Does Planning Permission Override Restrictive Covenant? | UK Guide

Planning permission is a crucial aspect of property development in the UK. However, obtaining planning permission may not necessarily override a restrictive covenant. A restrictive covenant is an agreement between parties that restricts the use of a property. In this comprehensive UK guide, we will explore the intricate relationship between planning permission and restrictive covenants. We will outline the legal provisions, the roles of solicitors and local authorities, and discuss the process of discharge or modification of restrictive covenants.

Key Takeaways:

• The interaction between planning permission and restrictive covenants is a complex area of UK property law.
• Obtaining planning permission may not necessarily override a restrictive covenant.
• Restrictive covenants serve to protect the interests of the beneficiaries, and enforcing these covenants is crucial to maintaining the intended character of the property or neighbourhood.
• The process of discharge or modification of restrictive covenants is outlined in the Law of Property Act 1925.
• Consulting property solicitors and navigating the relevant planning and legal frameworks is crucial to ensure compliance and protect the rights of all parties involved.

Understanding Restrictive Covenants

Before exploring the interaction between planning permission and restrictive covenants, it is important to understand what restrictive covenants entail. A restrictive covenant is a legal agreement that limits the use of a property, either by prohibiting certain activities or requiring specific actions. The covenant is typically included in the property’s deeds and is binding on all future owners and occupiers of the land.

The beneficiaries of a restrictive covenant are typically individuals or organizations that have a specific interest in the land. This might include adjoining landowners, local authorities, or community groups. The covenant is enforceable by the beneficiaries, who have the right to take legal action against any party that breaches the agreement.

Whether a restrictive covenant is enforceable depends on a number of factors, including the wording of the covenant, the intentions of the parties at the time of its creation, and changes in the local area. In some cases, a restrictive covenant may become obsolete or unenforceable due to changes in the character of the neighborhood or other circumstances.

The process of discharge or modification of a restrictive covenant allows a party to apply to the Upper Tribunal (Lands Chamber) under section 84 of the Law of Property Act 1925 to have the covenant discharged or modified. The tribunal will consider a range of factors, including the original purpose of the covenant, the practical benefits of the proposed development, and the potential impact on the beneficiaries of the covenant.

Enforceability of Restrictive Covenants

As mentioned, the enforceability of a restrictive covenant depends on the specific circumstances of the case. In general, a covenant will be enforceable if it meets the following criteria:

• The covenant must be in writing and included in the deeds for the property.
• The covenant must be clear and unambiguous in its terms.
• There must be identifiable beneficiaries of the covenant.
• The covenant must provide some practical benefit to the beneficiaries.

If these criteria are met, the beneficiaries will have the right to enforce the covenant against any party that breaches its terms. This might include seeking an injunction to prevent a particular activity from taking place or seeking damages for any loss suffered as a result of the breach.

If a proposed development would breach an existing restrictive covenant, it is important to obtain the consent of the beneficiaries before proceeding. Consulting with business legal experts can provide valuable insights during this process. Failure to do so could result in legal action and potentially significant financial costs.

The Importance of Planning Permission

Before embarking on a proposed development, it is essential to obtain the necessary planning permission from the local authority. Planning permission is a legal requirement that governs what can be built on a plot of land and how it can be used. It is crucial to understand the significance of planning permission, the role of building regulations, and the process of obtaining planning permission for a proposed development.

Building regulations are the minimum standards for design and construction that must be met to ensure the safety and health of people in and around buildings. Compliance with building regulations is a separate legal requirement from planning permission, and both must be satisfied for a proposed development to proceed.

The process of obtaining planning permission for a proposed development involves submitting an application, which must be accompanied by detailed plans and specifications. The local authority will consider various factors, such as the impact of the proposed development on the surrounding environment, road networks, and the availability of services such as water, gas, and electricity. They will also consider the views of any interested parties, such as neighbouring residents or businesses.

Planning permission is not always granted, and local authorities may impose conditions that must be met before development can proceed. For example, they may insist on the construction of additional access roads or the provision of affordable housing units as part of the development. Failure to comply with the conditions may result in a revocation of planning permission.

In summary, planning permission is a crucial legal requirement that must be obtained before embarking on a proposed development. Compliance with building regulations is also required. The process of obtaining planning permission involves submitting an application and providing detailed plans and specifications. Local authorities consider various factors and may impose conditions that must be met before development can proceed.

The Relationship Between Planning Permission and Restrictive Covenant

When a proposed development is in conflict with an existing restrictive covenant, the question arises whether planning permission can override the covenant. The answer depends on various factors, such as the terms of the covenant, the nature of the proposed development, and the consent of the beneficiaries of the covenant.

It is important to note that planning permission does not automatically override a restrictive covenant. The developer must obtain consent from the beneficiaries of the covenant, or the covenant must be discharged or modified through legal means. Failure to do so could lead to legal action and the halting of the development.

The Role of Covenant Consent in Planning Permission

The starting point for any consideration of the relationship between planning permission and restrictive covenant is the terms of the covenant. The covenant may explicitly state whether planning permission can override the covenant or require the consent of the beneficiaries.

If the covenant requires consent, the developer must obtain this before proceeding with the development. The beneficiaries may agree to the proposed development, impose conditions, or refuse consent altogether. It is up to the developer to negotiate with the beneficiaries and reach an agreement that satisfies both parties.

If the negotiations fail, the developer may seek to discharge or modify the covenant through legal means. This process involves making an application to the Upper Tribunal (Land Chamber) under section 84 of the Law of Property Act 1925. The Upper Tribunal will consider various factors, such as the practical benefits of the proposed development versus the benefit of the restrictive covenant. If the Upper Tribunal is satisfied that the covenant is obsolete, impedes reasonable use of the developer’s land, or is contrary to the public interest, it may grant a discharge or modification of the covenant.

Case Study: Planning Permission and Restrictive Covenant

For example, a developer wants to build a block of flats on a plot of land that is subject to a restrictive covenant that prohibits the construction of any building higher than two storeys. The developer applies for planning permission, but the local authority rejects the application due to the restrictive covenant.

The developer then negotiates with the beneficiaries of the covenant, who refuse consent for the proposed development. The developer makes an application to the Upper Tribunal, arguing that the covenant is obsolete and impedes the reasonable use of the land. The Upper Tribunal considers the evidence and grants a modification of the covenant, allowing the construction of a block of flats up to four storeys high. In such situations, seeking advice from a litigation solicitor becomes crucial for navigating legal complexities.

The Process of Discharge or Modification of Restrictive Covenants

When a restrictive covenant stands in the way of a proposed development, the process of discharge or modification becomes necessary. The Law of Property Act 1925 provides the legal provisions for the discharge or modification of restrictive covenants.

However, it is essential to note that discharge or modification is not automatic, and the tribunal will only grant these under specific circumstances. To obtain discharge or modification, the developer must show that the restrictive covenant impedes the reasonable use of his land and that it provides no practical benefits to the beneficiaries. Additionally, the tribunal may only grant discharge or modification if it is in the public interest and does not injure the beneficiaries of the covenant.

The application for discharge or modification of restrictive covenants is made to the Upper Tribunal. The developer’s solicitor must make an application under section 84 of the Law of Property Act 1925, and the tribunal will consider the merits of the case based on the evidence presented.

It is worth noting that the Upper Tribunal has the power to modify the restrictive covenant rather than discharge it entirely. The tribunal may reduce the covenant’s extent or duration or modify its terms to enable the proposed development to take place.

It is worth noting that the discharge or modification of a restrictive covenant can have significant implications for the value of the land. The developer must consider the potential impact on the land’s value and assess whether the cost of making the application outweighs the potential benefits.

Ultimately, the discharge or modification of a restrictive covenant is a complex legal process that requires expert legal advice. Developers must carefully consider all the legal provisions, weigh the potential impact on the value of the land, and navigate the relevant planning and legal frameworks to ensure compliance and protect the rights of all parties involved.

Obsolete Restrictive Covenants

Over time, it’s not uncommon for the character of a neighbourhood to change, and some restrictive covenants may become obsolete. If a restrictive covenant no longer serves its intended purpose, it may be discharged or modified to accommodate new developments.

According to the Law of Property Act 1925, the Upper Tribunal may modify or discharge a restrictive covenant if it’s deemed obsolete, and discharging or modifying the covenant will not harm the interests of the beneficiaries. The tribunal will determine whether the covenant impedes reasonable use of the developer’s land, and if so, whether it should be discharged or modified to accommodate the proposed development.

Criteria for Deeming a Restrictive Covenant Obsolete

The Upper Tribunal considers various factors when determining whether a restrictive covenant is obsolete. One of the primary considerations is whether the covenant still serves its intended purpose. If the character of the neighbourhood has changed so significantly that the covenant no longer provides any practical benefits, it may be deemed obsolete.

Another factor to consider is whether the restrictive covenant imposes an undue burden on the developer’s land. For example, if the covenant prevents the developer from making necessary changes to the property, it may be deemed obsolete.

The Role of the Upper Tribunal

The Upper Tribunal has the power to modify or discharge a restrictive covenant under section 84 of the Law of Property Act 1925. The tribunal will consider the interests of both the developer and the beneficiaries of the covenant when making a determination.

If the Upper Tribunal finds that the restrictive covenant is obsolete, it can then discharge or modify the covenant to enable the development to proceed. However, the tribunal will not grant a modification or discharge if it would harm the interests of the beneficiaries of the covenant.

The Upper Tribunal will weigh the pros and cons of discharging or modifying the restrictive covenant to determine whether it’s in the public interest and whether it will promote the reasonable use of the land in question.

In summary, the Upper Tribunal has the power to discharge or modify a restrictive covenant if it’s deemed obsolete. The tribunal will consider whether the covenant still serves its intended purpose and whether it imposes an undue burden on the developer’s land. While discharge or modification of restrictive covenants has its advantages, it may negatively impact the interests of the beneficiaries and set a precedent for future developments.

Balancing the Public Interest and Reasonable Use of Land

When seeking planning permission for a development, it is essential to consider the impact on the neighbourhood and whether it can provide practical benefits. Restrictive covenants, which govern the use of the land, may impede some developments, but their benefits cannot be overlooked.

For example, a restrictive covenant requiring a property to be used only for residential purposes may prevent a developer from establishing a commercial establishment. However, this covenant may also maintain the character of the neighbourhood and protect the value of neighbouring properties.

When a proposed development provides practical benefits to the neighbourhood, it may be necessary to weigh these benefits against the restrictions imposed by the restrictive covenant. In such cases, property solicitors and planning authorities may play a crucial role in determining whether a development is in the public interest.

The Benefit of the Restrictive Covenant

A restrictive covenant may also offer significant benefits to the beneficiary. For example, a restrictive covenant requiring a property to be used only for residential purposes may protect the privacy and tranquillity of the neighbourhood.

It is essential to consider these benefits and weigh them against the proposed development’s practical benefits when seeking planning permission. The decision should aim to maintain a delicate balance between the public interest and the reasonable use of land.

Table: Examples of practical benefits of a proposed development

Ultimately, when seeking planning permission that may conflict with existing restrictive covenants, it is essential to balance the practical benefits of the proposed development against the benefit of the restrictive covenant and the neighbourhood’s impact. By carefully considering these factors, developers can navigate the relevant legal and planning frameworks to ensure compliance and meet the needs of all parties involved.

The Role of the Planning Authority and Local Authority

When it comes to obtaining planning permission, the planning authority and local authority play critical roles in the process. The planning authority is responsible for reviewing planning applications and deciding whether to grant planning permission, while the local authority is responsible for enforcing the planning permission once it has been granted.

The planning authority is typically the local council, but it can also be the National Park Authority or the Planning Inspectorate. When a developer wants to build on a plot of land, they must first submit a planning application to the planning authority. The planning authority will then consider the application and determine whether to grant planning permission.

The Planning Authority

The planning authority’s decision-making process is guided by a set of planning policies, which are designed to promote sustainable development and balance competing interests. These policies are set out in the National Planning Policy Framework (NPPF), which provides a framework for planning decisions in England. In Wales, the equivalent framework is the Planning Policy Wales (PPW).