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Rights of way: check the small print

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When a right of way is granted, conditions might be attached to the right which restrict how you are allowed to use the right of way. A typical example would be a condition that limits use of the right of way to pedestrian use only. Similarly, conditions might prohibit commercial use or they might specifically state that the right can only be used for agricultural use.

In the recent case of Mills v Estate of Partridge, the High Court was presented with a dispute concerning a right of way and the enforcement of conditions attached to that right.

The right of way which was the subject of the dispute had been granted for the following limited purpose:-

purposes in connection with the use of the land conveyed as agricultural land only”  

The Claimant in this case owned a track. The Defendant enjoyed a right of way over the track. The track led to the Defendant’s land which comprised agricultural land. That land had historically been used for agricultural purposes. Specifically, the land had been used as a nursery for growing bedding plants and for growing vegetables. 

The land was also subject to a restrictive covenant that limited use to agricultural use.   

Over the years, the Defendant had gradually expanded and diversified its use of the land. This diversification gradually began to push and test the definition of “agricultural use”.

Alongside the sale of plants from the nursery which continued, and did so successfully, the Defendant opened a shop and also began to run a tearoom from the land.  The shop sold a variety of products including agricultural products but also a large number of products that could not plausibly be described as agricultural in any sense.

The tearoom comprised a purpose built kitchen and was used to host various events.  The land was also used by staff and visitors to the shop and tea room for parking.

The question was whether it could plausibly be argued that the land, assessed as a whole, was now being used as “agricultural land only”.

Plants were still being sold from the nursery, but could the operation of a shop and tea room really be classed as agricultural use? Did use of the land have to be entirely agricultural or could the Defendant get away with mixed use?

The Claimant argued that the Defendant was not using the land as agricultural land only and that it was in breach of the terms of the right of way which clearly stated that the right could only be exercised for agricultural purposes.

The Defendant argued that it was still using parts of the land for agricultural purposes and that the overall theme of its use was agricultural. It referred to the fact that the shop did sell agricultural products and that the tea room was simply an ancillary component of the primary business of the plant sales business.

The Court’s view was that the tea room was not ancillary to the nursery. The tea room’s turnover exceeded the nursery’s turnover. The tea room use could clearly not be described as agricultural use.

In relation to the shop, an analysis of the products sold revealed that the number of bought-in products, including garden ornaments and other products that were consistent with a garden centre business, put the use of the shop beyond what could reasonably be described as agricultural use. Agricultural use within a retail context would involve the sale of locally-produced compost, peat, and nursery-grown plants. This did not apply in this case.

The Court therefore held that the Defendant was not using the land for agricultural purposes. It was therefore exceeding the permitted scope of the right of way. The Claimant was therefore entitled to an injunction to prevent the Defendant’s use of the track. The Defendant was left high and dry with no access to its land.

The problem for the Defendant in this case was that although there was still an agricultural flavour to use of parts of the land, significant aspects of its use of the land had diversified into non‑agricultural activity.  This was not a case where the non‑agricultural activity was very minor. There was diversification into non‑agricultural activity on a significant scale.

Observers might have some sympathy for the Defendant in this case.  There was nothing inherently wrong with the activities being carried out on the land and the diversification of the use was in many respects perfectly reasonable and commercially prudent.  The Defendant’s fatal mistake was not to carefully and robustly assess the restrictions affecting its land. Perhaps the Defendant made the mistake of assuming that diversification would be welcomed by all in the spirit of commercial advancement and progress. If so, it was a costly assumption.

The case highlights the need to not only consider the restrictions that may affect your land before you make any plans to expand or diversify your business but also to carry out a robust, devil’s advocate assessment of those plans. You might regard your plans as exciting and perfectly reasonable but people with the benefit of restrictions that affect your land may not share that same sense of excitement and wonder.

Seek advice before you commit to your plans.  Do not underestimate the willingness of some people to throw a spanner in the works. 

If you have any questions in relation to the issues raised in this article, please contact Andrew Turner on 01242 586841 or at aet@hughes-paddison.co.uk.

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