[2025] UKUT 00253 (LC)

The restriction was imposed by a deed of transfer dated 22 May 2019 (“the 2019 transfer”) between Richard John Beeby, Nicholas Nigel Beeby and Susan Wray Beeby (“the first transferor”), Rowanmoor Trustees Limited, Richard John Beeby and Amanda Jane Beeby as the Trustees of the Beeby Family Pension Trust, Nicholas Nigel Beeby and Susan Wray Beeby (“the second transferor”) and Lesley Ann Garton (“the transferee”). The parties relied on the HM Land Registry transfer form TP1 to provide details of the deed, and the relevant restriction and limited right of way are set out in part 12 of the form as “Additional provisions”.

Two parcels of land, Parcel A and Parcel B, were transferred by the deed, of which Parcel A was the application land, transferred by the first transferor. The transfer was not for money. Part 12.2 of TP1 concerns “Rights reserved for the benefit of the retained Property” and the limited right of way to Parcel A was included as an exception in part 12.2.2:

“12.2.2

There is reserved for the benefit of the Transferor and for the benefit of the Retained Property the benefit of the exceptions reservations rights covenants and easements and agreements and declarations contained or referred to in the Registers of Title to Title Number NT520576 and NT105884 to the intent that the Transferee and her successors in title the owners and occupiers for the time being of the Property hereby transferred shall not be entitled to exercise or enforce the same and the same shall solely benefit the Retained Property and be exerciseable and enforceable by the Transferor to the exclusion of the Transferee and the owners and occupiers of the Property PROVIDED THAT the Transferee (and the persons deriving title under her) shall be entitled to exercise the right of way reserved at clause 12.3.1 of a Transfer dated 31st March 2016 made between (1) the Transferors and (2) the Transferors, Rowanmoor Trustees Limited and Amanda Jane Beeby subject as set out in that said reservation for the benefit of that part of the Property comprising parcel A only for all purposes in connection with the use of Parcel A as a private garden for domestic recreation but not for any other purpose.”

Part 12.3 of TP1 concerns “Restrictive covenants entered into by the Transferee for the benefit of the Retained Property” and includes one paragraph as follows:

“12.

3.1 No building

The Transferee covenants with the Transferor for the benefit of the Retained Property and every part thereof capable of being benefitted thereby and so as to bind (so far as may be) the whole or the part or parts concerned (as the case may be) of Parcel A into whosesoever hands the same may come not to erect or construct on Parcel A any building or structure (whether temporary or permanent) and to use Parcel A as a private garden for domestic recreation only PROVIDED THAT the erection of fencing in accordance with clause 12.4 below or a shed greenhouse or gazebo shall not be a breach of this covenant.”