In the recent case of Mills v Estate of Partridge and another  EWHC 2171 (Ch) the defendants had owned land that they had originally used as a nursery for growing plants for 40 years. Opposite the nursery there was a field, which had originally been used for growing vegetables.
The field was subject to a covenant in favour of the claimant. The covenant restricted the use of the field to agricultural use only. Access to both the nursery and the field was via a track, over which the defendant had a right “to pass and repass at all times for all purposes in connection with the use of the land conveyed as agricultural land only”. The track was owned by the claimant.
Over the years the defendant’s business had diversified to include polytunnels, outbuildings, stables, a shop and a tearoom. The field was used mainly for parking by staff and visitors to the nursery and tearoom, as well as to store wood for sale as firewood and compost for landscaping.
The claimant sought a declaration that defendant’s use of the track to access the expanded nursery business was a trespass, on the basis that the defendant’s use of the nursery and the field was not as “agricultural land only”.
The court decided in favour of the claimant advising that the defendant, and their customers, did not have a right of way over the track for the purpose of parking to access the nursery or visiting the tea room as they were for non-agricultural purposes. The use of the field for parking and for the sale of firewood was in breach of the restrictive covenant to use the land for agricultural purposes only.
This decision highlights the need to consider the effect of any limitations on an easement on plans to expand and diversify a business. Should a business owner be in a similar position then it is advisable that they open a dialogue with the persons having the benefit of the covenant. This may be costly however not as potentially costly as it will be for the defendant of this case; it will be interesting to see what relief is granted to claimant.
For legal advice on any restrictive covenants applied to your property, Farleys’ residential and commercial property teams are here to help. Contact us today on 0845 287 0939 or submit your enquiry online.