Neighbours defeat application to modify restrictive covenant on agricultural land

Collins & anor v Howell & anor ([2022] UKUT 72 (LC)

It is often said that ‘there is no right to a view’. A well-drafted restrictive covenant may, however, protect the setting and amenity of a property preventing development as illustrated by the decision of the Upper Tribunal in the case of Collins & anor v Howell & anor ([2022] UKUT 72 (LC) which concerned an application to modify a restrictive covenant limiting the use of agricultural land.

The beneficiaries of the restriction successfully argued that the proposed development would be a substantial imposition on the landscape and diminish the rural setting which underlies the identity of their land.

Facts

Mr & Mrs Collins, own the land subject to the restrictive covenant, a freehold interest in Newpark Stables comprising a nine-acre field and stables situated in an Area of Outstanding Natural Beauty in Devon. Mr & Mrs Howell own the adjacent Higher Norris Farm (the Farm) which benefits from the restriction.

Historically, the site which became Newpark Stables and the Farm were owned by the Dawes family and used mainly for the grazing of sheep. In September 2003, the farmhouse and 16 acres of land on the site were carved out and sold to Mr & Mrs Howell.

Included in the transfer to Mr & Mrs Howell was a restrictive covenant benefitting the Farm (the Covenant) which restricted the use of the retained land by prohibiting its use for any purpose other than “the grazing of sheep and horses and arable use of all types and the production of grass cutting” and expressly prevented the construction of “any buildings other than stables on the far boundaries only”.

Newpark Stables was bought by Mr & Mrs Collins in 2019 with the benefit of planning permission granted in 2011 for equestrian use of the field and stables. In January 2020, Mr & Mrs Collins obtained planning permission to construct an equestrian manège with associated landscaping, accessway and parking on their property. To enable construction to proceed, they applied for the modification of the restrictions imposed by the Covenant on grounds (aa) and (c) of section 84(1) of the Law of Property Act 1925 but abandoned ground (c) (that the modification would not injure the persons entitle to it) at the hearing.

To succeed on ground (aa), the Tribunal had to be satisfied that:

1. the continued existence of the restriction would impede some reasonable use of the land for public or private purposes or that it would do so unless modified;
2. in impeding the suggested use, the restriction either secures “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or that it is contrary to the public interest: and
3. money will provide adequate compensation for the loss or disadvantage (if any) which that person will suffer from the discharge or modification.

When considering the above, the Tribunal was required to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the area, as well as “the period at which and context in which the restriction was created or imposed and any other material circumstances”.

Mr & Mrs Howells contended that the purpose of the Covenant was to preserve the rural and entirely agricultural identity and character of the Farm and its surroundings. They objected to the spoiling of views from their house and garden, damage to the overall amenity and character of the Farm, intrusion from noise and an adverse impact on privacy.

It was common ground between the parties that construction of the manège would:

• breach the Covenant;
• that the Covenant secures practical benefits for the Farm by preventing the construction and use of the manège;
• that the proposed use of the field at Newpark Stables is reasonable; and
• that the proposed use would be impeded by the Covenant unless modified.

The issue

The issue before the Tribunal was whether, in impeding the proposed use of the field for the construction of the manège and its use, the Covenant secured for Mr & Mrs Howells some “practical benefit of substantial value or advantage”.

The outcome

In finding against Mr & Mrs Collins, the Tribunal’s determined that:

• the purpose of the Covenant was to give owners of the Farm some degree of control over the activities that took place in the fields surrounding their home;
• the practical benefits secured by the restriction are preservation of the views from the Farm over the field, privacy, tranquillity and a sense of openness, light and space;
• the manège would significantly alter the landscape in the immediate vicinity of the Farm by creating a feature in plain sight that would be obviously man-made;
• the intended planting and screening would not be sufficient to hide the manège entirely;
• the practical benefits the Covenant secures are of substantial advantage and value and that its modification would diminish the rural setting which underlies the identity of the Farm; and
• the preservation of the current rural setting, irrespective of fluctuations in market value, is of substantial advantage to Mr & Mrs Howells.

Conclusion

This case shows that developers can face an uphill struggle when it comes to developing land designated for agricultural use protected by a restrictive covenant. Each case is decided on its facts and an investigation of the particular circumstances is required to determine the likelihood of success of seeking modification of such restrictions. For more advice on this topic, please contact a member of our team.