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Restrictive Covenants - Planning and Compulsory Purchase

Document Cited authorities 13 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages335-337
Chapter 31


Restrictive Covenants – Planning and Compulsory Purchase

PLANNING

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

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