[2024] UKUT 0414 (LC)

The application land was sold away from the surrounding land by a conveyance dated 4 November 1959 between Thomas Leslie Sole, the vendor, and John Trevor Pritchard and William Bernard Poole Pritchard, the purchasers. The property conveyed was described in two parts, coloured pink and blue respectively. This application is concerned with the land described as coloured blue. The conveyance contained restrictive covenants at clause 3 by which the purchasers undertook:

“3.

FOR the benefit and protection of the adjoining and neighbouring land now held by the Vendor and edged green on the plan attached hereto and so as to bind the land hereby conveyed into whosesoever hands the same may come the Purchasers jointly and severally covenant with the Vendor that the Purchasers and those deriving title under them will at all times here after observe and perform the following conditions –

(I)

(a) Not at any time hereafter to erect any building or erection of any kind whatsoever on the land coloured pink on the said plan other than fences and gates and (b) Not to erect any building or structure upon the land coloured blue on the said plan other than (i) buildings designed and to be used for agricultural purposes and being of a height of not more than seven feet to the eaves and twelve feet to the ridge and (ii) not more than one private bungalow or private dwellinghouse built to plans previously approved by the Vendor or his Surveyor in writing the fees of such Surveyor being paid by the Purchasers such approval not to be unreasonably withheld

…”

This application seeks discharge or modification of the restriction at (b) (i), which is underlined to distinguish it. The enclosed plot on which a bungalow has been erected is now held under a separate title and is not included in the application. The plan below shows the pink and blue coloured land, which together were the land sold in November 1959.

On 7 March 1960 Beeches Farm was sold to Drayton Beauchamp Poultry Farm Limited, a company of which the Pritchards were directors. On 3 May 1973 planning consent was issued to Dalgety Egg and Poultry Division for demolition of existing buildings and erection of a bungalow, two large hen rearing houses and two feed hoppers. The two hen rearing houses, known as shed A and shed B, remain on the application land, along with the two feed hoppers and two other small sheds. The ridge height of the sheds is 5m (16.4 feet) and it is not disputed that their height exceeds that permitted by the restriction. Ownership passed in 1976 to Dean Farm Eggs Limited, in 2006 to Peter Dean, and in March 2021 to Phase Investments Limited which, in December 2021, changed its name to Beeches Capital. Peter Dean remains the owner of the bungalow plot and is a named respondent but not an objector to the application.

In 1967 Mr Don Hunt and Mrs Margaret Hunt purchased a house known as Drayton Holloway, with an adjoining paddock, which had previously belonged to Mr Sole and thus had the benefit of the restriction in the 1959 conveyance. In 1993 Mr and Mrs Hunt purchased the 7.25 acre field (“the field”) and strip of woodland (“the copse”) between Drayton Holloway and Beeches Farm, which similarly had the benefit of the restriction.

Other adjacent properties, Lodge Cottage, part of Rye Hill Farm and a small strip of land to the east of Rye Hill Farm, also benefit from the restriction but their owners have not objected to the application.

The location of the various properties and buildings is shown on the plan below, together with the route of a public footpath across the field. This currently crosses between Sheds B and D but would be diverted around the new buildings under the approved plans for redevelopment. The main sheds and the bungalow are enclosed within a close boarded timber security fence, approximately 2.5m high.

The five bedroom house at Drayton Holloway dates from the 1930s and is set in a garden with mature trees, the boundary of which is 195m from the north west corner of Shed A. The boundary between Beeches Farm and the field is a post and barbed wire fence. About three years ago the objectors planted an indigenous hedge on the field side, and a line of beech/birch tree saplings further inside the field. The trees did not take and very few survive. The field is down to grass and used for taking an annual crop of hay. Otherwise it is used informally by the objectors for quiet recreation.