Monday, 18 July 2016

Restrictive covenants again

I have previously written on two occasions about the ‘tripping hazard’ that restrictive covenants can sometimes present when development is proposed, even if the development in question has received planning permission or is permitted development under the GPDO. [For the previous articles, see Beware of restrictive covenants (Wednesday, 13 April 2011) and Restrictive Covenants (Monday, 30 January 2012)]

Another example has recently been provided by a case in the Upper Tribunal (Lands Chamber), which is more familiarly known by its old name as “the Lands Tribunal”. This was Re Hussain, 23 Bartlett Close [2016] UKUT 297 (LC) (4 July 2016).

The applicant wished to extend her two-storey house (which forms part of a self-build housing development) by the addition of a third storey. She obtained planning permission in 2008 and renewed that permission in 2013. The proposed development comprised a roof extension to provide two additional bedrooms to create a 5-bedroom family dwelling, plus the introduction of new rooflights within the roofspace and two Juliet balconies to the rear elevation of the property to serve the rear first floor bedroom. However, the applicant was prevented from implementing the planning permission by restrictive covenants that were imposed under the original conveyance of the property in 1989.

The purchasers of houses in this development had covenanted “with the Vendor and the [Bartlett Close Residents Association Limited] for the benefit of the estate and every part of it” to observe various terms and conditions, which included the following covenants:

(5) not to enlarge or extend the house or the property otherwise than with the prior written consent of the Association and of the owners of all parts of the estate which are contiguous with the property.
(7) not to alter in any way the external appearance of the house on the Property and not to place any external ornaments on the property without the consent in writing of the Association.”
(9) no hoarding shall be erected on the property nor shall any building erection fence wall or any part of the Property be used as an advertising station or for advertising purposes of any description except for the letting or selling of the property.

These covenants were common to all the conveyances of houses in Bartlett Close, and it was agreed by the parties that this formed a building scheme. [In other words, the covenants are mutually enforceable between neighbours.]

The applicant wished to modify covenants (5), (7) and, if necessary, (9) to allow her to implement the 2013 planning permission for the extension of No.23. She applied to the Tribunal under section 84(1) of the Law of Property Act 1925 on the ground that the covenants as originally drafted would impede the reasonable use of the land unless modified as proposed, by adding at the end of each of them the words “… except in accordance with the planning permission dated 17 September 2013 with reference PA/13/01748”, and also (or alternatively) that the proposed discharge or modification would not injure the persons entitled to the benefit of those restrictions.

In opposing the application, the residents’ association argued that the covenants secured a practical benefit of substantial value or advantage by allowing them to maintain the character and ethos of the estate under the building scheme. The architect for the scheme gave evidence about the principles behind the development. He explained the background of the scheme as a self-build housing project on derelict land purchased from the local authority. The objective was to create an intimate, high density housing development with a sense of community clustered around the focal point of St Saviour’s Church. He said that the estate had changed very little over the years and the overall pattern and integrity of the built form had remained to preserve the amenity of the residents. Those changes which had occurred comprised minor detailed elements such as the addition of porches above front doors. Three objectors who were part of the original team of self-builders who constructed it and who have lived there ever since also gave evidence to the Tribunal.

The Tribunal member noted that there is a visual unity to the buildings on the estate, which are constructed from similar materials with a common brick-type and colour and slate-covered pitched roofs. In his opinion, the design concept was skilfully achieved and the estate retains its essential design characteristics, notwithstanding some minor changes. He concluded that the restrictions, by impeding the applicant’s proposed development, do secure practical benefits of advantage to the objectors by protecting their outlook and amenity. The relevant question was whether those practical benefits were substantial [i.e. have substance]. Rather as in a planning appeal, the Tribunal’s decision on this issue was “a matter of judgment and degree”.

The Tribunal’s view was that the estate was carefully designed to maximise density whilst retaining a variety of form, height and building line; but it is a delicate balance to ensure that each house owner’s amenity and outlook is protected. In the Tribunal’s opinion the proposed extension to No.23 would jeopardise that balance in a way which would change the intimate relationship between No.23 and its neighbours into an overbearing one and it is a substantial benefit to the objectors to be able to prevent this. The estate enjoys a distinctive character and ethos which was established, and has been maintained, through the building scheme and which the residents’ association has been at pains to protect. The proposed extension of No.23 would be a material change to the physical character and form of this part of the estate and the restrictions are a practical benefit of substantial advantage to the residents’ association in maintaining that character for the benefit of the estate as whole.

The applicant had failed to satisfy the Tribunal that the grounds of the application were made out, and the application was therefore refused.

This is a further example of restrictive covenants being upheld in face of an application under section 84 of the 1925 Act, despite the grant of planning permission for the development which the applicant sought to carry out. Thus, even where an LPA is satisfied that a development is entirely acceptable in planning terms, it may still fall foul of restrictive covenants, and it cannot be assumed that the Lands Tribunal will necessarily be persuaded that such covenants should be relaxed in order to enable the consented development to be carried out.



  1. My property has the benefit of two restrictive covenants that burden Bungalows either side.
    Both are ripe for development.
    One Covenant contains a clause stating that my consent cannot be unreasonably withheld.
    I believe it would be intrinsically risky to defend this one in court.
    The other document contains no such requirement for reasonableness.
    My query is, can or would a court imply a term of reasonableness where none exists ?
    If not, I am minded to dig my heels in and refuse permission for a large and obtrusive extension.

  2. I am afraid Guy Paremain is going to have to get proper legal advice if he wants an answer to this question. This will need to come from an experienced property lawyer who is familiar with the enforcement of restrictive covenants (i.e. not me.) One of my colleagues in our Property Department may be able to help, but this would require an email to our office to ascertain the availability of an appropriate member of the property law team.

  3. If the restrictive covenant had been with the council, could the planning permission itself be construed as 'prior written consent'?

  4. The short answer to Passer-by's query is "No".

    I assume he means a covenant in a title deed (as distinct from one in a section 106 agreement). But the same applies.

    As I have pointed out in response to a comment that Passer-by has left on another thread, a planning permission cannot override a restrictive covenant. Furthermore, the grant of planning permission does not imply that the covenant can be ignored or that it should be released (for example by application to the Lands Tribunal). There are numerous cases of developers coming a cropper when they sought to avoid the enforcement of a covenant or where they attempted to get it removed. I have given one or two examples in this blog, and there are others that could be cited.