YRPS Insight: Edition Eight - Flipbook - Page 16
DIVERSIFICATION AND
THE RESTRICTIONS
Rural land is often limited in use by agricultural covenants and easements which can impact the opportunity for
diversification. Whilst activities that are incidental or ancillary to agricultural use will not usually fall foul of
a restrictive covenant, caution should be exercised where use exceeds that for which it was intended.
Kathryn Boyd, Solicitor at Muckle LLP, explains more.
In the recent High Court case of Mills v Estate of Partridge and another [2020], the defendant owned land which they
used for a small plant nursery business and over which there existed a covenant in favour of the claimant, restricting the
use of the land to agricultural only. Additionally, the land was accessed via a track owned by the claimant, over which the
defendant had an easement ‘to pass and repass at all times for all purposes in connection with the use of the land conveyed
as agricultural land only’. After several years, the defendant diversified their nursery business to incorporate polytunnels,
stables, a shop and tearoom.
The claimant argued that the defendant’s use of the track (including use by their customers) was trespass, as it exceeded
agricultural use. Additionally, the use of the land for the shop, stables and tearoom did not comply with the terms of the
restrictive covenant. The defendant claimed that her activities were incidental to agricultural use and were ancillary to
her nursery expansion.
The court ruled in favour of the claimant, determining that while agriculture develops, the meaning of covenants and
easements relating to agriculture may also develop, but this should not be confused with diversification into nonagricultural activities. The matter is one of degree, and whilst the nursery was considered to be within the definition
of agriculture, the extensive commercial enterprise was not.
The case highlights the need to consider the limitations of easements and covenants on plans to expand and diversify.
Easements cannot be enlarged or exceed that which was granted or acquired. For example, a right of access for agricultural
use only, will not extend to incorporate use as part of a new residential development. In practice, consideration should be
given to the original purpose of the covenant or easement and the definition of agriculture at the time of grant.
In a 2019 case, the claimant sought an injunction and damages from the court, claiming that the development of a wind
farm interfered with their sporting rights. In sporting agreements, the grantor is bound by an implied term that they will
not take any action to limit or restrict the sporting rights. As such, proper regard should be given to any existing rights over
land when considering diversification.
Breaching the terms of a restrictive covenant or easement may result in an injunction and a claim for damages from the
beneficiary or owner of the servient land. It is possible to have restrictions removed and easements varied but the process
is often costly, time consuming, and does not guarantee success. Advice should always be sought before proceeding with
any change of use which might breach the terms of any existing covenants or easements.
For further information and advice, please contact:
Kathryn Boyd
kathryn.boyd@muckle-llp.com
www.muckle-llp.com
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