[2023] UKUT 00185 (LC)

In his evidence Mr Naidu explains that he is a Senior Geomechanics Specialist and his wife is a Software Test Analyst, both working for organisations that allow work from home. They wish to vary the business restriction in order to be covered by the policies of their employers and to allow flexibility for future self-employment, operating their own businesses.

Modification is sought to limit the business restriction in the 1986 and 1989 transfers to purposes which require planning permission, as shown in bold below:

The objectors point out that they have not been made aware of the nature and scope of any planned business activity. They reiterate their statements from the previous application, that they have no objection to the applicants working from home, but fear that a modification of the covenant for unknown business purposes could allow present or future residents of the Property to carry on commercial activities which would cause access and parking issues for neighbours.

It is my view that by applying to modify the business restriction at the same time as applying to modify the building restriction, to allow a sizeable extension to be built, the applicants have created in the minds of the objectors the potential for more disruptive non-residential uses than may be intended. None-the-less, without detail of what business use is proposed, it is not possible to determine whether the proposed modification would have the adverse effects the objectors fear.

At the case management hearing, and in the directions that followed, I drew the attention of the parties to my decision in Johnson & Anor, An Application by [2022] UKUT 294 (LC), concerning modification of a business restriction for a defined business use which did not require planning permission but was impeded by the restriction. Mr and Mrs Johnson proposed to run a small childminding business, for which planning permission is not required for up to six children. They provided extensive evidence to allay concerns over the potential impact of additional car movements and parking in a residential area. The case provides an example of why a simple modification to allow uses which do not require planning permission could have significant results. It also provides an example of good practice by applicants who undertook to demonstrate how the purpose of the business restriction was not undermined by their proposal.

In this case the application is lacking any detail which might allow me to consider whether the statutory grounds are satisfied to modify the business restriction for a limited purpose. The application therefore fails. But the applicants are aware that the objectors make no objection to them continuing to work from home as they have been doing, whether for themselves or for an employer.

I am satisfied that ground (aa) is made out and that I have discretion to modify the building restriction, which impedes a reasonable use of the Property and does not secure to the persons entitled to the benefit of it any practical benefits of value or advantage.

The following order shall be made:

An order modifying the restriction shall be made by the Tribunal provided, within three months of the date of this decision, the applicants shall have signified their acceptance of the proposed modification of the restriction in the Charges Register of the Property.