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Property litigation lawyer sends rights of way warning

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A leading Midlands property lawyer has highlighted the need to check rights of way and restrictive covenants connected to land after successfully representing a landowner in a High Court dispute.

Property litigation solicitor Harjie Bindra has issued the alert after acting on behalf of his client in relation to the misuse of a track and agricultural land by a garden nursery business in Iverley, Stourbridge.

The case, Mills v Partridge & Partridge (2020), centered around land used by Highdown Nursery, which had grown and diversified as a retail business to include a shop and tearoom.

Mr Bindra and his team successfully argued that the use of a right of way over a track for non-agricultural purposes, and a neighbouring field for storage and customer car parking connected to the commercial activities of Highdown Nursery, amounted to a breach of covenant and trespass.

Mr Bindra, partner and Head of Property Litigation Division at mfg Solicitors, said: “This was a unique case which ruled that the defendants did not have a right to use the track which my client owned or their neighbouring field for purposes which were not agricultural.”

“The court agreed with our argument that the use of the word only” in the restrictive covenant connected to the neighbouring field was absolute as it meant activities that did not have agriculture as a primary purpose were not permitted.

“Although unrelated activities carried on in a small or minimal way alongside agricultural activities would not undermine agriculture only’ restrictions, in this case, the tearoom constituted to more than 50% of turnover for the nursery and, together with the sale of non-agricultural goods at the nursery, were so substantial it could no longer be regarded as agricultural. The tearoom was run as a separate business through a separate company.”

Court proceedings lasted more than three years and resulted in Mr Bindra’s client being awarded an injunction and an order requiring the defendants to pay her costs.

The nursery business shut down in 2021 following the court ruling and the site in Sugar Loaf Lane is now generating attention having been put up for sale by commercial property agents.

Mr Bindra added: “The decision highlights the need to check rights of way and restrictive covenants connected to land carefully prior to diversifying or expanding a business.”