[2023] UKUT 00248 (LC)

In the following paragraphs I outline the lie of the land, in the most part taken with gratitude from the Tribunal’s decision in Surana.

Icklingham Road runs in a south-easterly direction between the A307 Portsmouth Road and Leigh Hill Road in Cobham. It is a straight private road, about half a mile long, gated at each end, and is referred to in the relevant conveyances as Fairmile Section One but is known locally simply as the Fairmile Estate (‘the Estate’). The Estate now includes many residential plots on each of which has been built a single substantial detached house. It is one of a number of sub-estates within the larger Burhill Estate, which was laid out and made subject to schemes of mutual covenants by its original owner, the Burhill Estate Company Limited (‘the Company’), between 1934 and 1952.

Between 1934 and 1939 the Company made up Icklingham Road and then sold off vacant building plots on either side of the road. The original conveyances of the building plots annexed an identical schedule containing detailed provisions identifying the use to which land on the Estate would be put, and conferring rights and imposing restrictions on different areas to facilitate and protect the intended uses. The restrictive covenants imposed by the schedule were expressly referred to in the conveyances as a building scheme.

The schedule to the conveyances defined three categories of land: ‘development areas’, ‘greenways’, and ‘closes’ which, together with the roads, were represented on the coloured estate plan annexed to each conveyance.

The development areas were sold off in individual plots to purchasers who were required to build a single house in accordance with plans approved by the Company. Alterations required the Company’s consent, and the houses could be occupied only for private residential or professional purposes. Each owner was under a positive obligation to plant and thereafter to maintain hedges along specified boundaries of their plot.

The houses on the Estate are set back from their road frontages behind the now mature boundary hedges. They are of varying styles, materials and sizes, with those of more recent construction generally being much larger than the older properties. In Surana, the Tribunal heard that at least 14 of the houses then on the Estate had been constructed in the previous 10 years. Some of the more recent additions were not at that point as well screened from the road as the older properties which typically stood behind beech or laurel hedges of three metres or more in height.

The individual plots themselves are large, with a minimum road frontage of 85 feet, but they are not of uniform size, nor are the houses consistently distanced. With its mixture of building styles and variety of vegetation the overall impression given by the Estate is of spaciousness and absence of uniformity. These characteristics are infringed to an extent by some of the more recent properties, which maximise the use of available space and employ less conservative architectural styles. Paradoxically these modern additions, though not to any standard pattern, have a consistency of design and scale not apparent amongst their more traditional neighbours.

The development areas were separated from the Estate roads by wide grass verges, referred to as greenways. They were retained by the Company, but in practice each section of the greenways is maintained by the owner of the adjoining property. Each owner had the right to create a driveway to the Estate road, and a separate pedestrian right of way over the greenways. Building on the greenways is prohibited. Trees have been planted at intervals along the greenways on both sides of the road, with usually two or three of a variety of species in front of each plot; many of these trees are now substantial mature specimens and are likely to have been planted when the Estate was first created.

On either side of Icklingham Road, at what is now the T-junction with Burstead Close, are two parcels of land, originally designated in the building scheme as ‘closes’. The greater part of the close on the west side of the road comprises the application land. The closes were intended to be retained and maintained by the Company as land over which residents of the Estate were to have access for recreation.

The covenants in section II of Part III of the schedule to each conveyance restricted the use of the closes. These are the subject of the present applications for modification. To the extent that they are relevant they provide as follows (‘the Vendors’ referred to being the Company):

The closes were therefore subject to two restrictions, with a variety of permissive exceptions. The first restriction was that no building or erection of any description would be erected on any close; qualified by exceptions in favour of the Vendor. The second was that ‘no close shall be used for any purpose other than as a green garden open space or pleasure ground for the benefit … of the Purchasers and other residents on the Vendors’ Burhill Estate’; again, this was qualified by the Vendor’s right to appropriate any close for use as a sports ground.

The conveyance of each plot also granted the Purchaser certain rights of way and access, including rights over roads, closes and greenways. So far as they concern the closes, those rights are at Section IV of Part IV of the schedule and comprise the following:

As the Tribunal observed, the purchaser’s rights of access were therefore not indefeasible. In the (probably unlikely) event that the close was appropriated for use as a sports ground the purchaser could be prevented from having access to the close unless he or she became a member of an approved sports club and contributed to the maintenance of the close for that purpose.

In 2015 the Estate roads, the greenways, and the closes (to the extent that they had not previously been sold off) were sold for £1 by the Company to Fairmile Estate Ltd, a newly established company owned by the residents of the Estate.