Restrictive Covenants and Other Restrictions on the Use of Freehold Land in Public Ownership

AuthorWilliam Webster/Robert Weatherley
Chapter 27

Restrictive Covenants and Other Restrictions on the Use of Freehold Land in Public Ownership


27.1 This chapter is concerned with:

(a) restrictions imposed by public bodies in the exercise of statutory powers;
(b) the powers of local authorities to extinguish or override restrictive covenants;
(c) the consequences of compulsory acquisition;
(d) land held by local authorities which is subject to rights of public recreation (land either acquired or appropriated onto such purposes or held for charitable purposes).


27.2 Statutory powers exist which enable public bodies to overcome: (a) the rule which prevents obligations arising under positive covenants being enforced against a covenantor’s successor in title;1and (b) the further rule that the burden of a covenant will only pass in equity if the restriction benefits the retained land of the covenantee.2This chapter examines certain statutory powers which are liable to be relevant when it comes to the development or use of land.


27.3 This section introduces what are termed as ‘planning obligations’ which may be entered into by any person interested in land in the area of the LPA with

1Rhone v Stephens [1994] 2 AC 310.

2Tulk v Moxhay (1848) 2 Ph 774; Millbourn v Lyons [1914] 2 Ch 231; LCC v Allen [1914] 3 KB


3Which replaced Town and Country Planning Act 1971, s 52 (s 106 does not have retrospective effect and applies only to agreements entered into after 25 October 1991; such agreements will have been made under Town and Country Planning Acts in force since 1933). Section 106(1) provides that ‘any person interested in land … may, by agreement or otherwise, enter into an obligation …’. The term ‘otherwise’ refers to a unilateral undertaking whereby a person promises

264 Restrictions on the Use of Land

a view to: (a) restricting the development or use of the land in any specified way;4

(b) requiring specified operations or activities to be carried out in, on, under or over the land;5(c) requiring land to be used in any specified way;6or (d) requiring a sum of sums to be paid to an LPA, either by a specified date or dates or periodically.7Planning obligations may be conditional or unconditional or time-limited,8and will be enforceable by the LPA against the person entering into the obligation and any person deriving title from that person.9The planning obligation may also provide that the person entering into the obligation shall not be bound by it if he no longer has an interest in the land.10The planning obligation will be enforceable by injunction11although this is without prejudice to the right of an LPA to enter upon the land (on giving not less than 21 days’ notice) in order to carry out any relevant operations on the land and to recover the reasonable cost of so doing from the defaulting landowner,12and it will be an offence if any person wilfully obstructs any person acting in the exercise of such power.13Planning obligations are required to be executed as a deed and shall contain certain prescribed information14and shall also be registrable as a local land charge.15

27.4 The ability of landowners to bind their land (either by agreement or unilaterally) operates to facilitate the grant of planning permission. For instance, if the LPA is concerned about off-site infrastructure then a planning obligation may provide the Highway Authority with funding to carry out the necessary road works. The scope of section 106 of the TCPA 1990 is wide. For instance, the range of community benefits in a case involving the development of a supermarket16included the construction of a tourist information centre, a bird watching hide, and a static art feature on the site. Off-site, the developer offered park-and-ride facilities and a financial contribution of £1 million towards infrastructure costs for a nearby industrial site. Also offered was a contribution towards the provision of a crèche, a wildlife habitat on a site contiguous to the proposed development, a moving water sculpture on site and the sale to the local
to do or not do certain things (i.e. as an alternative to doing so by agreement) if, e.g. planning permission is granted. Offering a unilateral undertaking as a binding planning obligation may well operate to deal with objections at the appeal stage. In fact, LPAs are encouraged to reach agreements, and the offer of an undertaking commonly arises to overcome difficulties or even deadlock in negotiations or otherwise prevent delay.

4TCPA 1990, s 106(1)(a).

5TCPA 1990, s 106(1)(b). It is then plain that planning obligations (unlike the former planning agreements) may comprise positive as well as restrictive covenants.

6TCPA 1990, s 106(1)(c).

7TCPA 1990, s 106(1)(d).

8TCPA 1990, s 106(2).

9TCPA 1990, s 106(3).

10TCPA 1990, s 106(4).

11TCPA 1990, s 106(5).

12TCPA 1990, s 106(6) and (7).

13TCPA 1990, s 106(8).

14TCPA 1990, s 106(9).

15TCPA 1990, s 106(11).

16R v Plymouth City Council ex parte Plymouth & South Devon Co-operative Society Ltd (1993)
67 P & CR 78.

authority of land for park-and-ride facilities. The court considered all these obligations sufficiently material to the grant of planning permission in that the on-site benefits made the development more attractive and was in the public interest, and the off-site benefits also had legitimate planning purposes.17

27.5 Planning obligations may be modified or discharged by agreement or by application to the LPA.18


27.6 This section allows for the making of dedication agreements between highway authorities and district councils (in consultation with the other) and persons with an interest in land on which a building is, or is proposed to be, located, for the provision of public ways (known as ‘walkways’) over, through or under parts of the building when constructed (e.g. a shopping mall). Such agreements may make provision for a number of matters19and may include positive and restrictive covenants (i.e. in relation to maintenance and support for such walkway) which will be binding on the covenantor’s successors in title.20

Such covenants will be registered as local land charges.21


27.7 Where a local authority disposes of land held for housing purposes, the person to whom the disposal was made may enter into a covenant with the authority concerning the land (where, for instance, the authority wishes to continue to keep some form of control over its former housing stock) which may be enforced by the authority against successors of the covenantor and the requirement that the authority, as covenantee, should own or be interested in land

17The policy on planning obligations in NPPF, Annex 3, paras 203–205, provides that LPAs ‘should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition … Planning obligations should only be sought where they meet all of the following tests: necessary to make the development acceptable in planning terms; directly related to the development; fairly and reasonably related in scale and kind to the development … Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled’. Clearly, a planning obligation which has nothing to do with the development...

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