Restrictive Covenants and Other Restrictions on the Use of Freehold Land in Public Ownership
| Author | William Webster/Robert Weatherley |
| Pages | 263-273 |
INTRODUCTION
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).
POWER OF PUBLIC BODIES TO IMPOSE RESTRICTIVE COVENANTS
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;
TOWN AND COUNTRY PLANNING ACT 1990, SECTION 106 (SUBSTITUTED BY PLANNING AND COMPENSATION ACT 1991, SECTION 12)
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
642.
264 Restrictions on the Use of Land
a view to: (a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
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 supermarket
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.
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.
27.5 Planning obligations may be modified or discharged by agreement or by application to the LPA.
HIGHWAYS ACT 1980, SECTION 35
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 matters
Such covenants will be registered as local land charges.
HOUSING ACT 1985, SECTION 609
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
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