We have today received an Initial Legal Review, into Eastbourne Borough Council’s proposed sale of all its downland farms, from a lawyer who has kindly offered his advice pro bono because he loves the Eastbourne downland just as much as anybody in the Keep Our Downs Public campaign. We’re pretty clear that the advice undermines the key claim of the council that the covenants it will put on the sale contracts will adequately protect the downland after any sales. Indeed, as the lawyer concludes, the claim “appears to be inaccurate and misleading”.
Proposed Sale of the Downland Farms by Eastbourne Borough Council
Initial Legal Review for Keep our Downs Public
In 1929 Eastbourne Borough Council (EBC) under powers given by The Eastbourne Corporation Act, 1926 compulsorily purchased 4,100 acres of downland (about half of the entire area of the Borough) from the Chatsworth and Gilbert Estates.
Since that time EBC have retained ownership and the major parts of the land have been let on four farm tenancies: Bullock Down, Black Robin, Chalk and Cornish Farms.
As the freehold owner EBC has worked with the tenants to ensure that good environmental standards are maintained and that farming practices are sympathetic to native wildlife. The Eastbourne Downland Management Plan 2012-2017 shows in 76 pages the degree of management required to ensure the proper protection of these areas.
EBC now propose to sell these farms in order to raise cash for development projects within Eastbourne. EBC through Cllr David Tutt, the Leader of the Council has stated, “the use of the land cannot change and is protected by 140 pages of covenants.”
Land Registry searches have been made and so far we have not been able to find a single covenant imposed on the land by the Council that would in any way restrict the use of the land by any purchaser.
This paper will assess whether the Council can impose covenants on the sales of these farms that would enable effective restriction of the use of the land or ensure its effective management.
It is certain that the Council will not be able to control who may be subsequent purchasers, in any way.
2. Overview of restrictive covenants
On the sale of part of land it is possible for the seller (S) to impose covenants on the buyer (B) of the part being sold. Such covenants may be positive or negative.
However should B then sell the land to C, only those covenants which are restrictive in nature will ‘run with the land’ and continue to bind the new owner, C.
Therefore an important task will be to go through all of the covenants that EBC say will apply and see which of these are positive in nature. Such covenants are incapable of ‘running with the land’ and will fall away once the land is resold.
i. Certain prohibitions may not actually be enforceable. For example, covenants restricting buildings falling into disrepair or covenants requiring land to be kept free of invasive species. This is because they are regarded as positive since they involve the expenditure of money.
ii. The restrictive covenants must benefit other identified land. (This is the legal concept of having dominant and servient land.) In this case the servient land will be that which EBC intends to sell and the dominant land that which it still retains.
iii. The dominant land must truly benefit from the covenant. For example, if the area is too big or too far away the covenant may not be enforceable. Thus a covenant imposed on the northerly parts of Chalk Farm could not be found to benefit the coastal strip of land retained by the Council.
iv. The Chatsworth and Gilbert estates exercising their rights of pre-emption would be entitled to take the lands free of any covenants: positive or negative.
v. Furthermore, restrictive covenants are not a perfect method of protecting land because the owner of the servient land (i.e. the new owners) can always apply to the court or the Upper Tribunal (Land Chamber) to have them discharged or varied. For example, because the restrictive covenants are obsolete or do not properly benefit the dominant land.
vi. Lastly, what will EBC do if an owner breaches its covenants? It may be some time before it was realised that covenants had been broken. The procedures for enforcement are cumbersome, uncertain and expensive. They have to be exercised without undue delay. Would EBC then take legal action? EBC has very little in-house legal resource so it would need to engage and pay for external legal services. In reality it is likely that EBC would not take legal action even if such covenants had been breached.
3. The Eastbourne Downland Management Plan
We have reviewed the Eastbourne Downland Management Plan 2012-2017. This document assesses, in 76 pages, the value of the downland owned by the Council and asserts that ‘the whole downland area is considered to be of extreme importance for six main reasons.
One of these reasons is headed ‘Ecologically’ and states that ‘ the area is extremely important for migrant and resident breeding birds and butterflies.’
It also states (p6) ‘If features of importance are to be maintained for future generations, then the management practices designed to maintain them must continue.’
The Plan divides the area it owns into 16 Compartments. Each of the Compartments has it’s own Management Actions and Future Aspirations. Here are two examples of such aspirations from the areas that EBC intends to sell:
‘In liaison with tenant, establish a programme for scrub management at Widgens Bottom, including the coppicing of scrub blocks and to limit pioneer woodland succession.’
‘Liaise with the tenant farmer to also investigate creating a backpackers camp site for walkers adjacent to the farm building complex.’
Appendix 3 sets out the Scrub Management Programme. It says that the Council ‘actively seeks to maintain scrub upon the downland and to manage it to provide blocks with a differing age structure and therefore a variety of habitats in a cohesive balance with grassland.’
It will be apparent that if the farms are sold none of these initiatives could be required or progressed by EBC. Approximately two thirds of the whole of the Eastbourne downland would be sold and any such initiatives would be up to the new owners who may have little regard for wildlife and concentrate on maximising the annual profit from the farms.
As these are all positive acts it is not possible in law to have these as binding covenants that will run with the land.
4. The need for proactive management
The State of Nature Report (Second Report, Sept 2016) shows that the UK’s wildlife is generally in a state of decline. For example 15% of 8,000 of our our native species are now facing extinction. As owner of two farms totalling nearly 3,000 acres, EBC is in the position where it can, by adopting good practices, play it’s part in stopping this decline and actively help native wildlife.
By not engaging in this vital process, EBC will be neglecting its moral responsibility to look after its local wildlife.
Even if EBC were to have restrictive covenants in force, that were adhered to by successive owners, it could do nothing to ensure that positive measures were taken for the benefit of wildlife or the people of Eastbourne.
This is particularly important now as climate change starts to take hold. In the whole of the UK, it is the South East that will be the most affected as temperatures rise and rainfall decreases. To prevent further loss of species active measures will need to be taken. One example would be the planting of certain drought resistant trees. Such measures can only be taken by EBC if it continues to own the freehold.
EBC is proposing to sell off the public’s downland farms. It claims that this will not affect either the people of Eastbourne or local wildlife primarily because there are ‘140 pages of covenants.’ From our initial review this assertion appears to be inaccurate and misleading.
We shall continue to work with the members of the public who are opposed to the sale of the downland farms.
Simon Boyle, LLB, MA (Env Law)
16 December 2016