■open country access may be closed for up to 28 days
each year, but not over bank holidays or weekends.
Limitation on access rights
Even where access rights are granted, these rights are
limited by Sch 2 to the 2000 Act so that, e.g. no vehicle
can be used (including bicycles), no craft can be sailed
on waters and no organised games played – so no paint-
ball games. Camping is also prohibited. If these activities
are undertaken, the persons concerned become tres-
passers and can be removed by the use of reasonable
force. Countryside bodies have power to further restrict
access during a specified period in the event, e.g. of a fire
risk, and indefinitely for nature conservation, heritage
preservation and national defence. The owner of the land
is under a duty only to warn of dangers known to him or
her or which are reasonably believed to exist.
Restrictive covenants
These covenants control the way in which a person uses
his land. There is publiccontrol of the use of land
through Town and Country Planning Acts (see further,
Chapter 4 ) and there are also building regulations to
cover the way in which buildings are constructed. As
well as publiccontrol, however, there is also private
control by means of restrictive covenants. If these are
put into a lease of land the landlord can enforce them
against the tenant because they are parties to the contract;
in other words, there is a privity of estate or contract
between them.
However, it is often desirable that covenants (or agree-
ments) restricting the use of land should be enforceable
between those who own freehold properties. For example,
when estates of private houses are built, it is desirable in
order to preserve the residential nature of the estate that
covenants, e.g. to use the premises for residential pur-
poses only, should be complied with by the purchasers
of the individual houses and also by those who buy from
them and so on, and that these covenants should be
enforceable by the house owners as between themselves.
Covenants can be created by a common seller of the
property, e.g. the builder or developer (whoever owns
the land), and then they can be enforced by the pur-
chasers of the houses as between themselves. The builder
or developer will not normally be able to enforce them
because he will not usually own any land on the estate,
having sold it all off for housing plots. These are com-
monly known as building schemes.
These covenants can be enforced between subsequent
owners of the houses as an exception to the rule of
privity of contract (see also Chapter 7 ). They are, how-
ever, void unless registered as a land charge at the Land
Registry.
When a person buys a house a solicitor acting in the
matter will get a search of the Land Register done and
will find the restrictive covenants which exist over the
property. If he does not find any, because they are not
registered, then they are void.
As far as business premises are concerned, these
covenants can be a nuisance, in that they may restrict the
development of the business. A person who wishes to get
rid of a covenant is able to pursue an application to the
Lands Tribunal, which deals with certain disputes over
land, for modification or discharge.
However, the expense and delay which are unfor-
tunately typical of so many legal procedures apply to
Lands Tribunal applications so that developers of land
who are faced with the possible enforcement of a covenant
making development more expensive may insure against
that possible loss. A Lands Tribunal application may be
considered for a major development where insurance
is expensive and not an economic option. It can also be
used to sound out the strength and identity of possible
objectors.
The method of enforcement is by a claim for dam-
ages or an injunction. The right to an injunction may be
lost by delay and/or acquiescence (see further Chapter 7
on the remedy of injunction ). Thus, it was held in
Gafford vGraham(1998) that a landowner enjoying the
benefit of a restrictive covenant over adjoining land who,
with full knowledge of his rights, failed to seek relief to
restrain the unlawful erection of an indoor riding school
in breach of covenant could have damages only when
he eventually brought a claim. Delay and acquiescence,
which is assumed from delay, had barred his claim to
injunctive relief.Legal estates in land
There are three legal estates in land – the fee simple
absolute in possession (usually called a freehold), the
term of years absolute (usually called a leasehold) and
the commonhold.Part 4Business resources