Mills v Partridge, The Estate of & Anor

A restriction to use land or an access way for agricultural land only permits activities which are genuinely incidental or ancillary to agriculture. It does not permit a separate activity with a different character or purpose, even if that activity supports or attracts customers to the agricultural business. Whether an activity is incidental, peripheral or ancillary is a matter of fact and degree. The court must examine the substance of the business, including what is grown, bought, developed and sold, and the scale of any diversification. A garden centre and a substantial tea-room business are not agricultural merely because they operate alongside a nursery. Agricultural practices may develop over time, but that does not convert non-agricultural diversification into agriculture. Access and parking connected with impermissible uses fall outside an agricultural-only easement and may constitute trespass.

The claimant owned Iverley House Farm and land surrounding a track serving the defendants’ Nursery and Field in Staffordshire. The relevant 1978, 1979 and 1980 conveyances granted rights of way and imposed covenants limiting use to agricultural land only. The defendants’ activities included horticultural production, retail sales, storage, parking, a biomass boiler, a log business and a separately operated tea room with an entertainment licence.

The claimant sought declarations and relief for breach of covenant, excessive use of the rights of way, trespass, boundary encroachment and interference with the track. The defendants relied on construction, prescription, delay, laches, acquiescence, waiver and the benefit and burden principle. The central questions concerned the meaning and scope of agricultural-only restrictions, the width of the rights of way, and the effect of the defendants’ historic conduct.

1. Construction of agricultural-only restrictions. The phrases in the conveyances were construed objectively in their factual context. The relevant meaning was that understood by a reasonable person informed of the circumstances at the date of each conveyance. Agricultural practices could develop over time, subject to practicality, common sense and the servient owner’s rights, but development in agriculture was distinct from diversification into non-agricultural activity. The court relied on Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 and Lymington Marina Ltd v MacNamara [2007] EWCA Civ 151.
2. The word “only” materially constrained the permitted use. Activities genuinely incidental or ancillary to agriculture, or peripheral activities carried on on a small scale, could remain permissible. A separate activity with a different character or purpose was excluded. The court applied the fact-and-degree approach in Jewell v McGowan [2002] EWCA Civ 145 and St Marylebone Property Co Ltd v Tesco Stores Ltd [1988] 2 EGLR 40, and distinguished the holistic agricultural-tenancy analysis in Short v Greeve [1988] 1 EGLR 1.
3. The Nursery’s horticultural activities, reasonable parking, and incidental sales of compost and peat could fall within agricultural use. Commercial sales of landscaping materials, the separate log business, substantial non-agricultural storage, and parking or access connected with the tea room did not. The tea room was a separate legal and operational business, conducted on a substantial scale, and was a diversification into non-agricultural activity. Its physical integration with the Nursery and its commercial purpose did not make it ancillary.
4. The defendants had no right under the relevant easements to use the Track for access connected with the tea room or other non-agricultural activities. Recent pipes laid beneath the Track constituted trespasses, and the Track had been widened beyond the conveyed track way by stoning and cutting back vegetation.
5. The positive fencing covenant was capable in principle of engaging the benefit and burden principle because of the reciprocal relationship between fencing the Field and moving animals along the Track. Nevertheless, open and long-standing non-compliance, together with the claimant’s lack of complaint, justified a presumed release or waiver in the circumstances. The claimant could, in principle, fence her own land, provided that agricultural access was not obstructed.
6. The court rejected the defendants’ claims based on prescription, adverse possession, limitation, laches and acquiescence in relation to the principal agricultural-use restrictions. Relief was available in principle for the established breaches and trespasses, with the extent of relief to be determined subsequently.