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Articles 25th Mar 2022

Tarmac Real Estate Bulletin – Spring 2022

Welcome to the Spring Edition of the Tarmac Real Estate Bulletin.

This quarter we take a look at recent case law dealing with easements, nuisance and restrictive covenants. We have an update on the judicial review of the changes made to the Town and Country Planning (Use Classes) Order 1987.


Easements – Lost modern grant

The appellants owned a house that was accessed from the highway along a track. The respondent (the incumbent vicar) owned the freehold of the village church next door, and claimed a prescriptive easement over the track for the benefit of the church, based on long user, which it sought to have registered at the Land Registry. When the appellants objected, the issue was referred to the First Tier Tribunal.

As the track hadn’t in fact been used for these purposes since 2015, the respondent’s claim was based on lost modern grant and in the First Tier Tribunal, he was successful in establishing the easement. The appellants appealed to the Upper Tribunal, arguing that the use had only been occasional and had not been sufficient to establish an easement by prescription. The appeal was dismissed.

Practical tips:

  • Practical tip – as we know, it is possible to acquire easements by long user – these are known as prescriptive easements – and one method by which such easements can be acquired is under the ‘doctrine of lost modern grant’
  • Practical tip – a claim for an easement under this doctrine is based on 20 years’ use and can be successful even if the use has been interrupted after the required 20 years has accrued
  • Practical tip – claimants need to be able to show sufficient continuity of use, and this is a question of fact in each case – what is required is use of sufficient intensity or frequency to indicate that a right is being asserted


Nuisance – noise

A buyer acquired a site on Anglesey, with the intention of developing a holiday park, by converting some outbuildings and, in due course, erecting new units, including some for commercial use.

About four years later, after having had some success with venture, the holiday park owner issued a nuisance claim against the MoD, alleging that increased noise from a nearby airfield had blighted the site and had effectively caused the business to fail. Attempts to sell the site since 2016 had also been unsuccessful.

The airfield, which is about a mile away from the holiday park, had been used by the RAF since the 1950s as a relief landing ground and as a runway for trainee pilots to carry out drills.

When it got to the High Court, the judge was satisfied that the noise was very loud, and likely to put off holiday makers and commercial tenants, it was not an actionable nuisance. The use of the airfield was an ordinary use of that land consistent with the character of the locality.

Practical tips:

  • Practical tip – private nuisance is concerned with the unlawful interference with a person’s use or enjoyment of their land and can take many forms, including noise
  • Practical tip – not all disturbances are ‘actionable’ and claimants must be able to prove that they have suffered some form of damage, whether that be physical damage to their property or unreasonable interference with the use and enjoyment of their property
  • Practical tip – there is a balance to be struck between the interference with the claimant’s property rights and the reasonableness of the defendant’s activity on their own land, and the nature of the locality in which an alleged nuisance is carried out is an important consideration for the courts


Restrictive covenants – benefitting land

A rugby club wanted to redevelop its home ground by building a new 18,000-capacity stadium, along with riverside regeneration, community use and a car park under a raised pitch. Part of the site was burdened by restrictive covenants prohibiting various business uses and preventing nuisances or annoyances and activities that ‘otherwise prejudicially affect the adjoining premises or the neighbourhood’. The covenants were contained in a conveyance from 1922.

Eight people, who owned property near the ground, objected to the propose development and sought to enforce the covenants. The club applied for a declaration that the covenants no longer affected the site. The High Court found that the covenants remained enforceable by the current owners of various parts of the benefiting land.

Given the impact on the proposed redevelopment, the club appealed to the Court of Appeal, which found that the word ‘neighbourhood’ was not sufficient to identify the land to be benefited and so the covenants couldn’t be enforced by the local residents.

Practical tips:

  • Practical tip – the decision provides useful guidance in terms of the passing of the benefit of the right to enforce restrictive covenants, particularly those created before 1 January 1926
  • Practical tip – the Law of Property Act 1925 introduced statutory annexation to assist with the passing of the benefit of restrictive covenants created after that date, but the benefiting land must still be ascertainable from the deed that creates the covenants or, potentially, extrinsic evidence



Planning – use classes

Back in 2020, a campaign group made an unsuccessful High Court challenge to the Government’s measures introduced to bring flexibility to the planning system by extending permitted development rights and making changes to the Town and Country Planning (Use Classes) Order 1987.

The campaign group applied for judicial review of three statutory instruments implemented to make significant changes to the 1987 Order, and to introduce new permitted development rights for upwards development and for the demolition and replacement of office building with residential ones. The basis of the challenge was that Parliament hadn’t had sufficient time to properly consider the proposed legislation (the statutory instruments were laid before Parliament the day before the summer recess in 2020) and that strategic environmental assessments had not been carried out.

The Court of Appeal has dismissed the campaign group’s appeal, finding that the Secretary of State had not acted unlawfully.

Practical tips:

  • Practical tip – the changes introduced by the statutory instruments came into effect (in England only) on 1 September 2020
  • Practical tip – however, we have been in a state of limbo whilst the various court hearings have been going on, particularly in the context of drafting leases that use the shorthand of the Use Classes Order to define the permitted use and any changes of use
  • Practical tip – read more about the changes to use classes in this article written by our Planning & Environmental Team at the time

Article provided by: Freeths Professional Support Lawyers

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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