[2024] UKUT 123 (LC)

Mr Fox submitted that the existing uses that surround the benefitted land to the south and east create the benchmark by which any injury could be measured. In his view it was likely that if permission were sought to develop the application land the permitted uses would be similar in nature to those on neighbouring land. Since the benefitted land was already blighted by the sewage works, affected in its use by the school and suffers noise and disturbance from the adjacent dual carriageway, the probable use of the application land would be in keeping with the existing uses and would therefore be incapable of causing additional injury to the objectors. It is not clear how Mr Fox arrived at this conclusion without the benefit of planning evidence. It seems to me that his assertion that a particular use might find favour with the planning authority relies on mere supposition.

I have already set out a summary of Mr Fuller's investigations into the full extent of the retained land in paragraph 13 above. He concluded that Chardon Developments Limited had retained land at the date of transfer and that there were other persons owning parcels of land benefiting from the covenant who were not party to this application.

He noted that section 10 of the application failed to identify any other parties that might benefit from the covenant, notwithstanding that a HM Land Registry search of the Index Map is easy to undertake. He submitted that this failure was a clear breach of the Tribunal’s rules.

He concluded that as a corollary of this situation the Tribunal cannot be sure that all of the proprietors of land with the benefit of the covenant would not be injured by its discharge. Mr Fuller considered that the factors to be assessed by the Tribunal in coming to a decision whether the discharge would be injurious have much in common with those considered under ground (a). These comprise a comparison between the historic and present use of the land and an investigation into the potential impact on the benefitted land if the restriction were discharged in relation to all future uses of the land.

In relation to the former Mr Fuller concluded that there had been no substantial material change to the application land, the benefitted land or the surrounding area since the inception of the covenant in 1995.

Mr Fuller submitted that since the applicant has no viable planning use except agricultural and no intention to apply for planning permission the Tribunal has no benchmark against which to assess injury other than that which would result from discharging the covenant completely. He thought that this placed a higher burden on the applicant as it widened the scope of future uses. In identifying the potential impact he focussed on the effect of development on the amenity of the benefitted land including the views, ability to use the land for shooting and its arboreal character.

I recorded in paragraph 13 that the parties were unable to agree the extent of the retained land. The Tribunal directed service of the application on Chardon Developments Ltd but searches by the applicant’s solicitors disclosed that there is no company trading under that name. The application was also advertised in the local press, and the Registrar was satisfied that enough had been done to bring it to the attention of those who may have the benefit of the restriction.

It is possible that Mr and Mrs Pace or a successor in title, and the owners of other retained land, will wish to explore development options for their land in the future. Given the proximity of the sewage treatment works it is not inconceivable, if not probable, that the options will include uses that generate odour, such as an extension to the sewage treatment works or additional bio-digester capacity. Mr Fuller is correct in saying that the full range of alternative uses to which the application land could be put should be considered but that does not require a complete dislocation from reality. The continued agricultural use of the application land would be compatible with an unneighbourly use on the retained land, or putting it another way, it cannot be shown with any degree of confidence that the proposed discharge of the covenant would not injure Mr and Mrs Pace, and possibly others, in the sense that their options for the retained land would not be constricted. As far as the amenity value of the woodland is concerned, this too would be affected by any development on the application land and it follows that Mr and Mrs Pace would be injured by the discharge of the covenant.

Mr Fuller’s final submission was that the Tribunal should rely on the judgment in Ridley v Taylor [1965] 1 WLR 611 where Russell LJ posed the question: is the objection, proprietorially speaking, frivolous or vexatious? If the answer is no, Mr Fuller submitted, then the applicant should not succeed under ground (c). Mr and Mrs Pace clearly have reason to object, and I concur with Mr Fuller’s submission.