You should be aware that that your local planning authority is usually not interested in restrictive covenants as they relate to legal rights not planning issues.
Although obtaining planning permission does not guarantee you will succeed in the Upper Tribunal, the existence of planning permission is useful as this demonstrates to the Upper Tribunal that you will be building the property lawfully. There are also similar factors that both the planning authority and the Upper Tribunal will look at so obtaining planning consent will be of assistance.
Where planning consent is of particular assistance is under a little known section of the Housing Act 1985. Section 610 provides that where planning permission has been granted for the conversion of the property into into two or more separate dwelling houses instead of a single dwelling house then the Upper Tribunal may vary the terms of the restrictive covenant to allow building.
In another case where the council allowed planning permission the council refused to waive a restrictive covenant that they had which prevented building. The Upper Tribunal took the view that the grant of planning permission by the council was evidence that the “practical benefits” secured by the covenant were not a substantial advantage to the council. The Upper Tribunal therefore varied the restrictive covenant to allow building.
To summarise we can say that although the law relating to restrictive covenants is separate from the system of planning control, planning will often have varying degrees of usefulness.
- On the first level it generally points towards what you are doing being as reasonable.
- If you want to sub divide the property then you may rely on Section 610.
- If the council has granted permission but also has the benefit of the covenant and then refuses to waive the covenant you may claim that they have effectively waived their right to enforce the covenant.
Call Jonathan Kenwright on 01242 285855.