Panashe Muskwe & Anor v Michelle Cochrane
[2023] UKUT 262 (LC)
Steven Stuart Johnson & Anor, An Application by
10 November 2022
[2022] UKUT 294 (LC)
Upper Tribunal
A family wanted to run a small childcare business from their home but had rules against it. Even though they didn't get official permission from the council first, a judge let them do it because it's a small business and unlikely to bother the neighbors.
Key Facts
- •Application to modify restrictive covenants at 44 Knights Hill, Aldridge, Walsall preventing business use and limiting use to a private dwellinghouse.
- •Applicants wish to operate an Ofsted-registered childminding business (up to six children).
- •No admitted objectors to the application.
- •Covenants date back to 1937 and 1965.
- •Applicants did not seek planning permission, believing it unnecessary for up to six children.
- •Tribunal conducted a site inspection.
Legal Principles
Tribunal can modify restrictive covenants under Section 84(1) of the Law of Property Act 1925 if continued existence impedes reasonable use of land for public or private purposes (ground (aa)) or if modification won't injure those entitled to the benefit (ground (c)).
Law of Property Act 1925, Section 84(1)
Under ground (aa), the Tribunal must consider whether the restriction secures no practical benefits of substantial value or advantage, or is contrary to the public interest.
Law of Property Act 1925, Section 84(1A)
When considering modification under section 84(1), the Tribunal must consider the development plan, planning permission patterns, the context and period of restriction creation, and other material circumstances.
Law of Property Act 1925, Section 84(1B)
Outcomes
Application granted. Restrictive covenants modified to permit an Ofsted-registered childminding business.
The Tribunal found the proposed use reasonable, considering the limited number of children, staggered drop-off/pick-up times, and the minimal impact on neighbours. The existing covenants impede this reasonable use.