[2025] UKUT 00253 (LC)

Submissions for the applicant relied on the lack of clear evidence of the purpose for which the restriction was imposed, and the fact that since the imposition of it in May 2019 the benefitted land had been redeveloped leading to changes in the character of the neighbourhood. Mr Diggle submitted that if the purpose was to protect the retained land for the proposed development, then that purpose can no longer be achieved since the development has taken place and it ought to be deemed obsolete.

Ms Haward stated that when WLTL purchased Thoroton Farm in June 2020, with the benefit of the planning permission, it was in the knowledge and comfort of the restriction and limited right of way so that, once completed, the development would be an exclusive estate without traffic from other properties being able to use it. Mrs Tomlinson, who might be described as the lead objector, stated that she had a telephone conversation with Mr Beeby on 9 January 2025, to discuss the applicant’s application to the Tribunal to have the restriction removed. She said that Mr Beeby was shocked and told her the restriction on the application land and on the right of way were imposed to prevent the applicant from developing it and her property. However, the subjective view of one party regarding the purpose of a covenant is not admissible evidence, and that purpose is to be inferred from the terms of the covenant and the objective circumstances, so I can give no weight to that assertion.

Regarding changes to the neighbourhood, Mr Power submitted that the applicant entered into the restriction in 2019 in the full knowledge of the proposed development at Thoroton Farm. She had entered into an agreement in 2014 not to object to planning applications for the development, the first planning consent had been granted in 2017 and the amended scheme was approved just before the transfer to her of the application land. The character of the neighbourhood now is exactly as it was envisaged to be when the restriction was imposed, and the restriction is therefore not obsolete.

From my site inspection I can understand why Mr Beeby would have decided, or been advised, to impose the restriction ahead of the sale of his retained land to a developer. As Ms Haward explained, this provided an assurance to the developer that they need have no concern about traffic from a third party utilising the private access road to their completed development - beyond that arising from limited use of the application land as a private garden for domestic recreation.

I conclude that the restriction, imposed only six years ago, has not become obsolete by reason of the development and, in fact, now fulfils its most likely anticipated purpose. I therefore decline to discharge or modify the restriction under ground (a).