Restrictive covenant – Discharge or modification – Section 84(1)(aa) and (c) of Law of Property Act 1925 – Covenants restricting use of field to grazing or arable farming – Applicants obtaining planning permission for equestrian manège – Applicants applying to remove restriction – Whether covenants securing practical benefits of substantial value or advantage – Application dismissed
The applicants were the freehold owners of Newpark Stables, a nine-acre field with stables for five horses which they acquired in early 2019. It was in an area of outstanding natural beauty (AONB) near the village of North Huish, South Hams, Devon. The nearest town was Totnes located about 5.5 miles to the northeast.
On 16 January 2020, the applicants obtained planning consent for the construction of a manège, associated landscaping, planting and an access way from the existing stables and parking area. The manège would enable the training and exercising of horses in a safe, all-weather environment.
The respondents were the registered freehold owners of Higher Norris Farm which was situated to the southeast of the applicants’ property. The farm benefited from a covenant, negotiated by the respondents when they purchased the farm in 2003, which restricted the use of the applicants’ field to the grazing of sheep and horses and to arable use of all types. It permitted the construction of stables on the far boundaries only.
The applicants applied to the Upper Tribunal 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 to permit the construction of the manège on the property in accordance with the planning consent, and to permit the parking of vehicles and use of the rest of the field for the exercising and training of horses.
Held: The application was dismissed.
(1) Section 84(1)(aa) was satisfied where it was shown that 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. By section 84(1A), in a case where condition (aa) was relied on, the tribunal might discharge or modify the restriction if it was satisfied that, in impeding the suggested use, the restriction either secured “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or that it was contrary to the public interest. The tribunal also had to be satisfied that money would provide adequate compensation for the loss or disadvantage (if any) which that person would suffer from the discharge or modification.
In determining whether the requirements of section 84(1A) were satisfied, and whether a restriction ought to be discharged or modified, the tribunal was required by section 84(1B) 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.
The tribunal might direct the payment of compensation to any person entitled to the benefit of the restriction to make up for any loss or disadvantage suffered by that person as a result of the discharge or modification, or to make up for any effect which the restriction had, when it was imposed, in reducing the consideration then received for the land affected by it. If the applicant agreed, the tribunal might also impose some additional restriction on the land at the same time as discharging the original restriction.
(2) It was agreed that the covenant secured practical benefits for the respondents by preventing the construction and use of the manège; that the proposed use of the field was reasonable; and that the proposed use would be impeded by the covenant unless it was modified. The issue was whether, in impeding the proposed use of the field for the construction of the manège, the covenant secured for the respondents some practical benefit of substantial value or advantage. The practical benefits claimed were preservation of views from the farm over the field, privacy, tranquillity and a sense of openness, light and space.
There was no doubt that a large, man-made structure and its associated landscaping would affect the respondents’ view. The skyline would be permanently altered and not for the better. Issues of privacy were more difficult to judge. There would be a loss of privacy but, if that were the only impact of the proposal, it would not be substantial or significant.
Tranquillity should not be equated solely with peacefulness. It encompassed a sense of calmness and an absence of activity, especially repetitive activity. The use of the manège would involve an increase in noise, from those riding, instructing or spectating and also from the horses themselves. The character of the setting would change from one which was wholly bucolic to one which was busier, more managed and less tranquil.
The degree to which the sense of openness, light and space would change was disputed. The degree to which the sense of openness would be truncated was subjective and should not be exaggerated, but the manège and associated works would alter the outlook and create a sense that the landscape was not in the current pastoral state characteristic of the area but featured an atypical equestrian structure.
(3) The purpose of the covenant was to give the respondents some degree of control over the activities that took place in the fields surrounding their home. They did not own the field and it was important to them to ensure that the attributes of the farm were preserved. The covenant provided confidence that those were not at risk.
The covenant was imposed in 2003 and the respondents were the original beneficiaries and it still achieved what it set out do. The fact that it continued to provide the benefit which the respondents themselves bargained for was a material circumstance to which the tribunal was entitled to have regard. The practical benefits the covenant secured were of substantial advantage and value and its modification would diminish the rural setting which underlay the identity of the farm. The consequences of that diminution for the value of the farm were not easy to assess, and its impact in strictly financial terms would depend on the strength of the market at the time of any sale. However, the preservation of the current rural setting, irrespective of fluctuations in market value, was of substantial advantage to the respondents.
Andrew Francis (instructed by Direct Access) appeared for the applicants; Kester Lees (instructed by Stephens Scown Solicitors, St Austell) appeared for the respondents.
Eileen O’Grady, barrister
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