Potential breach of covenant

The High Court considered in the case of Mills v Estate of Partridge and another [2020] whether the owner of land that benefited from a right of way over an adjoining property had breached a restrictive covenant that affected the land and a condition that also restricted a right of way.

The case concerned a site in Staffordshire that the Defendant had originally used as a plant nursery and for growing vegetables. The Defendant diversified the business carried out on the land, to include a tearoom and a shop selling plants and ornaments. The Defendant had a right of way over the Claimant’s property “for all purposes in connection with the use of the land conveyed as agricultural land only”. There was also a restrictive covenant on part of the Defendant’s land stating that they could only use the land for agricultural purposes. Over the years the use of the site had changed and included the hosting of events and car parking for the staff and visitors to the site.

The Claimant sought a declaration from the court that the use of the track for the expanded use was excessive and amounted to trespass and that the use was in breach of the restrictive covenant since it was no longer being used for “agricultural purposes only”.

Defining the agricultural purposes

The Defendant argued that it was still using the parts of the land for agricultural purposes and that overall, the use was agricultural since the shop sold agricultural products and the tearoom was ancillary to the main use.

The Court started by considering the definition of ‘agriculture’ in several statutes, including section 336 of the Town and Country Planning Act 1990 as …”horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.”

Verdict on the use of the land

The Court’s view was that although the meaning of agricultural land could develop, it could not be expanded so much to include activities that were clearly classed as non-agricultural. The Defendant’s argument that the overall use of the land remained agricultural, was not accepted. It was significant in this case that on the facts, the unrelated activity was not just incidental. In fact, the tearoom accounted for over 50% of the turnover of the business and was run independently of the nursery through a separate company.  

This case shows how important it is, prior to changing or expanding the use of a site, to consider any restrictive covenants that may affect the title to a property or be contained in a lease, as well as any limitations of any easements that the property enjoys, such as a right of way.

Here to help

if you have any more questions regarding the right of way on a property or if you would like further information on how we can help, please do not hesitate to contact a member of our real estate team on 0161 941 4000 or via email.