High Court rules that the expansion of plant nursery to include a tearoom goes beyond the remit of agricultural use

The case of Mills v Estate of Partridge and another [2020] EWHC 2171 (Ch) (“Mills”) last month found that a plant nursery’s business diversification plan to include non-agricultural activities, namely operating a tearoom alongside it,  went beyond the scope of the permitted use of the right of way to the Property and also breached a restrictive covenant requiring the land to be used for agricultural purposes only.

Background

It has been well established that the scope of an easement (the grant or reservation of a right over land for the benefit of other land) can be limited by the terms of and circumstances surrounding the original creation of that right.  For example, if a right was granted for the purposes of “obtaining access to the farm buildings on Property A”, then if those farm buildings were converted for residential use, it is possible that that right of way could not then continue to be exercised.  In the event of a dispute, Courts consider the nature of the use of the right, the purpose of the use, and the frequency of use, often by considering the nature of the land with the benefit of the right as at the time of the grant of the right. Should the nature of the land with the benefit of the right change over time, as was the case in Mills, then this can lead to the right not being capable of lawfully being used for the “new” use of the relevant land.

The Case

The Defendants were owners of land that was originally used for growing plants and vegetables. Access to the land was obtained via a track which was owned by the Claimants. The Defendants had the benefit of a right of way over that track to “pass and repass at all times for all purposes in connection with the use of the land conveyed as agricultural land only”. There was also a covenant affecting part of the land which restricted its use to agricultural purposes only.

The Defendants’ business grew over the 40 years that they had owned the land to include polytunnels, outbuildings, stables, a shop and a tearoom (which had its own entertainment licence and was often used to host events). The relevant land in dispute was used as a carpark for visitors and staff and for storage.

The Decision

The Claimants claimed that this use had become an excessive use of the existing right of way, and the High Court agreed and made a ruling in favour of the Claimants. The Court also ruled that this use was in breach of the covenant restricting the use of the land to agricultural purposes only. The High Court accepted that agricultural activities may develop over time, but they said that this shouldn’t be confused with diversification into a non-agricultural activity. This was the case here as the easement could not be used to obtain access to the land once it was being used as a car parking facility and tearooms. The High Court ruled that the combined turnover of the tearooms along with the other non-agricultural activities carried out at the nursery was so significant that it wasn’t realistic to treat the business as agricultural only. In conclusion therefore, the Claimants were entitled to a form of relief due to the excessive use of the track, in addition to trespass. Please note however that the relief is yet to be determined by the High Court. This might be payment of damages or, possibly, a ruling that the use of the access track for these purposes must cease.  It will be interesting to see what relief is ultimately ordered by the Court

This case highlights the importance of considering the limitations of easements and how these might affect any future plans to expand and diversify a business. Here, the business had developed over a long period of time to one that was vastly different to the original nursery. The High Court noted that, even though the nature of agricultural activities might develop over time, this was constrained by the need to respect the rights of the land over which any right of way runs. It is vital to consider the specific terms of rights of way and any restrictive covenants both when buying land, and when using it.

Going forward

If you have any queries about the points raised in this article, or generally relating to any property matter, please contact a member of the Agri Advisor Property Team on 01558 650381