[2023] UKUT 00248 (LC)

The application land has a trapezoidal area of about just over an acre, divided equally with plots 1 and 2 each extending to about 0.52 acres. Each plot has a continuous hedge frontage to Icklingham Road, and a rear boundary adjoining a school. Plot 1, at 17 Icklingham Road, to the south east (or, to the left when viewed from the road) adjoins number 15 - ‘Fair House’ formerly known as Druids Lodge. Plot 2 adjoins the private drive to Ms Surana’s property at 21, which sits behind ‘Breezes’ - a very large house of relatively recent construction. The application land is currently accessed from this drive.

So standing on Icklingham Road and looking from left to right (south to north), we have ‘Fair House’ (15), plot 1 (17), plot 2 (19) (both behind a hedge), then the drive servicing both Ms Surana’s house (21) and, for the moment at least, the application land, and finally ‘Breezes’, with Ms Surana’s house behind it.

Despite the original intention, the application land has not been used for recreation by residents of the Estate for more than 70 years. In 1952 it was sold by the Company to the owner ‘Druid’s Lodge’. The land was enclosed and used exclusively for the enjoyment of the owners of Druids Lodge, and who built a greenhouse on the land. In 1962 it was sold on to the owner of No.21, a Mr John Purefoy and from 1976 the Surana family.

While the other residents of the Estate were therefore unable in practice to exercise the rights of access to the application land for recreation given to them by the building scheme, nevertheless the conveyance repeated the same scheme of covenants as already bound the Estate, prohibiting development of the application land and restricting its use to communal recreation.

As outlined in Surana, there have been a number of historic departures from the scheme of covenants. In Re Voss’s Application LP/11/1973 (unreported), the Lands Tribunal granted a proposed modification on land further to the north on Icklingham Road, which was originally intended to form a link road into land to the west of the Estate. The land was sold by the Company to an adjoining owner subject to the full estate covenants, until the successful application to the Lands Tribunal to enable residential development.

Among the half-dozen further sales made by the Company, of most relevance is the sale of the ‘close’ opposite the application land. When sold, for the purposes of the schedule of restrictions that close was deemed a development plot. In the case of the application land, it was sold expressly on the basis that it was deemed to be a close. The schedule to the conveyance continues to permit access onto the application land by other residents of the Burhill Estate. In Surana (at [59]), the Tribunal considered this to be peripheral to the issue to be determined, and I take a similar view. I heard no submissions or evidence on the point, and express no view about it, save noting that in any event whether it is a negative covenant over which the 1925 Act gives the Tribunal jurisdiction is questionable.