The Upper Tribunal (Lands Chamber) has refused to modify a restrictive covenant under section 84 of the Law of Property Act 1925 because the preservation of views, privacy, tranquillity and a sense of openness, light and space were practical benefits of substantial value or advantage to the objectors in Collins and another v Howell and another [2022] UKUT 72 (LC); [2022] PLSCS 48.
The applicants were the owners of Newpark Stables, a nine-acre field with stables situated in the South Hams area of Devon in an area of outstanding natural beauty. The respondents were the owners of Higher Norris Farm immediately to the south-east of the applicants’ property. When they acquired the farm in 2003 the respondents negotiated a covenant with the then owner of the applicants’ land which restricted the use of the field to the grazing of sheep and horses and to arable use of all types. Buildings were prohibited save for stables, on the far boundaries.
The applicants had obtained planning permission to construct a manège for the training and exercising of horses in a safe, all-weather environment together with an access way and associated landscaping and planting. The topography of the area was such that the site of the manège was six metres higher than the respondents’ land and if the construction were permitted, it would be a further three metres higher. The general orientation of the farm was away from the applicants’ land, but the garden, windows to the kitchen, dining and utility rooms and a conservatory adjoining the master bedroom looked over the applicants’ field.
By the date of the hearing, it was agreed that the covenant secured practical benefits to the respondents by preventing the proposed use and that such use would be impeded by the covenant unless it was modified. The respondents also agreed that the proposed use of the field was reasonable. So, the question for the UT was whether the covenant secured the respondents “some practical benefit of substantial value or advantage”.
The UT was in no doubt that the manège would significantly alter the landscape by creating a feature in plain sight which was obviously man-made. The intended planting and screening were unlikely to hide it entirely and would take time to mature. The skyline from the farm would be permanently altered and not for the better. While there would be a loss of privacy as riders in the proposed manège would overlook more often than those grazing animals, this would not be substantial. However, the use of the manège would involve an increase in noise from riders, instructors or spectators as well as from the horses themselves. The character of the setting would change from the current wholly bucolic one to one which is busier, more managed and less tranquil.
The purpose of the covenant was to give the respondents, the original beneficiaries, a degree of control over the activities in the fields surrounding their home and it continued to provide the benefit which they bargained for. The UT inclined towards the respondents’ expert’s view that the impact of modifying the covenant would be 7-10% of the value of the farm.
Louise Clark is a property law consultant and mediator
