https://landschamber.decisions.tribunals.gov.uk/Aspx/view.aspx?id=1992
With the government’s promise to amend planning regulations to speed up the building of new housing, there will be renewed interest among farmers and landowners in exploring whether they have suitable land for development. However, what cannot be overlooked is the possibility that the land may be subject to a restrictive covenant which imposes constraints on what the land can, and cannot, be used for. The importance of restrictive covenants was explored in a recent case before the Upper Tribunal (Lands Chamber), Robertson v Pace [2024] UKUT 123 (LC). In this case, the applicant, Mr Robertson applied to discharge a covenant that restricted the use of part of his land to agricultural purposes only. His neighbouring landowners, Mr & Mrs Pace objected to his application.
Background
The land in question (on the Kent coast between Sandwich and Ramsgate) was mostly used for arable farming and was subject to a restrictive covenant that stopped it from being used for any purpose other than agricultural. The reason Mr Robertson gave for wishing to remove it was the desire to ‘keep his options open’. He acknowledged that the value of the land may well increase depending on what he did with it – and he also acknowledged that any development may impact his neighbours’ land. This was rather a vague premise on which to base his argument and Mr & Mrs Pace were quick to point out that, under grounds a) and c) of the Law of Property Act 1925 (the ‘Act’), Mr Robertson failed to show that the covenant was no longer useful and that their land would not be impacted by the removal of the covenant.
Law of Property Act 1925
The two grounds laid out in the Act that enable the Upper Tribunal to discharge (either wholly or partially) or modify a restrictive covenant are (broadly) set out as follows:
- Ground (a) states that there must be a change in the character of the property or the neighbourhood (or other circumstances the Upper Tribunal deems material) that renders the covenant obsolete.
- Ground (c) provides that the proposed lifting of the restriction will not injure others entitled to the benefit of the restriction (such a neighbouring landowner).
Upper Tribunal’s findings
One of the arguments deployed by Mr Robertson was that the covenant had been required as a condition of planning permission granted for the construction of a tannery and wastewater treatment works (neither of which were ever built) on adjacent industrial land. Restricting the surrounding land to agricultural use reduced the risk of any potential odour from the proposed works being a problem. His argument that this precaution was no longer necessary as the proposed development never materialised was rejected by the Tribunal which concluded that there was ‘no reason to infer that it [the restriction] was intended only to meet a short-term objective…the prospect of building something else, perhaps with the possibility of unpleasant emissions, remains.’
Following a site visit, the Upper Tribunal found that nothing in connection with either Mr Robertson’s land or the neighbouring land has changed to the extent that the original purpose of this covenant can no longer be fulfilled. The covenant therefore retained its original utility, and its purpose remained capable of fulfilment. Ground (a) could not be used to discharge the restrictive covenant.
The Upper Tribunal also refused to approve the application pursuant to Ground (c). It decided that discharging the restrictive covenant could ‘injure’ Mr & Mrs Pace in that the ‘continued agricultural use of the application land would be compatible with an unneighbourly use on the retained land’ (i.e. the partially developed industrial site on which a sewage works and bio-digester are currently located).
Comment
The case is a useful summary for how the Tribunal should deal with applications pursuant to Ground (a) to discharge and/or modify restrictive covenants. Landowners with land subject to restrictive covenants, or those who have the benefit of restrictive covenants, should consider the summary prior to proceeding under Ground (a).
The case highlights that the Tribunal may require the planning history of an area to determine whether it will discharge or modify a restrictive covenant impacting land. Research into the local area is advisable and utilising the local councils’ online planning portals will help with such a task. In some instances, the history for older planning applications may not be available online and enquiries will have to be made with the relevant department to obtain hard copies. Obtaining this information at an early stage can allow parties to prepare thorough submissions ahead of making an application.
