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Determined Developer Overcomes Agricultural Use Restriction

Much of England's green and pleasant land is protected against all but agricultural forms of development. However, as one case showed, the relentless pressure to build more new homes means that such restrictions may not be written in stone.

The case concerned a field on the edge of a rural village on which a developer had obtained planning permission to construct five detached homes. Standing in the way of the project, however, was a restrictive covenant, contained in a 1972 conveyance, which meant that only structures of an agricultural nature could be built on the site.

The developer asked the First-tier Tribunal (FTT) to use its powers under Section 84(1) of the Law of Property Act 1925 to discharge or modify the covenant. However, the application was resisted by, amongst others, the owners of a nearby property with unrestricted views over the site.

Ruling on the matter, the FTT found that the covenant secured practical benefits for the objectors by preserving the setting of their home on the village boundary and its rural views over undeveloped land. The objectors had bought the property in the knowledge that the covenant protected their outlook.

On the other hand, the covenant was 50 years old and the character of the area had since greatly changed. Homes had been built on three sides of the field; it had not been used for agriculture for some years and it was essentially redundant for that purpose. Serving no economic purpose, it had fairly been described as a rather scrubby piece of wasteland and not particularly attractive.

The FTT noted that the planning policy framework for the area would have been very different in 1972. The local authority was now required to deliver a sufficient supply of new homes and to promote sustainable development. The restriction of the site to agricultural use had ceased to have any relevance.

In those circumstances, the FTT ruled that the covenant should be modified so as to enable the development to proceed. Given the harm that the modification would cause to the objectors' interests, however, the FTT directed that it should not take effect until they had been paid £25,000 in compensation.

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