Does Planning Permission Override Restrictive Covenant?

Does Planning Permission Override Restrictive Covenant?

Does Planning Permission Override Restrictive Covenant?

Planning permission on its own does not override or invalidate an existing restrictive covenant on land. The covenant will remain enforceable unless legally removed through the Tribunal.

A restrictive covenant is a private legal agreement made between landowners that places restrictions on how land can be used. It attaches to the title of the land and binds current and future owners.

Planning permission relates to getting approval from the local authority to carry out certain types of development on land.

The key thing to understand is that planning permission does not override a restrictive covenant. Some key points:

  • When considering a planning application, the local authority will not take into account any private restrictive covenants on the land. They only assess it against planning policies and rules.
  • So it is possible to get planning permission for a development that actually breaches an existing restrictive covenant on the land.
  • But getting planning permission does not nullify the restrictive covenant. It still exists and can potentially be enforced against you.
  • Carrying out a development in breach of a covenant could still result in legal action against you by the beneficiary of the covenant even if you have planning permission.
  • To fully overturn a restrictive covenant, you normally need to apply to the Lands Chamber of the Upper Tribunal to get it discharged or modified. This is a separate legal process from planning.
  • However, getting planning permission can potentially help strengthen your legal case for getting a restrictive covenant removed if it shows the development is in the public interest.

How To Get Around Restrictive Covenants

Restrictive covenants are contractual obligations that limit how a property can be used. They are found in property deeds and remain attached to the land even when it is sold.

There are several ways to get around restrictive covenants:

  • You can apply to have the restrictive covenant modified or removed through the Lands Chamber of the Upper Tribunal if you can show it is obsolete or impedes reasonable use of the land. The Tribunal will balance the covenant against factors like changed neighborhood character.
  • Negotiate a release or variation of the covenant with the beneficiary, usually a neighbor or developer. Make sure any changes are properly documented and registered with the land title. Offer compensation in exchange for their agreement.
  • Ignore an old covenant that may now be considered unenforceable due to changed conditions, but get legal advice first. Covenants can become obsolete over time.
  • Seek indemnity insurance to cover losses arising from breach of restrictive covenants. This shifts liability risk to the insurer. Carefully review policy coverage and exclusions.

How Much Does It Cost To Remove A Restrictive Covenant

Removing a restrictive covenant can be a complex and costly process. The total cost can vary from around £4,000 to over £10,000. The process is often lengthy and success is not assured. Professional advice should be sought before pursuing removal.

The main costs involved are:

  • Application Fees – £880 to apply to the Upper Tribunal (Lands Chamber) to modify or discharge the covenant.
  • Legal Fees – Typically between £2,000 – £5,000. This covers the solicitor/lawyer fees for preparing the application and representing you.
  • Compensation – This will depend on the specific circumstances, but you usually have to pay compensation to the beneficiary for loss of value. Could range from a few hundred to thousands of pounds.
  • Hearing Costs – If it goes to a full hearing, there are Tribunal fees of around £1,100.
  • Surveyor’s Report – Often required to assess the impact on property values. Approximately £500-£1,000.
  • Total Cost – Usually between £4,000 – £10,000 to remove a restrictive covenant, depending on the complexity of the case.
  • Timeframe – The process typically takes 6-12 months from start to finish.
  • Success Rate – No guarantee of success. The application must meet certain legal tests.

Should I Buy A House With A Restrictive Covenant

Restrictive covenants are written into a property’s deeds or contract by a seller, explaining what the owner can or cannot do with the property itself or land. They are legally binding obligations that are attached to the property’s title and “run with the land”. This means they apply to both current and future owners of the property.

Restrictive covenants don’t necessarily mean you shouldn’t buy a property, but you need to carefully consider the implications. Get legal advice to fully understand the covenant before committing to buy.

Some common examples of restrictive covenants include:

  • Not being allowed to make structural changes or extensions without permission
  • Restrictions on using the property for business purposes
  • Not being allowed to park commercial vehicles on the property
  • Requirements around keeping the property maintained to a certain standard
  • Limitations on keeping certain pets or farm animals

If you are considering buying a property with a restrictive covenant, there are some key things to consider:

  • Make sure you fully understand the terms of the covenant and what restrictions it places on how you can use the property. Get your solicitor to explain the covenant to you.
  • Think about whether you will be happy living with those restrictions long-term. For example, not being able to extend or make improvements could be an issue.
  • Check if there is a procedure for getting the covenant removed or varied if needed. This can be difficult and costly though.
  • Covenants may put some mortgage lenders off lending. So you’ll need to shop around for a lender who will lend.
  • The covenant may negatively impact the future resale value and marketability of the property.
  • Weigh up if the property is worth purchasing given the restrictions that come with it.

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