Discharge of restrictive covenants for childminding business

In a recent decision by the Upper Tribunal (Lands Chamber) Johnson, Re [2022]), it was ordered that two restrictive covenants that burdened a detached two-storey house be modified under section 84(1) of the Law of Property Act 1925, to allow it to be used as an Ofsted registered childminding business.

The title to Mr and Mrs Johnson’s house at 44 Knights Hill, Aldridge, Walsall was burdened by two restrictive covenants: one prevented use of the house for most trades and businesses and the other required it to be used as a private dwellinghouse only. The Johnsons applied to the Upper Tribunal requesting modification of both restrictions to allow it to be used for a childminding business. Despite service of publicity notices, it had not proved possible to identify the beneficiary of the covenants.

The local planning authority, Walsall Council, had advised Mr and Mrs Johnson that a childminding business with up to six children did not require planning permission. The Tribunal was therefore left to reach a conclusion on the reasonableness of the proposed use without the scrutiny of the planning process.

The house was inspected by the Upper Tribunal and it was concluded that:

• a small registered childminding business for up to six children would be a reasonable use of the house.
• the proposed use would be impeded by the restrictions.

It was ordered that both restrictive covenants be modified to allow an Ofsted registered childminding business (of any size). The Tribunal was satisfied that if the Johnsons decided to grow the business beyond six children, the planning process would provide sufficient scrutiny.

When considering an application to discharge or modify a restrictive covenant, the Upper Tribunal must take into account the grant or refusal of planning permission. This decision illustrates the position where a proposed change of use contravening restrictive covenants did not require planning consent which meant that the Tribunal could carry out its own investigation of the likely effect of the proposed use.

If you need any help or advice relating to any litigation or dispute matter please contact Johanne Spittle on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk.