Malcolm ZoppiMon Oct 23 2023

Does Planning Permission Override Restrictive Covenant? A Solicitors Advice

While planning permission grants permission to develop or change a property, restrictive covenants are legal agreements that limit how the land or buildings can be used. They are often put in place to protect the interests of the surrounding properties or neighborhoods.

does planning permission override restrictive covenant

Planning permission and restrictive covenants are two legal concepts that property owners and developers must understand before making any changes to their land or buildings. While planning permission grants permission to develop or change a property, restrictive covenants are legal agreements that limit how the land or buildings can be used. They are often put in place to protect the interests of the surrounding properties or neighborhoods.

In this section, we will explore whether planning permission has the power to override a restrictive covenant. We will delve into the relationship between planning permission and restrictive covenants and examine the implications that this may have on proposed developments.

Key Takeaways:

  • Planning permission and restrictive covenants are legal concepts that property owners and developers must understand.
  • Restrictive covenants limit how the land or buildings can be used and are often put in place to protect the interests of the surrounding properties or neighborhoods.
  • The relationship between planning permission and restrictive covenants is complex and requires careful consideration before making any changes to the property.
  • While planning permission does not always override a restrictive covenant, certain circumstances may warrant its discharge or modification.
  • Consulting property solicitors and engaging with local authorities is advised to navigate the complexities of these legal matters.

Understanding Restrictive Covenants and Planning Permission

Restrictive covenants are legal agreements that limit the use of a property owner’s land. They are typically imposed by the property seller or developer and are intended to maintain the character and value of the neighborhood. The restrictions may include limitations on the type of construction, business activities or alterations that can be made to the property.

On the other hand, planning permission is granted by local authorities to ensure that any proposed developments are in line with local and national planning policies. When applying for planning permission, the authorities take into account factors such as the impact on the environment, traffic, and neighboring properties.

For a proposed development to go ahead, both planning permission and compliance with any existing restrictive covenants are required. Restrictions that were put in place before a property was sold or developed will remain enforceable, and it is up to the buyer or developer to ensure that the proposed changes are within the limits of the respective covenant.

When considering whether a proposed development is a reasonable use of the land or not, the local authorities will look at a range of factors including the surrounding area, the type of development proposed, and the impact on neighbors. If a proposed development does not comply with planning policies, it will not be granted planning permission and cannot proceed.

One crucial aspect to consider when dealing with restrictive covenants and planning permission is their enforceability. A restrictive covenant is enforceable as long as it meets certain criteria such as being reasonable, having a clear benefit to the property owner, and not being against public policy. If any of these criteria are not met, the covenant may be unenforceable.

Therefore, it is important for property owners and developers to have a clear understanding of both planning permission and restrictive covenants to ensure compliance with the law and the reasonable use of the land.

The Impact of Planning Permission on Restrictive Covenants

Planning permission and restrictive covenants are both legal tools that can affect the development of a property. While planning permission concerns the reasonable use of land, restrictive covenants can limit the use of the land in accordance with the intentions of the parties involved. But can planning permission override a restrictive covenant?

The answer is not straightforward and depends on the specific circumstances of each case. In general, planning permission does not override a restrictive covenant automatically. However, certain scenarios may warrant the discharge or modification of the covenant to allow for the proposed development.

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One such scenario is when the restrictive covenant is deemed obsolete. This may occur when the purpose of the covenant has become irrelevant or impossible to achieve due to changes in the character of the neighbourhood or other external factors. In such cases, the beneficiary of the restrictive covenant may agree to its discharge, or the court may order its modification or release.

Another scenario is when the proposed development is of significant benefit to the beneficiary of the restrictive covenant. In such cases, the beneficiary may agree to discharge or modify the covenant in exchange for compensation or other benefits. For example, if a proposed development would increase the value of neighbouring properties, the beneficiary may be willing to release the covenant in exchange for a share of the increased value.

It is essential to note that the discharge or modification of a restrictive covenant requires the agreement of all parties involved, including any beneficiaries and the developer. It is also worth considering that the discharge or modification of a covenant can have implications beyond the proposed development, such as impacting neighbouring properties or affecting the enforceability of other covenants.

In summary, while planning permission does not override a restrictive covenant automatically, it may be possible to discharge or modify the covenant in certain circumstances. The beneficiary of the restrictive covenant may agree to its discharge or modification if it is deemed obsolete or if the proposed development is of significant benefit. It is crucial to obtain legal advice and engage in negotiation with all parties involved to navigate the complexities of this legal matter.

Dealing with Restrictive Covenants and Planning Permission

When it comes to dealing with restrictive covenants and planning permission, there are several things to consider. Property owners and developers may need to obtain covenant consent, negotiate the release or variation of a covenant, or object to a proposed development. In some cases, it may be necessary to discharge or modify a restrictive covenant to proceed with a proposed development.

Covenant Consent

Before any development can take place, it may be necessary to obtain covenant consent from the beneficiary of the restrictive covenant. The consent may be granted in writing and may require payment of a fee. It is also possible to negotiate the terms of the consent to ensure that the proposed development does not conflict with the restrictive covenant.

Release or Variation of a Covenant

In some cases, it may be possible to negotiate the release or variation of a restrictive covenant. This may involve paying a sum of money to the beneficiary or making other concessions. It is important to obtain legal advice before entering into any negotiations.

Objecting to a Proposed Development

If a proposed development conflicts with a restrictive covenant, the beneficiary of the covenant may object to the development. This could lead to a legal dispute, which may need to be resolved in court. It is important to seek legal advice before proceeding with any development.

Discharge or Modification of a Restrictive Covenant

In some cases, it may be possible to discharge or modify a restrictive covenant. This may be the case if the covenant is no longer relevant or if changes in the character of the neighborhood warrant a discharge or modification. It is important to seek legal advice before attempting to discharge or modify a restrictive covenant, as this can be a complex legal process.

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In conclusion, dealing with restrictive covenants and planning permission can be complex and requires careful consideration of the legal implications. Whether it is obtaining covenant consent, negotiating the release or variation of a covenant, objecting to a proposed development, or seeking a discharge or modification of a restrictive covenant, it is essential to obtain legal advice and engage with local authorities to ensure the smooth and legal development of the property.

The Relationship Between Planning Permission and Restrictive Covenants

In conclusion, it is essential to understand the intricate relationship between planning permission and restrictive covenants. While planning permission does not always override a restrictive covenant, certain circumstances may warrant its discharge or modification.

Property owners, developers, and beneficiaries must be aware of the implications of both planning permission and restrictive covenants to ensure the reasonable use of land and the overall development of the property or neighborhood. It is advised to consult with property solicitors and engage with local authorities to navigate the complexities of these legal matters.

It is crucial to note that any changes in the character of a neighborhood must be considered when dealing with restrictive covenants. The development of a particular property may have a significant impact on the surrounding area, and in such cases, it is necessary to refer to planning permissions and restrictive covenants.

Furthermore, the discharge or modification of a restrictive covenant may require negotiations with the relevant beneficiary. It is crucial to approach this process with care and to understand the benefits the beneficiary may receive from the restrictive covenant.

Objecting to proposed development is also an option available to those impacted by proposed developments. However, it is essential to understand the role of planning permission and restrictive covenants in such instances and the likelihood of their success.

In summary, the relationship between planning permission and restrictive covenants is complex and requires careful consideration. By understanding the implications of both, it is possible to navigate the legal complexities and ensure the reasonable use of land for all parties involved.

FAQ

Does planning permission override a restrictive covenant?

Planning permission does not automatically override a restrictive covenant. The enforceability of a covenant depends on various factors, including the wording of the covenant, changes in circumstances, and the specific legal context.

What are restrictive covenants and planning permission?

Restrictive covenants are legal agreements that restrict the use or development of land. Planning permission, on the other hand, is the consent granted by the local planning authority for proposed developments, ensuring they meet certain criteria and regulations.

Can planning permission override a restrictive covenant if it’s reasonable?

Planning permission can potentially override a restrictive covenant if it is deemed reasonable and necessary for the proposed development. However, this would generally require legal proceedings and the involvement of the relevant authorities.

What happens when a restrictive covenant is deemed obsolete?

If a restrictive covenant is deemed obsolete, it may be discharged or modified through legal proceedings. This typically involves proving that the covenant no longer serves a valid purpose or is no longer relevant in the current context.

Can I object to a proposed development if it violates a restrictive covenant?

Yes, as a beneficiary of a restrictive covenant, you have the right to object to a proposed development that violates the terms of the covenant. However, the ultimate decision rests with the relevant authorities, who will consider the merits of the objection and other planning considerations.

How can I negotiate the release or variation of a restrictive covenant?

Negotiating the release or variation of a restrictive covenant typically involves engaging with the party benefiting from the covenant and reaching a mutual agreement. This may require legal assistance and careful consideration of the potential impacts and benefits of the proposed changes.

What are the steps to discharge or modify a restrictive covenant?

The steps to discharge or modify a restrictive covenant involve making an application to the relevant authorities, providing supporting evidence and arguments, and attending legal proceedings if necessary. It is advisable to seek professional advice to navigate this process effectively.

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Disclaimer: This document has been prepared for informational purposes only and should not be construed as legal or financial advice. You should always seek independent professional advice and not rely on the content of this document as every individual circumstance is unique. Additionally, this document is not intended to prejudge the legal, financial or tax position of any person.

Disclaimer: This document has been prepared for informational purposes only and should not be construed as legal or financial advice. You should always seek independent professional advice and not rely on the content of this document as every individual circumstance is unique. Additionally, this document is not intended to prejudge the legal, financial or tax position of any person.

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Get the specialist support you need

Whether you require specialised knowledge for your business or personal affairs, Gaffney Zoppi can support you.