Can local council remove restrictive covenant?

manclass_2

Hi All, am fairly new to posting but have an urgent question regarding a planning committe meeting taking place on Tues

The council owned a plot of land that it sold to developers, and in order to pass planning permission it was insisted that 4 properties would have variations(?) in the manner of a restrictive covenant to stop any additional building (shed, fence, conservatory etc). This was due to them being so close to the boundary walls of the bungalows that had been there for 25+yrs and the new properties were to be 1 storey dwellings. The council insisted on the variation before passing planning permission

The new properties were only finished within the last 12 months, and one of those with the covenant only purchased in Jan this year so all pretty recent.

They have applied to local council for a) a fence which we have no objections and b) removal of variation which is the covenant regarding building restrictions which they say will hinder them re-selling the property.

I was always under the impression you had to apply to the Land Registry, that local council couldn't just remove? But the local planning officer has said he thinks it will pass and be lifted as 'laws have changed' even though the same planning dept insisted on it less than 2 yrs ago

It is going to a local council meeting on Tues as Parish council have objected as have several residents in the original bungalows, as the last thing they want is even closer buildings to their houses which are now totally overlooked, to the point they have to keep curtains or blinds closed 24/7 because the houses can see straight into their living area

The whole point of the restriction was to pass planning permission so how can they now take it off just like that?

Any help and advice would be hugely appreciated!

Debt_Free_Chick

manclass wrote: »

I was always under the impression you had to apply to the Land Registry, that local council couldn't just remove?

No - the LR doesn't have the power to remove a restrictive covenant. The only party who can remove/amend an RC is the party that imposed it in the first place. It sounds as though the Council imposed the RC so only they can remove it. (The LR's only involvement is to record the removal of the RC on the title deed, once they're informed of it)

But the local planning officer has said he thinks it will pass and be lifted as 'laws have changed' even though the same planning dept insisted on it less than 2 yrs ago

I can only imagine it's the changes to the planning law which now mean that the RC is inconsistent with what constitutes development. There were some changes to planning law last year (Oct 08, I think) which made certain types of development easier, by doing away with the need to get PP.

It is going to a local council meeting on Tues as Parish council have objected as have several residents in the original bungalows, as the last thing they want is even closer buildings to their houses which are now totally overlooked, to the point they have to keep curtains or blinds closed 24/7 because the houses can see straight into their living area

The whole point of the restriction was to pass planning permission so how can they now take it off just like that?

It sounds as though the RC includes a no fence clause, so the RC would have to be removed to accommodate the fence. Surely a fence is going to improve privacy, though?

If there were then a shed or conservatory behind the fence, would this make any difference?

Worth bearing in mind that those applying for PP and removal of the RC only want the same options (rights, if you like) that others have with regard to the improvement of their property

Richard_Webster

OP needs to investigate exactly what this is.

It could be:

1. A restrictive covenant in the proper sense. A landowner can sell land a and when he does he can impose covenants as to how it is used. Those get registered against the title. The covenants can later be released by all those who are entitled to benefit from the covenants. This would be the Council if it sold the land and imposed the covenants, but also anyone else who can show he has the benefit of such covenants. This can get quite technical - unlikely bungalow occupiers can do anything but one of the other owners of the new houses might be able to enforce the covenants and could object and threaten enforcement. If the Council were sensible they would have made sure that the benefit of the covenants did not pass when they sold off the land.

2. s106 Planning Agreement between Council and builder. This can be varied by a subsequent agreement between the Council and the current landowner.

3. Not a separate agreement at all but simply planning conditions taking away the normal "permitted development" allowances for small extensions etc.
These can be varied by a later planning permission removing the need to comply with them and if the Council give such a permission there is nothing anyone can do about it.

manclass_2

Many thanks for the quick reply!

Basically the council owned the land, sold to developers but only granted planning permission for the houses to be so close to the bungalows based on there being no further developement closer to the boundaries for the houses built adjacent to the bungalows - doesn't sound like a big deal but having the possibility of an extension so close you can hand each other a cup of tea through the window would be a push too far for my mum (whose bungalow is one of the originals)

She doesn't object to a fence at all and infact is all for it, as you say the extra privacy, its the worry that they could build so close that every last bit of her garden and back of house is 100% overlooked combined with possible extra noise. None of the bungalow owners understand how they could get planning permission for 1 storey dwellings which I know is irrelevant but how can they grant it on one condition then remove the said condition just over 2 yrs later?

Unfortunatley, when the houseowner went around the bungalows to ask if they would allow fence (everyone said yes) they also told everyone that if they said no to the removal of variation they would make their lives hell and said houseowner now spends at least 5hrs a day stood at their window staring at my mum's conservatory (in her words, to show her she wont be messed with and to make her life hell for objecting which is more than anything) My mum really isn't bothered by this intimidation or the comments deliberatley made every time she goes into her back garden as she knows she is only doing it to get her to drop her objections, however the parents of the children she minds are getting uneasy knowing this woman is stood just staring in where the children play all day. No point to mentioning this only to show the houseowner has a bit of a strange idea of how to persuade your neighbours into getting them to agree to your planning application!

manclass_2

Richard, sorry didn't see your reply before posting.

This is what is states on the planning notice

Variation of condition: Vary condition 7 (permitted development restrictions) of planning permission 13/05/0958P to remove plot 28 from the condition.

Richard_Webster

Richard, sorry didn't see your reply before posting.

This is what is states on the planning notice

Variation of condition: Vary condition 7 (permitted development restrictions) of planning permission 13/05/0958P to remove plot 28 from the condition.
Today 9:39 AM

So, as I suspected, it is not about restrictive covenants, but planning conditions.

manclass_2

ahh ok, so what does this actually mean in reality - what is a planning condition and how is it that it can be removed after the event? Just makes no sense why have it in the first place as a condition of plannign permission if it can be removed so easily?

And how does it work regarding the new permitted development permissions that states extensions not within 7m of rear boundary when the garden itself is already less than 7m long for example

Richard_Webster

Variation of condition: Vary condition 7 (permitted development restrictions) of planning permission 13/05/0958P to remove plot 28 from the condition.

They have applied for planning permission to vary a previous planning condition. As long as they go through the right procedure the council can grant this and the condition will be removed.

Lobby your local councillors over the point.

manclass_2

Thank you so much for your help!

I am going to draft a letter for her to read out tomorrow just re-iterating the privacy issue should the condition be removed, but that she is more than happy for them to have a fence, shed, greenhouse as that has no impact etc and hope that along with the other neighbours similar views and that of the Parish council objecting it 'may' be turned down.

Am not too hopeful based on the planning officers comments, now understanding exactly what this variation is, so will let mum know the chances of being refused are slim.

Thank you again!

planning_officer

The original restrictive condition obviously precluded the erection of any outbuildings in the curtilages of the dwellings - they are applying to remove the condition insofar as it relates to Plot 28 (which would then allow the erection of an outbuilding within the curtilage of Plot 28, subject to complying with the permitted development criteria contained in Class E of the Town and Country Planning (General Permitted Development) Order 1995, as amended in 2008.

Basically, permitted development legislation changed on 1 Oct 2008 and outbuildings are more strictly controlled, in terms of how tall they can be if they are located close to a boundary - so whilst the condition may have been considered necessary 2 years ago, it may be, in light of the changed legislation, that the Council no longer consider it necessary - so it would then be perfectly reasonable to vary the condition.

manclass wrote: »

And how does it work regarding the new permitted development permissions that states extensions not within 7m of rear boundary when the garden itself is already less than 7m long for example

The condition only relates to outbuildings, not extensions. So, any future extensions would be subject to complying with the relevant permitted development criteria - which, as you say, stipulates that extensions cannot be closer than 7m to the rear boundary (although that only relates to two storey extensions - not single storey ones).

johnno15

in the area where I own a house , all the properties have s restrictive covenant s on them , stating that they are for family use only , but in recent years these property are being bought and turned in to multi students lets , is there any thing I can do to stop this