The more recently a restriction has been imposed, the stronger the case for modification must be.
In Hodgson and another v Cook and others [2023] UKUT 41 (LC), the Upper Tribunal (Lands Chamber) refused to modify a covenant preventing any trade or business from being carried out on the land.
The case concerned a property on a modern residential estate in Cottingham, East Yorkshire, owned by the applicants, who in 2021 obtained planning permission to use a cabin in their rear garden for a beauty therapy business run by the second applicant. The transfer of the property to the applicants in November 2013 contained a restrictive covenant that no trade business or profession should be carried out on the property, which should be used only as one private dwelling.
The applicants sought modification of the covenant, personal to them, to permit use of the cabin in accordance with the planning permission under section 84(1)(aa) and (c) of the Law of Property Act 1925, arguing that the use of the cabin would be less noisy than if used for personal use, that it did not affect the aesthetics of the development and that parking in the road was no different to any other household’s reasonable use in the area. Their neighbours objected.
The tribunal decided that the use permitted by the planning permission was a reasonable use. The covenant was not intended to prevent owners from occasionally working from home in connection with a business which is mainly carried on elsewhere, but since the second applicant worked solely from the cabin in the rear garden then such use was impeded by the covenant.
The tribunal accepted that the low level of noise generated by the business and any noise on the driveway or in the road was likely to be minimal and not intrusive. However, only 10 years had elapsed since the properties were sold and the covenant imposed, and all parties had signed up to it.
Its purpose was to secure effective estate management by restricting changes to the use and appearance of the properties and to bind all owners indefinitely. Modification of the covenant would remove the sense of certainty about what would be permitted in the future and raise concerns about the loss of amenity which might follow. This was a practical benefit of substantial value or advantage.
The statutory requirements were not satisfied and the tribunal had no jurisdiction to grant the modification.
Louise Clark is a property law consultant and mediator
