[2025] UKUT 00253 (LC)

The plan below shows the application land, the applicant’s adjoining land at Manor House, the land retained by WLTL and the properties Nos 3 – 10 Thoroton Farm which also benefit from the restriction. Nos 1 and 2 Thoroton Cottages were separately purchased, improved and sold on by WLTL and do not benefit from the restriction. The access road was originally the track giving access to the farm buildings. It now has a tarmac surface, just wide enough for two cars to pass each other. The strip of land to the north of the access road is laid to grass, with a pond, and the small area marked X is a fenced area of tarmac where bins from the development can be left ready for collection. It is understood that refuse and recycling lorries reverse up to that area from Main Street.

Thoroton Farm, including all the parts described above and the surrounding farmland, was purchased by Mr Kenneth Beeby on 18 May 1979. The applicant’s late husband worked from the early 1980s as Mr Beeby’s farm manager and lived as Mr Beeby’s tenant in Manor House (“the house”). The garden of the house at that time included the application land, which was open and unfenced through to the yard and farm buildings beyond.

In 1992 Mr Beeby sold the house to the applicant and her husband, with the requirement to erect a boundary between it and the application land, which he retained. In the same year Mr Beeby converted the closest farm buildings into two cottages, known as Nos 1 and 2 Thoroton Farm Cottages. The application land remained undeveloped.

In 2014 Mr Beeby discussed with the applicant (whose husband had died in 2007) his plans to develop the farm yard at Thoroton Farm. It was agreed between them that in consideration of the applicant agreeing not to object to Mr Beeby’s proposed planning applications he would transfer to her, free of charge, the application land and another small parcel which is not relevant to this application. The agreement was set out in a contract dated 9 December 2014, which included reference to “...rights of way only up the access road...” to the application land.

On 31 March 2016 Mr Beeby transferred Thoroton Farm into a pension trust. A planning application was made for development and permission was granted on 15 June 2017. This was subsequently varied on 7 May 2019.

On 22 May 2019 the application land was transferred to the applicant, subject to the restriction and the limited right of way which are the subject of this application.

In 2020 the development land was sold to WLTL. Construction of the development commenced on 28 September 2020 and was completed in August 2021. The eight properties were sold between June 2021 and June 2022. Refurbishment of Nos 1 and 2 Thoroton Farm Cottages took place between August 2022 and January 2023. Those two properties were sold in August and September 2023.

On 20 August 2021 the applicant submitted an application to Rushcliffe Borough Council (“the council”) for planning permission to build a new two-bedroom dwelling in her garden, including partial conversion of an existing outbuilding, with associated access and parking on the application land. Since the application included access over the access road in the ownership of WLTL, the applicant wrote on 11 August 2021 informing WLTL of her application. Ms Haward recalled making an objection to the application, on the basis of the restriction and limited right of way, but no objections are recorded on the council’s planning portal. Permission was granted on 27 May 2022.

A revised application was submitted on 4 April 2023 for a three-bedroom dwelling without conversion of the existing outbuilding. One objection was submitted by a resident of the new development. Consent was granted on 30 May 2023 (“the planning consent”).

The site plan below is extracted from the plans approved in the planning consent. I have added labels to show the access, parking and garden uses proposed for the application land. The applicant’s intention was that the proposed dwelling would be situated on adjoining land in the garden of Manor House, mindful of the restriction over the application land. The objectors do not accept that the approved site plan is sufficiently detailed to show that no part of the house would be built on the application land. However, I accept the evidence of the applicant that she was aware of the restriction preventing building on the application land (if not the extent of the impediment created by the limited right of way) and that her architect’s plans were produced with that in mind.

On 15 September 2023 the plot with planning consent, including the application site, was advertised for sale. Ms Haward was made aware of this and contacted the applicant’s daughter to discuss the restriction and limited right of way. The applicant then took the plot off the market. Ms Haward confirmed that at that stage she anticipated being able to come to an arrangement with the applicant about access. However, when she notified the owners of properties at Thoroton Farm, as future owners of the access road, they made clear that they were unwilling to support that approach.

At the date of my inspection the application land was a rough grassy site with no boundary fence to the garden of Manor House. An ornamental hedge had been planted along the boundary fence to No 1 Thoroton Cottages. The application site is about 4.5m wide where it abuts the access road. There is currently a standard 3.6m timber field gate across the entrance with a short stretch of infill fencing beside it.