Charlotte Razay
Posted on 5 Feb 2021

Rights of Way: Agricultural restriction stops use for diversification

[Read time: 4 minutes]

Many rural practitioners have had to consider the extent of a right of way (an easement). It is commonplace to find that an easement is limited in some way. In August, the High Court considered whether a plant nursery's diversification of its business to include a tearoom, exceeded the scope of a right of way providing access to the nursery in Mills v Estate of Partridge and another [2020] EWHC 2171 (Ch).

The facts

The dispute related to three parcels of land at Iverley, Staffordshire, which were all in common ownership until around 40 years ago.

The Partridges ("P") purchased a nursery in 1979 with the nursery business starting the following year, growing bedding plants and vegetables. In 1980 P purchased a nearby field for the purpose of growing vegetables.

Over the years P expanded and diversified from bedding plants so that the business now has an annual turnover of £1m. The business now includes polytunnels, outbuildings, stables, a shop and a tea room, with an events licence, which is used to host events. The field is used for parking and to store wood for sale as firewood and compost for landscaping.

The nursery and the field can only be accessed by a track owned by Mrs Mills (M). P has a right of way to:-

"pass and repass at all times and for all purposes in connection with the use of the land conveyed as agricultural land only…".

 The field was subject to a covenant restricting its use to agricultural land.

M brought a claim for a declaration that P's use of the right of way was excessive, amounted to a trespass, and was in breach of the restrictive covenant, as the use of the nursery and the field is not used as agricultural land only.

What does the Court consider?

It is long established that an easement must not exceed the right that was granted or acquired.

The Court considers:-

  • the nature of the use;
  • the purpose of the use; and
  • the amount of the use

having regard to the nature of the land with the benefit at the time the right was granted.

The decision

The Court decided that P's use of the right of way was excessive and breached the covenant limiting the use to agricultural use only. The use of the field for parking and storage was in breach of the restrictive covenant.

The meaning of the use of the land as "agricultural land only" was a determining factor. The Court considered how that phrase would be understood by a reasonable person, with the relevant facts at the relevant time.

The Court looked at the definition of agriculture, particularly, that contained in section 336 of the Town and Country Planning Act 1990:-

"…horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly."

The Court recognised that as agriculture develops, the meaning of covenants and easements may also develop. However, development must not be confused with diversification.

What is not caught by the restriction?

  • Activities that are incidental to an agricultural use.
  • Unrelated activities that are peripheral or incidental and carried on in a small or minimal way alongside agricultural activities, which do not undermine the restriction.

The Court said that it is a matter of fact and degree in each case. For P, the fact that the word "only" did not mean that they were prevented from carrying out activities that were incidental or ancillary. In this instance, the tearoom was not ancillary to the nursery; it was a diversification, run as a separate business. The tearoom attracted a significant additional customer base, which materially increased the amount of traffic using the access track.

It was less clear cut in terms of activities carried on in the nursery, such as the sale of peat and compost, which would be agricultural.

Unfortunately for P, the income from the tearoom and non-agricultural activities was so significant that the business could not be regarded as agricultural. The income from the tearoom alone, exceeded 50% of the nursery's turnover.

What was M awarded?

Watch this space…..whilst the Court has said that M is entitled to relief for excessive use and the breach of covenant to use the land for agricultural purposes, that is yet to be determined by the Court.

Conclusion

The extent of any restriction needs to be reviewed carefully, especially if businesses are looking to diversify. It is far better to work this out before significant sums of money are spent on diversification, which could ultimately be stymied by the wording of a restriction.