Restrictive covenants and planning permission represent two pivotal aspects of property law in England and Wales. Both play a unique role in the development, use, and transfer of land.

Whilst restrictive covenants impose limits on how land can be used by the owner, planning permission regulates the development and use of land in accordance with local and national planning policies.

Restrictive covenants and planning permission can have an impact on development projects. One of the main questions asked by developers is whether a restrictive covenant can impact planning permission and whether planning permission can override a restrictive covenant.

Restrictive covenants in property law

Restrictive covenants are binding conditions written into a property’s deed or contract by the seller to dictate certain restrictions on the use of the land.

It is important to note that restrictive covenants run with the land. This means that the obligations or limitations imposed by a restrictive covenant are not merely attached to the original parties involved in the agreement, but are instead tied to the property itself.

These covenants are intended to protect the value and enjoyment of adjoining properties by preventing activities that could be deemed undesirable by surrounding property owners.

Common examples include:

• prohibitions on building additional structures
• limitations on the type of business activities that can be conducted
• restrictions on the alteration of existing buildings.

For a restrictive covenants to be enforceable, it should be properly incorporated into the title deed. It should also clearly demonstrate that they benefit surrounding land.

The covenant must be shown to ‘touch and concern’ the land. This means it benefits the land itself rather than an individual or entity without a current interest in the land. This principle ensures that covenants remain relevant and enforceable as properties change hands over time.

A land owner or developer may apply to discharge or modify a restrictive covenant. Challenging or modifying restrictive covenants can be a complex process. It often requires a legal application to the Upper Tribunal (Lands Chamber) under the Law of Property Act 1925.

Success in these applications typically depends on demonstrating that the covenant is obsolete. This could be due to changes in the neighbourhood’s character, that it impedes reasonable use of the land without securing practical benefits to others, or that the beneficiaries consent to its discharge or modification.

Planning permission and development control

Planning permission, on the other hand, is a legal requirement for certain types of development and land use changes. It is governed by the Town and Country Planning Act 1990 and subsequent legislation.

The purpose of planning permission is to regulate development within a local authority area. It ensures that land use and development align with local planning policies and national regulations. It aims to balance economic development with environmental protection and public interests, ensuring sustainable land use.

Obtaining planning permission requires submitting an application to the local planning authority, detailing the proposed development and its expected impacts.

The local planning authority then assesses the application against local planning policies, national regulations, and any comments from the public or statutory consultees. Considerations include the development’s impact on the local environment, traffic, and community, as well as alignment with strategic development plans.

Developments that fail to secure the necessary planning permission may be subject to enforcement actions, including orders to alter or remove unauthorized developments. However, applicants have the right to appeal planning decisions to the Planning Inspectorate, providing a secondary avenue for review.

Restrictive covenants and planning permission

While restrictive covenants and planning permission operate within different legal frameworks, their paths often intersect in property development.

A question often asked is whether planning permission can override a restrictive covenant. Obtaining planning permission does not override existing restrictive covenants, nor does compliance with restrictive covenants guarantee planning approval. Developers must navigate both hurdles to proceed with their projects legally.

In some cases, a development meeting local planning criteria may still be hampered by a restrictive covenant.

Similarly, a project compliant with restrictive covenants may face obstacles in obtaining planning permission due to broader community or environmental concerns.

This dual requirement underscores the importance of thorough due diligence and legal advice from property solicitors in property development, ensuring both statutory and contractual obligations are met.

How can ARC Costs assist?

If you require more information on restrictive covenants and planning permission, contact us today to speak to a solicitor in our network.

In addition to introducing you to a solicitor, we can also assist in the recovery and negotiation of legal costs in land dispute cases, whether you are the paying or receiving party.

ARC Costs are highly experienced in advising and assisting with costs issues and disputes in different areas of law. As Costs Draftsman and Costs Lawyers, we can assist in your Commercial Litigation Costs issues.

If a costs award has been made, allowing you to recover costs from your opponent, we can assist with preparing a Bill of Costs on your behalf to ensure maximum recoverability. We can also assist in Costs Negotiations and represent you at detailed assessment proceedings which can determine the amount of costs you may be able to recover.

If you have been ordered to pay costs to your opponent, we can assist in disputing costs which may be sought and which you may deem to be excessive and unreasonable. We can do this by way of preparation of  Points of Dispute and also through negotiations to ensure you will only pay for costs which are reasonably incurred and not exaggerated.

Should you wish to discuss your costs query with us, please contact us on 01204 397302 or via email at info@arccosts.co.uk. Alternatively, you can complete our online query form and we will contact you to discuss your query further. We can provide expert legal advice on costs in our free, no obligation initial consultation.

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