[2024] UKUT 0414 (LC)

The restriction was imposed 65 years ago and therefore the possibility that it ought to be deemed obsolete by reason of changes in the character of the application land or the neighbourhood must be considered. In the case of Re Fermyn Wood [2018] UKUT 0411 (LC) the Tribunal (Deputy President Martin Rodger QC and Mr Andrew Trott FRICS) identified four connected matters to be considered for an application under ground (a):

“35.

In determining whether the 1929 covenant can be discharged under ground (a) it is therefore necessary to consider a number of connected matters. It is first necessary to identify the purpose or object of the covenant, which may be stated in the instrument imposing the restriction or may be inferred from the nature of the restriction or from the known circumstances. Next it is necessary to ask whether the character of the property or the neighbourhood has changed since the covenant was imposed. Thirdly, whether the restriction has become obsolete by reason of those changes, in the sense that the object for which the restriction was imposed can no longer be achieved. Fourthly, and finally, whether some material circumstance other than a change in the character of the property or the neighbourhood has had that effect.”

The over-arching purpose of the restriction was stated to be “For the benefit and protection of the adjoining and neighbouring land…”. It may be inferred from the wording of the restriction imposed on the blue land that its purpose was two fold. First to restrict new buildings to a bungalow and to those “…designed and to be used for agricultural purposes…”; second to limit the height, and therefore the visibility, of the agricultural buildings. Ms Lyne submitted that since agricultural use had ceased in 1999, and the conversion scheme would not breach the restriction, an implied restriction to agricultural use could no longer be achieved. Moreover, the restriction on height had been breached from the outset when the sheds A and B were built. This, together with the changes in the character of the neighbourhood since the restriction was imposed meant that the original purpose could no longer be achieved.

Mr Power submitted that the restriction was not obsolete because the objectors continued to secure benefits from it on their adjoining land. In any event, the character of the neighbourhood on the north side of Icknield Way, around the application land, had not changed. The industrial estate and residential developments referred to by Ms Lyne were to the south of Icknield Way and outside the AONB boundary.

From my inspection and the evidence that I heard, I do not consider the restriction to be obsolete. The character of the buildings on the application land has not changed from that envisaged by the restriction. Whilst their use may no longer be agricultural, their appearance is, and the purpose of the covenant was to control appearance, not use. It is agreed that, for the same reason, the conversion scheme is unobjectionable and would not breach the restriction. The neighbourhood of the application land on the north side of Icknield Way and in the AONB has not changed, Icknield Way having formed the natural boundary for new development. The restriction continues to achieve the purpose for which it was imposed in protecting the adjoining and neighbouring land. No other material circumstances were put forward.

The application fails on ground (a).