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

Ground (aa)25.Mrs Hodgson began by considering whether the covenant in its existing form impeded some reasonable use of the land, and specifically whether the use of the cabin for the beauty therapy business was a reasonable use of the land. Her reasons for believing that it was reasonable covered both economic and amenity issues.26.She said that the covenant took away a right to earn a living and bring in an income. She also explained that a medical condition prevented her from working elsewhere and the covenant impeded her ability to work from home. Unless it was modified she would be out of work and seeking state benefits. 27.Turning to amenity matters Mrs Hodgson said that the nature of the business was ‘very quiet and within (and below) the reasonable noise levels of a low level residential development’. She thought that if the cabin were be restricted to personal use it would be much noisier. The cabin could not be seen from the road outside the Property or from the objector’s windows/gardens and consequently it did not affect the aesthetics of the development. Similarly, the parking of clients’ cars in the road and on the pavement outside the Property was no different to any other household’s reasonable use in a residential area and helped relieve congestion in the local village in alignment with local council policies. Finally, as a sole trader Mrs Hodgson saw only one person at a time and footfall was consequently minimised and kept within the hours dictated by the planning permission. At the hearing Mrs Hodgson said that she was visited by between 2 and 5 clients a day and had 15 or so ‘core’ clients who visited every 3 to 4 weeks. 28.The applicants deny that the covenant secures any practical benefits of substantial value or advantage to the objectors. They noted that neither objector had adduced any evidence of diminution of value in relation to their houses and disagreed that noise levels are any higher than normal residential use. In this connection they noted the comments of the Deputy President, Martin Rodger QC in Martin v Lipton [2020] UKUT 8 (LC), (which concerned an application to modify a covenant preventing the development of a house in a garden):‘The restriction does not secure tranquility. Any one of the original houses on the estate might be occupied from time to time by an exceptionally boisterous family, or might become the home of a mute contemplative. The restriction does not protect, nor was it intended to protect, the occupants of the estate against the ordinary consequences of life in a low density residential neighbourhood’. 29.Mrs Hodgson explained that the parking of clients’ cars had caused a great degree of upset between the applicants and the first objector. I have been provided with details of incidents involving Mr Cook and Mrs Hodgson’s clients and in her witness statement Mrs Hodgson described the situation as follows:‘My neighbour uses the covenant to police all visiting people to my property. Friends, family, my children’s friends. Our home has become a prison.’30.Ultimately, the applicants sought redress through a Community Resolution which was issued by Humberside Police and compelled Mr Cook not to engage with Mrs Hodgson about her business or with her clients.31.The applicants disputed that parking on the road and pavement outside the Property causes loss of views and pointed out that there are no parking restrictions in Larkin Avenue. Nonetheless they ensure that clients only park in the road immediately outside the Property. At the hearing Mrs Hodgson was unable to say why she did not ask clients to park on her driveway or to use the communal visitor spaces on the estate. Mrs Hodgson noted that Larkin Avenue was at its widest point outside the Property.32.Mrs Hodgson noted the government’s advice about working from home during the pandemic and that the practice was now commonplace.33.The alternative limb of ground (aa) applies where the prevention of the proposed reasonable use is said to be contrary to the public interest. The applicants submitted that modification of the covenant would not be contrary to the public interest because it was supported by neighbours on the development, provided health benefits to the public and was aligned with working from home guidance issued by the government in connection with the spread of Covid-19. It was also said to be supportive of the local council’s strategy to promote out of town centre amenities. Finally, it was additionally a source of employment to Mrs Hodgson who would otherwise need to rely on unemployment allowances.Ground (b)34.The applicants submitted that the objectors had by their actions or omissions agreed to the modification of the covenant notwithstanding their formal objections. They believed this to be the position because when Mrs Hodgson handed Mr and Mrs Cook a leaflet regarding the proposed beauty business in April 2021, they expressed no concerns and congratulated her on moving her business to the cabin.35.The applicants also said that neither Mr Cook, Mrs Cook or Mr Holden objected to the change of use planning application in June 2021. This turned out not to be the case.36.Mrs Hodgson admitted in cross examination that there was no evidence to support her case under ground (b) and thereafter did not rely on it as a means of securing the modification.Ground (c)37.The applicants asserted that there had been no injury to any of the objectors from the operation of the business. They observed that there was no evidence of any diminution of value, none of the objectors had visited the site and there had been no complaints to the local council by either the objectors or any other resident on the estate.38.No expert evidence was provided by the applicants in support of their contentions.