Application to modify restrictive covenant on agricultural land unsuccessful despite grant of planning permission

In a recent case before the Upper Tribunal (Lands Chamber), Collins and another v Howell and another [2022], the Tribunal was asked by Mr and Mrs Collins to modify a restrictive covenant to permit the construction of a manège on their land at Newpark Stables in accordance with a planning consent that had been obtained.

Mr and Mrs Howell own the adjacent Higher Norris Farm which benefits from a restrictive covenant prohibiting use of the Collins’ land 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”.

Mr and Mrs Collins bought Newpark Stables 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. They applied for the modification of the restrictions under section 84(1) of the Law of Property Act 1925.

For Mr and Mrs Collins to succeed the Tribunal had to be satisfied that the continued existence of the restriction would impede some reasonable use of the land for public or private purposes; that the restriction had “no practical benefits of substantial value or advantage” to the Howells (whose land had the benefit of the covenant) or that the restriction was contrary to the public interest and that money would not provide adequate compensation for the loss or disadvantage which the Howells person would suffer if the modification were made.

Mr and Mrs Howells objected to the application saying that the purpose of the covenant was to preserve the rural and entirely agricultural identity and character of their farm.  Mr Howell said that “on sunny evenings from autumn through to the spring the couple liked to relax in the conservatory and enjoy the views to the west. The imposition of the ménage on a largely natural and empty landscape would detrimentally and dramatically alter the view severely impacting their enjoyment. They were also concerned about noise and privacy.

The Tribunal determined that the purpose of the Covenant was to give the owners of the Farm some degree of control over the activities that took place in the fields surrounding their home. 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 and the intended planting and screening would not be sufficient to hide the manège entirely. It was determined that the practical benefits that the Covenant secured were of substantial advantage and value and its modification would diminish the rural setting which underlies the identity of the Farm. The grounds of the application were not satisfied and the Tribunal found against Mr and Mrs Collins.

Comment

A well-drafted restrictive covenant can protect the setting and amenity and whilst each case is decided on its facts landowners can face an uphill struggle when it comes to developing land that is subject to a covenant restricting use to agricultural use only.

For more information or any other litigation issue, contact Johanne Spittle on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email Johanne.spittle@warekay.co.uk.