Restrictive Covenants - Planning and Compulsory Purchase

AuthorWilliam Webster/Robert Weatherley
Chapter 31

Restrictive Covenants – Planning and Compulsory Purchase


31.1 Restrictive covenants operate to achieve a considerable measure of control over the use or development of the burdened land. Such restrictions also operate independently of ordinary planning controls and although covenantees may be unable to prevent the grant of planning permission, they are nonetheless in a strong position to obstruct or even prevent development in breach of covenant by making it necessary for developers to seek orders for the relaxation of covenants restrictive of the use or building on land under the provisions of section 84 of the Law of Property Act 1925 (see para 30.6). Moreover, it will also be far more practical to enforce breaches of covenant by bringing a claim for an injunction rather than to await decision-making by the LPA as to whether enforcement proceedings should be brought for a breach of planning control.

31.2 In some cases, therefore, developers not only have to obtain planning permission but also have to overcome objections from covenantees with the benefit of enforceable covenants over the use and development taking place on neighbouring land. What it means is that in order to clear their title, covenantors either have to come to terms with objectors or else embark upon a prolonged and costly litigation against those who enjoy the benefit of such covenants preventing use changes and/or development. It might be added that in some cases use changes or development otherwise in breach of covenant may nonetheless be permissible under the planning regime without the necessity for an application for planning permission.1

31.3 A grant of planning permission will not trump an allegation of breach of covenant or otherwise necessarily require the UTLC to discharge or modify a restrictive covenant. The grant of planning permission is merely a circumstance

1Permitted development rights granted by a development order (see the Town and Country

Planning (General Permitted Development) (England) Order 2015 (2015 Order) (SI 2015/596), whereby planning permission is granted for classes of development thus avoiding the need for an express application for planning permission to be made to the LPA (although such permission may be withdrawn by a direction made under art 4). Further, no development is involved by a change of use of a building or land from one purpose to another within one of the...

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