Planning Consents and Restrictive Covenants often “butt heads” for developers and private individuals alike. Sometimes it is not appreciated that:
- You can apply for planning permission on land you don’t own.
- You can get planning permission to build on your land but that does not over-ride the effect of restrictive covenants that burden your land.
- When planners are considering a planning application, they will only look at planning issues and the existence of restrictive covenants will not be at all relevant in their decision making process.
- If you have the benefit of a restrictive covenant, it is your responsibility to be vigilant and either enforce it or formally give permission to permit a specific modification on a case by case basis.
- If a covenant is breached repeatedly and the benefiting party does nothing about it, you “water” down the effect and can end up with a Court/Tribunal deciding the covenant is now obsolete.
It is possible to apply to either the Court or more commonly the First Tier Tribunal (Property Chamber) to modify a restrictive covenant if you have been unable to agree anything with the parties who have the benefit of that covenant.
There have been a couple of recent cases which are interesting in seeing how the Tribunal can view applications to modify.
Derreb –v- Blackheath Cator Estate Residents [2017]
Here a developer applied to the Tribunal for a modification of a covenant on a 5 acre site on which it wished to build a mix of residential houses including semi detached and flats. The local residents had been campaigning hard to try and prevent planning permission being granted.
The developer applied to discharge or modify the covenant imposed in 1956 which made it clear the land should not be used for any purpose other than a sports ground or for the erection of detached houses for private residence with the plans to be approved by the Vendor’s surveyor.
No sports use of the land had taken place since 1999 and the Tribunal noted that the land was significantly overgrown and unused. What had once been the sports pavilion had been demolished. The land was also zoned for residential development in the Local Plan. There was no Vendor from the 1956 conveyance that could now be identified.
The unusual point was that the Tribunal Hearing took place without the developer having secured any planning permission. The Tribunal application was again opposed by the local residents.
The Tribunal agreed with the developer that the covenant was obsolete as the character of the land had changed and the covenant also impeded a reasonable use of the land. However instead of discharging the covenant completely, the Tribunal modified it by permitting residential development of the land but subject to a number of conditions as to how that development must take place. Those conditions included restricting the number of dwellings that could be erected on the land and restricting access to a part of the land to pedestrians, pedal cycles and mobility scooters only.
The developer now had to juggle the position with the modified covenant with the planning application. The case confirms that you do not first have to secure your planning; but it can be a question of “be careful what you wish for”. The Tribunal is entitled to impose conditions when modifying a covenant and those conditions might not sit happily with the planning requirements.
Holden [2018]
This case is also a little unusual in that Mr Holden was applying to discharge a covenant made as recently as 2012 when he bought the property from the developer. He lived on a housing estate of around 30 houses that were subject to covenants preventing the properties from being used for any trade or business. These are common restrictions imposed by developers of residential sites.
His plot was one of the largest and he had a detached double garage and his front drive could accommodate 5-6 cars. In 2015 the Council had granted him planning permission or change of use so he could convert the garage into a dog grooming parlour. He had done so and had been running the business for a while before he made his application to the Tribunal.
His application was unopposed, but that does not mean the Tribunal will simply rubber stamp the application. The Tribunal noted that Mr Holden had entered into the covenants less than 4 years before the application, which it commented as “astonishingly recently”.
The Tribunal also noted he had secured a change of use permission and that none of the local residents had objected to his application. However it said that “those points were not in themselves necessarily enough for the application to succeed”.
The Tribunal decided to modify rather than discharge the restrictive covenant and it permitted him to use the double garage as a dog grooming parlour but only for as long as he personally owned the property and only in accordance with the permission granted by the Council in 2015.
Clearly the lack of opposition assisted Mr Holden but he still had to satisfy the Tribunal that the business use conducted by him was not likely to cause annoyance to the owners of neighbouring property. The Tribunal was content that a modification personal to him (as opposed to a discharge) would not represent a threat to the scheme of protection given to the estate by the covenants.
This case was very fact specific but it does show that even a recent covenant can be modified in the right circumstances.
If you want any help with this please contact us on drteam@herrington-carmichael.com
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
By Frankie Tierney
Partner, Head of Dispute Resolution
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