Steven Stuart Johnson & Anor, An Application by

Under Law of Property Act 1925, s.84(1)(aa), restrictive covenants may be modified where they impede a reasonable use of land and, in doing so, secure no practical benefits of substantial value or advantage to those entitled to their benefit. The Tribunal must assess reasonableness itself where no planning application has been made, while taking account of the local planning position and all material circumstances. A small Ofsted-registered childminding business may constitute a reasonable use of a residential property, even where it generates additional vehicle movements, if the practical effects are limited and manageable. The absence of identified beneficiaries makes the injury ground under s.84(1)(c) irrelevant.

Steven and Lisa Johnson applied under s.84 of the Law of Property Act 1925 to modify restrictive covenants affecting their detached house at 44 Knights Hill, Aldridge. The covenants prohibited trade or business and required use as a private dwellinghouse only. They proposed operating an Ofsted-registered childminding business, initially for up to six children.

Potential objections were struck out because the objectors could not establish entitlement to the benefit of the covenants. No other objections were made. The applicants had not obtained planning permission, and the Tribunal therefore had to decide for itself whether the proposed use was reasonable, whether the covenants impeded it, and whether the statutory requirements for modification were satisfied.

The application under s.84(1)(aa) of the Law of Property Act 1925 was granted, subject to the applicants accepting the proposed modification within three months.

1. Reasonableness of proposed use. In the absence of a planning application, the Tribunal had to determine whether the proposed childminding use was reasonable. It considered the location of the access on a bend near a junction, vehicle manoeuvres, available parking, traffic, noise and the likely effect on neighbouring occupiers. The proposed drop-off and collection arrangements would involve limited and staggered vehicle movements. Police evidence showed no history of relevant road collisions or significant dangerous parking. On balance, a small Ofsted-registered childminding business for up to six children was a reasonable use.
2. Impediment by the covenants. The 1937 restriction prohibited trade or business and therefore impeded the proposed business. The 1965 restriction required use as a private dwellinghouse only and impeded any use extending beyond that description.
3. Statutory conditions. There were no identified persons entitled to the benefit of the restrictions. Ground (c) was therefore irrelevant. The Tribunal was satisfied under ground (aa) that the restrictions impeded a reasonable private use. The public-interest limb did not require determination.
4. Material circumstances. The Tribunal considered the local authority’s view that planning permission was unnecessary, the development-plan context, and the age and circumstances of the covenants. It accepted that any future expansion requiring planning permission would receive scrutiny by the local planning authority and potential objectors.
5. The restrictions were modified to permit an Ofsted-registered childminding business alongside residential use. The order was conditional on the applicants signifying acceptance within three months.