Case No. UKUT-41-(LC)-UTLC-Case-Numbers:-LC-2022-180

53.As far as ground (aa) is concerned, it seems to me the use for which planning consent has been obtained can properly be described as reasonable. Low level use of an existing building in connection with a small scale business is generally consistent with a residential neighbourhood.54.In my view the covenant was not intended to prevent owners from occasionally working from home, alone on a laptop in a spare room. I do not regard such activity as being in conflict with the covenant and for that matter, it does not in my view, offend the second limb of the covenant that the plot should not be used for any other purpose that as one private dwelling. A covenant against carrying on a trade, business or profession in a residential property does not prohibit all activity with a commercial purpose and tasks which are consistent with ordinary residential use which are undertaken in connection with a business which is mainly carried on elsewhere are unlikely to be a breach. It is not necessary to decide where the dividing line should be drawn between conducting a business from home and occasionally working from home, because in this case there is no doubt that the whole of Mrs Hodgson’s business is now conducted from the cabin in her garden, and from nowhere else. It follows that her continued use of the cabin for that purpose is impeded by the covenant.55.Whether the effect of the covenant in preventing the use of the property for Mrs Hodgson’s business secures a benefit for the objectors depends on the impact that use has on amenity. It is on that issue that the differences between the parties are most stark. The applicants regard the noise generated by the business as being unobtrusive and the parking of cars outside the Property as being nothing out of the ordinary in a residential estate. Mr Cook on the other hand bemoaned a loss of privacy and became vexed by the traffic and parking arising from the business. Given the level of aggravation and animosity that this latter aspect of the dispute provoked, it was surprising that the applicants did not request that their clients park on the driveway of their property since there was ample room. Similarly, it appears that no attempt was made to use the visitor spaces on the estate. Evidence adduced by the applicants which showed Mr Cook’s interactions with Mrs Hodgson’s clients also clearly demonstrated that their cars were parked on the road and pavements outside her house. Mrs Hodgson said in her evidence that she might have 3 or 4 clients a day and that she operates on 6 days a week. It seems to me unlikely that many clients would walk to the Property given its location on the very edge of the village. This makes it probable that cars are parked outside for a significant proportion of the day. I accept what Mrs Hodgson says about the low level of noise generated by the business and any noise on the driveway or in the road is likely to be minimal and not intrusive.56.In granting planning consent for the change of use the planning officer carried out a thorough appraisal of the amenity issues and concluded that any loss of amenity arising from the application would be acceptable. In my view that was a reasonable conclusion from a planning perspective. However, he anticipated that clients’ cars would be parked on the driveway of the Property and not in the road or on the pavements.57.Nevertheless, the application before the Tribunal is not solely concerned with the planning matters at the Property itself and its immediate environs. Only 10 years have elapsed since the properties were sold and both the applicants and the objectors were aware of them when they purchased. Not only were they in the transfer document, and so should have been pointed out by conveyancing solicitors, but both Mr Cook and Mr Holden confirmed that the developer brought the covenants to the attention of the original purchasers and explained their purpose. The applicants and objectors all bought their properties directly from the developer. The purpose of the covenants appears to have been to secure effective estate management by restricting changes to the use and appearance of the properties. The developer’s motives may have been to control what could be done to the houses whilst the development was ongoing thereby avoiding anything that might harm the value of the homes yet to be completed, but the restrictions were also intended to have permanent effect and to bind all owners indefinitely. 58.In my judgement the developer was offering purchasers an opportunity to buy in to a controlled environment where the appearance of the estate would remain the same and non-domestic uses would be prohibited. Commercial uses that generate the level of parking seen outside the Property over a significant portion of the day and over nearly every day of the week are prohibited by the covenant, whether they would be acceptable in planning terms or not. The covenant similarly prohibits commercial uses whether the noise or pollution they cause is below a threshold which is minimal, as I have found in this case.59.Estates such as the one that Larkin Avenue forms part of are not designed with those using part or all of their property for business purposes in mind. The density of development is such that any noisy or unsightly use of one property is likely to have an impact on the enjoyment of their homes by a number of its neighbours. It would be easy to envisage the loss of amenity that would occur if a resident decided for instance, to run a car valeting business at his house, or use it as a guest house. In preventing such uses, the covenant provides a benefit to all the owners whether it’s from the perspective of their wellbeing or from a monetary point of view. 60.Modification of the covenant in this application would remove the sense of certainty about what might be permitted in future and raise concerns about the loss of amenity that might follow. More importantly, those concerns would be justified, because every house on the estate has the potential to be used for business purposes of one sort or another and if Mrs Hodgson’s business were to be permitted, it would be difficult to justify enforcement of the restrictions against other residents. The covenant ensures that characteristics that make Larkin Avenue a pleasant place to live are preserved. This dispute and the arguments over parking demonstrate just how easily the state of equilibrium can be disturbed and how important the proper functioning of the covenant is to those who live in the development. It is likely in a development of this size that others would aspire to use their homes for similar businesses and the covenant provides a high degree of protection for neighbours.61.It is my judgement that the covenant protects aspects of the estate that should be maintained. It prevents activities that would, if left unchecked, significantly impinge on the amenity of the development and is the sole means by which this protection can be secured. It ensures the quiet enjoyment of the houses on the estate and underpins their value. I regard this as a practical benefit of substantial value or advantage. The requirements of section 84(1)(aa) are in my view not satisfied and I therefore have no jurisdiction to grant the modification.62.Even if I had come to the opposite conclusion on whether the ground (aa) conditions were satisfied, I would have been very reluctant to lift a restriction which the applicants themselves freely accepted less than ten years ago. The more recently a restriction has been imposed the stronger the case for modification must be.63.For completeness I will also deal with the alternative limb of ground (aa). I agree with Mr Shipley’s submission that in general terms it is in the public interest that property rights should be upheld. Mrs Hodgson’s contention that it is in the public interest that she continues to provide services to the public and does not become a drain on the public purse is well intentioned but ultimately misconceived. It is no doubt generally in the public interest that businesses such as Mrs Hodgson’s be carried on, and that employment opportunities are available for people who might otherwise find it difficult to work. But the statutory question is whether this covenant is contrary to the public interest by preventing Mrs Hodgson carrying on her business from this Property. It would require some significant public benefit to outweigh the public interest in maintaining covenants recently and freely entered into for the benefit of all the owners of homes on a new residential estate. My conclusion is that the applicants have not made out their case on this ground.64.The same can be said for their case under ground (c). Having determined that the covenant confers practical benefits of substantial value on the objectors, it would be contradictory to conclude that they would not be injured by its modification.65.As for ground (b), Mrs Hodgson did not press this aspect of the case and acknowledged in cross examination that there was no evidence that her neighbours had consented to her business being run from the Property. Even if they did not immediately confront her when they were first informed of her intentions, their reticence could not be mistaken for acquiescence or consent and they made their objections known in the context of this application.66.There is no need for me to consider whether the applicants were in “cynical” breach of the covenant. There is no doubt they were in breach and have remained so throughout the continuance of the application. But this case involves no opportunism or secrecy and the applicants are private individuals making use of their own home to make a living, not large scale property developers intent on a substantial profit. Cases of this sort can be determined without adding unnecessary insult to the ample disappointment which the dismissal of the application will cause. Mr Mark Higgin FRICSMemberUpper Tribunal (Lands Chamber) 8 February 2023