[2024] UKUT 123 (LC)

The application land extends to about 215 acres (87 hectares) and is mostly used for arable farming. It is located about 1.25 miles southeast of Minster and 3.5 miles north of Sandwich. Canterbury is 11 miles to the west and Margate 4.5 miles to the north. It is bounded in the west by the railway line that links the village of Minster and the small town of Sandwich. The A256 Richborough Way dual carriageway forms part of the eastern boundary, the remainder runs along the side of a minor road, Ebbsfleet Lane North. In topographical terms the land is part of the Minster Marshes and is traversed by the Minster Stream and a series of drainage channels. It also contains two large ponds let to a local angling club and is best described as flat. Open farmland extends to the north and west.

The benefitted land is located at the south eastern corner of the application land and covers an area of about 9 acres. It was said by Mr Fuller to occupy an elevated position, but this was not apparent from my inspection. The principal part of it is approximately triangular in shape. It was planted as woodland in the early 1990s.

The plan below shows the location of some of these elements together with the 580 metre strip of land mentioned in paragraph 3, as well as an area of land which partly surrounds the benefitted land and is owned by the applicant but is not burdened by the covenant.

At the time the covenant was imposed Richborough Power Station, which was situated about 0.5 miles south of the benefitted land, was still in operation. Opened in 1962, this 336 megawatt coal fired station was equipped with three 97 metre tall cooling towers and a 127 metre chimney stack. Located in an area which is low lying and overwhelmingly flat it would have been visible for miles around. It was demolished in 2012 and the site is now the home of the Richborough Energy Park and the Richborough Substation. Some of the transmission infrastructure remains in place but the turbines, generators, chimneys, and towers have all been removed.

Immediately to the north of the Energy Park lies the Sandwich Bay to Hacklinge Marshes Sites of Special Scientific Interest (SSSI) which extends from the A256 road westwards as far as the Sandwich to Minster railway line. At the point where it meets the road it is about 100 metres wide and at the time of my visit comprised a mixture of woodland and open grassed areas.

To the north of the SSSI is land in the ownership of Mr and Mrs Pace. The use of this land is split between a solar farm and an anaerobic digester. The solar farm which has operated since 2011 covers the northern part of the land and is let to a special purpose vehicle of which Mr Pace is a minority shareholder. The anaerobic digester, which sits in the south eastern corner of the land and became operational in 2012, is owned and run by Mr Pace’s farm business. In response to questions at the hearing, Mr Pace said that the planning permission for the solar farm was temporary in nature, but he did not reveal the expiry date.

Heading in a northerly direction the next tranche of land is owned by Southern Water and comprises two trapezoidal shaped sites, one houses an extensive sewage treatment works, the other is open marshland.

The final notable area of land is a former farmyard. The farmhouse is now used by a special needs school and a storage barn and some other small farm buildings are used by local businesses.

The benefitted land previously formed part of a larger title (title number K716058) owned by Chardon Developments Ltd who were one of the parties to the transfer that gave rise to the covenant. Title number K716058 has been closed by HM Land Registry and continued under title number K838442. However, the true extent of the retained land is not entirely clear. Mr Fuller submitted that title number K716058 included other land bordering the land now belonging to the objectors, and at least some of this other land was retained by Chardon Developments Ltd at the date of the transfer. He concluded that from the available conveyancing history that the land comprised in title number K716058 which was retained after the transfer appeared to include land now under title number K838948 which is located to the south of the benefitted land. He considered that title number K981546 which directly adjoins title number K838948 and was the subject of a transfer with the land in that title in 2002, might also be part of the original benefitted land. Furthermore, it is possible that two additional parcels of land (title numbers K868267 and K986894) may also originally have been included in K716058 and retained by Chardon Developments Ltd at the date of the transfer as they were part of land owned by the company as at 3 February 1994 and May 1993 respectively. There is no consensus between the parties, that the land on which the solar farm and the anaerobic digester are situated (title number 716057) is part of the retained land, Mr Fox submitted that it was, Mr Fuller disagreed.