenant which prohibited trade or business contained within covenants dating back to 1937, and a further conveyance from 1965 that the property only be used for the purpose of a private dwelling house only.

This is the second in a series of Blogs where I attempt to summarise the latest decisions from the Upper Tribunal Land Chamber – the specialist court for applications to modify covenants affecting land under s84 Law of Property Act 1925 (the Act).

The decision in Johnson is dated 10th November 2022 and was made by Tribunal Judge Diane Martin MRICS FAAV, without a hearing and on written presentations only.

The property at 44 Knights Hill, Aldridge, Walsall was a detached two-storey house facing onto the residential Street of Knights Hill in the town of Aldridge. No application for planning permission had been made, on the basis the Applicant said none was required for such business of childcare for up to 6 children (but would be required if there were to be more children at the business).

Objections to the application were received from at least two neighbours, but these were struck out owing to an absence of documentary evidence of entitlement to the benefits of the covenants.

Prior to the hearing the Tribunal member encouraged the Applicants to apply for planning permission to assist with the question of reasonable use, but the Applicants were content to rely on the evidence they had obtained. They had also raised a concern in relation to traffic and vehicles coming and going from the application property.

The Applicants were able to supply, via a Freedom of Information Act to West Midlands Police, statistics showing that from 2017 through to 2021 there were no road traffic collisions on Knights Hill. They also supplied evidence from Walsall Families Information Service stating the number of registered childminders had also been steadily declining and expressing a desire to reverse the trend.

The Tribunal member considered the written evidence in the absence of any permissible objections, and was satisfied that the proposed use was reasonable. The Tribunal member was satisfied that should the applicants wish the business to grow beyond 6 children, they would make a planning application which would be the subject of scrutiny by Walsall Council and any potential objectors would be able to engage with that process.

The covenant restricting ‘no trade or business whatsoever’ was to be modified by entering the following words ‘with the exception of an OFSTED registered childminding business’. The restriction to a ‘private dwellinghouse only’ was also suitably modified.

SUMMARY: Planning permission is not the be all and end all of applications to modify covenants before the Upper Tribunal Lands Chamber. The Applicants in this case were able to provide evidence which satisfied the Tribunal as to reasonableness of the proposed use of the land. The case is also another cautionary tale, for anyone objecting to such an application, about the need to provide documentary evidence to show one has the benefit of the covenant.

Case number UTLC LC-2021-520

You can find decisions from the UTLC here.

For more information about Restrictive Covenants affecting land, see our blog here.

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.