Struan Gordon Robertson v James and Alexandra Pace

Mr Fox for the applicant submitted that the covenant ensured that planning permission would be obtained for the sewage treatment works and the tannery. The agricultural use of the application land would prevent other uses that might conflict with the uses planned for the retained land and potentially hinder the development for those purposes. At the hearing Mr Robertson confirmed this to be his understanding on the basis that his solicitor had advised that it was the case. Mr Robertson had no involvement in the application land prior to purchasing it.

Mr Fox drew attention to a requirement of the planning permission that the developer carry out an ‘odour audit’ and to identify the best way to prevent the release of emissions that might affect nearby development. Ensuring that the neighbouring land remained agricultural in nature was, he said, a way of reducing the risk that odour from the sewage treatment works and tannery would be problematic.

Mr Fox also submitted that several rights are expressed to be reserved by the Transfer including, at clause 2(c),:

It was, he said, clearly in the mind of the transferor that they wished to be able to develop the benefitted land without finding themselves being pursued by the person they had transferred the application land to for losses resulting from such development (a sewage works or, at the time, a tannery). A restriction to agricultural use helped to ensure the transferors’ intentions were unaffected. Mr Fuller considered that the reservation of such rights was commonplace and should not necessarily be construed in the way Mr Fox had done.

Mr Fox’s final point was that there was no condition in either the planning permission or the section 106 agreement that prescribed the covenant. The local authority did not insist on the restriction for the benefit of the character of the area. Its purpose was not to protect views as there were no residential or commercial premises on the benefitted land.

In Mr Fuller’s view the purposes of the covenant were multifarious. The first was to protect the amenity and character of the benefitted land and in particular the ‘woodland poised above the unspoilt agricultural marshland’ as well as the surrounding area. The second purpose was said to be to protect the unspoilt views from the benefitted land over the application land and the third was to control the use of the application land for the benefit of the benefitted land. The final two purposes are related, namely, to protect the value of the benefitted land, and to protect the owners’ commercial interest (that is the benefitted land and other land the covenantee owned in that area at the time of the transfer).

Mr Fuller submitted that there is nothing in the covenant to suggest that its purpose was to protect a specific development, if that had been the intention the covenant would have been drafted in such a way that it only existed until the scheme had come to fruition.

Neither party has adduced any evidence to support their respective positions. Notwithstanding that section 84 (1B) requires the Tribunal, in determining whether a restriction should be discharged, to take in to account the development plan and any pattern of grant or refusal of planning permissions in the area, other than identifying the local authority classification of the area, no detailed planning submissions were made. The purpose of the restriction must therefore be inferred from the nature and uses of the land and from the terms of the Transfer.

One of the parties to the 1995 Transfer was Chardon Developments Limited. They were said by Mr Pace to be owned by the company seeking to operate the proposed tannery. It seems to me that given that they had interests in the immediate locality, it is plausible, if not likely, that their purpose in including the covenant in the transfer of the application land was the protection of the scheme for which planning permission had already been secured. In other words, the covenant was a means to prevent potential objections to the development and operation of a malodorous facility.

In my judgment it is unlikely that protection of the amenity and character of the benefitted land was the motivation for the covenant. At the time of the transfer the benefitted land was newly planted, and its character would not have emerged until twenty or thirty years later. It is also largely surrounded by a relatively small area of land on which there is no covenant preventing other uses. The remaining parts of its boundary comprise a dual carriageway, a farmyard and an area of land containing a polytunnel. The same observations apply to the second of Mr Fuller’s purposes, the preservation of views. His third purpose is generic, and he did not provide an example of how the control of use of the application land might benefit the benefitted land. Similarly, no valuation evidence was adduced in support of his fourth and fifth functions.

It would appear therefore that Mr Fox’s submission on the purpose of the covenant is more likely to be correct than Mr Fuller’s i.e. that the covenant was imposed by the Transfer of 14 September 1995 to ensure that planning permission would be obtained for the sewage treatment works and the tannery (for which permission was granted in 1998). With this conclusion in mind, I now turn to the question of whether the character of the property or the neighbourhood has changed since the covenant was imposed.

The application land was used, in 1995, for crop farming and that remains the case today. The character of the land is unchanged since 1995 but for the opening of the A256 which forms part of the eastern boundary. The road was built in 2012 and links Sandwich to the A299 which serves Cliffsend and Ramsgate. It was partly constructed on the route of Ebbsfleet Lane which previously provided a means of travelling north from Sandwich to the hamlet of Sevenscore. In his evidence Mr Robertson remarked that land which had previously been part of the application land had been compulsorily acquired for the construction of the A256. The road is slightly raised above the level of its predecessor and the surrounding land but is screened by planting which goes some way to limiting the visual intrusion the road presents. No evidence was adduced about traffic movements on the new road in comparison to the former Ebbsfleet Lane but given that a minor road has been replaced by a dual carriageway, it would not be unreasonable to conclude that aurally the new road is much more noticeable. Notwithstanding the presence of the A256, the character of the application land has in my view not altered to any material extent.

The benefitted land was also largely agricultural in nature. In 1995 the larger part had been recently planted as woodland and the 580 metre long strip was part of a field used for crop farming and still is.

The woodland is now semi-mature. It has changed over the last thirty years because the trees are taller and have canopies but its essential characteristics are the same. It remains a rural area with no public access. Mr Pace said that he used the woodland for shooting pigeons and that his wife made occasion use for educational purposes relating to the neighbouring school. Nothing appears to be harvested from it. I conclude that the benefitted land has not altered in purpose or character since the inception of the covenant.

The land to the north and west of the application land is, with the exception of the village of Minster, overwhelming agricultural in nature and will have changed little since 1995. To the east is the A256 dual carriageway and beyond it is a further area of agricultural land, the Stonelees Golf Centre and Pegwell Bay Country Park. All of these uses appear to be long established and it is unlikely that they will have altered much since 1995.

It is to the south of the application and benefitted land where change is most apparent. The Richborough Power Station was demolished in 2012 and the view of the site from either the application or the benefitted land is now substantially different and presents a less overtly industrial vista.

Land between what is now the Energy Park and the A256 is occupied by an Esso Petrol Filling Station and a KFC restaurant. The former appears long established while the latter is obviously recently built.

The Sandwich Bay to Hacklinge Marshes Sites of Special Scientific Interest (SSSI) comprises a mixture of woodland and open grassed areas. It is therefore rural in character and by its very nature will be unchanged.

To the north of the SSSI is land in the ownership of Mr and Mrs Pace. The use of the land is split between a solar farm and an anaerobic digester. Both have been constructed since the covenant was imposed on the application land.

The land owned by Southern Water consists of the extensive sewage treatment works, and open marshland. The sewage treatment works was constructed after the inception of the covenant.

The final part of the neighbourhood is the former farmyard just to the south of the benefitted land. The farmhouse is now a special needs school and the other former farm buildings including a storage barn and some other smaller farm structures are now used by local businesses. These uses have arisen since 1995.

Aside from the construction of the A256 road, the only part of the neighbourhood that has changed is the area to the south of the benefitted land. The removal of a significant portion of the former power station is to an extent balanced by the construction of the sewage treatment works. Both occupy sizeable sites but the latter is all but invisible from the application land and for that matter the A256. The solar farm is a use often found in a rural context, as is plant for anaerobic digestion. Neither are especially prominent but represent an intensification in the use of what was previously open farmland.

The former farmyard, farmhouse and associated buildings have changed in use but not in extent. To a casual visitor I doubt that much change would be apparent. I conclude that while additional land has been developed over the last twenty nine years, the character of the neighbouring land is essentially the same; it is a mixture of transport and power generation infrastructure, countryside, leisure uses and agriculture.

I have concluded that the purpose of the covenant was to prevent development of the application land which might, by generating objections, pose a risk to the viability of development on the retained land, for uses that might generate odour or in other ways be incompatible. Mr Fox submitted that if the Tribunal accepted that the purpose of the covenant was to protect the retained land during the planning process then it followed, the sewage works having been built, that the original purpose could no longer be fulfilled. That is to take too narrow a view of the purpose of the restriction, which was permanent in its effect (subject to any application under section 84); there is no reason to infer that it was intended only to meet a short term objective connected with the achievement of planning permission. In the event, the tannery was not built and the land to which the proposed development related has only been partially built on. The prospect of building something else, perhaps with the possibility of unpleasant emissions, remains.

In Re Truman, Hanbury, Buxton & Co. Ltd’s Application [1956] 1 QBD 261, which is the leading authority on what is meant by ‘obsolete’ in the context of ground (a), Romer LJ concluded that:

“I cannot see how, on any view, the covenant can be described as obsolete, because the object of the covenant is still capable of fulfilment, and the covenant still affords a real protection to those who are entitled to enforce it.”

Nothing in connection with the application land, the benefitted land or the neighbouring land has changed to the extent that the original purpose of this covenant can no longer be fulfilled. The covenant therefore retains its original utility, and its purpose remains capable of fulfilment.

Both parties agreed that there are no other material circumstances that have had the effect of rendering the covenant obsolete.

I conclude that the case under ground (a) has not been made out.

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.

I conclude that the covenant should not be deemed obsolete and that its discharge would injure Mr and Mrs Pace who are entitled to the benefit of the restriction. I do not, therefore have jurisdiction to discharge it.