Restrictive Covenant - My right to object to Planning Permission

anjaip

Has anyone been faced with a restrictive covenant on thier property.

I recently bought a house with a road to the front but the land behind my house is owned by the house next door.

The owner of the property (who actually doesn't live there) recently applied for planning permisson to build another house behind theirs which would completely block out all light to my house.

I objected to the council (as did 23 other residents in the neighbourhood) and the permission was refused.

Today I received a letter from the neighbouring owner solictors pointing out that my land holds a restrictive covenant that prevents me from objecting to any planning permisison for the land adjacent, and if I do not remove my objection they will claim damages, they may claim damages in any case.

Its not clearly stated in the deeds that this is the case, but if I assume it is (and I'll check next week) can a Restrcitive Covenant deny me basic "right to light"???

I figure I'll remove the objection "as a gesture of goodwill" but as 23 others also objected it'll be impossible for them to claim my objection caused the planning permission to be refused...........Any thoughts?

linlin_3

I'd be interested to know the exact wording of the restrictive covenant. If it does imply you can't object, I'd guess your house, the neighbour's house and the land behind was once part of the same plot.

I've used a restrictive covenant to my advantage in the past and those dealings it was completely seperate to planning permission - so anyone could get planning for anything, but unless I signed a Deed of Release, nothing could be built. Great fun to have one up on developers!

Back to your case........it may be that your rc falls foul of the unfair terms act. Get in touch with trading standards, or the consumers association and ask about those terms, also speak to your local councillor.

I'd also get in touch with the solicitor who handled the purchase of your house. He should have pointed out any restrictions on your deeds at time of purchase.

matto

Interesting situation. I'm not sure there's anything you can do. I'm not sure you can retract your objection, but given the level of opposition it doesn't seem that even if you could anything would change. You could give an undertaking either to not object at the appeal stage. Councils should automatically consider the issue of light and other loss of amenity in determining planning permission without requiring it to be drawn to their attention.

I don't think unfair terms legislation will help. The full title of the legislation is unfair terms in consumer contracts. As you no doubt went through a solicitor I don't see that this counts as a consumer contract.

Debt_Free_Chick

There are two separate issues here.

Firstly, you have a right to comment on any planning application, even if it does not affect you - anyone has this right.

Secondly, you have a restrictive covenant, which is a private agreement between you and the other party named. My understanding is that a restrictive covenant is legally binding on the parties concerned and it overrides your (statutory) right to comment on planning applications.

Quite possibly, the other party can claim damages from you - but this would have to be on the basis that your comment on the planning application actually caused "some damage". So if, for example, PP was refused because of your objection, then they might have a case. However, I think this is unlikely - PP can only be refused on a relevant planning condition and "right to light" is not one. From a planning point of view, there is no "right to light" (although one might acquire such a right in common law, over a period of time).

Look at the Decision Notice which refuses planning permission - it will list the reasons why permission was refused. This would be your defence against any claim for damages.

Can you withdraw your objection? Not sure - possibly, but there seems little point as the decision has been made. If you are able to withdraw it, then it will take it out of the public domain, but it won't affect the Decision Notice and it won't rescind the refusual. In short, it will "achieve nothing" - but you perhaps should withdraw it, if it's possible, to show that you intend to abide by the RC.

Its not clearly stated in the deeds that this is the case, but if I assume it is (and I'll check next week) can a Restrcitive Covenant deny me basic "right to light"???

Although this might be the end result, unfortunately (and it depends on the precise wording), the RC simply prevents you from objecting to any planning application in relation to the adjacent land - whatever the reason.

I would backtrack on this PDQ as - from what you've posted - the other party is unlikely to let this go and you could get involved in lengthy, expensive exchanges between solicitors (you will need one, if they take this further) and possibly a writ for damages!!

HTH

lush_walrus

Debt_Free_Chick wrote: »

PP can only be refused on a relevant planning condition and "right to light" is not one. From a planning point of view, there is no "right to light" (although one might acquire such a right in common law, over a period of time).
HTH

I might be completely wrong on this and as I come from an architects point of view (I have had to prove through light diagrams in the past to a planner that our proposal would not effect someones right to light find it strange if it is not the case), but my understanding of the Rights of Light Act 1959, is that actually planners do have to take into account the act and can't just give planning permission that should the applicant go ahead and construct will effectively break the law.

My understanding is that if continuous light has been present for 20 years, with less than 1 year of it being blocked, then the property attains the right to continue enjoying that light and a new construction can not be placed in such at way to prevent that. And should someone obstruct that, the first place of call is with the council themselves, who serve notice.

Like I say I could be wrong, but certainly when training as an architect we were made aware of the rights of light act, and I would definately consider it to be very bad practice to design something that would prevent someones light (view is something completely different) as I said above I have had a situation where a planner has taken it into account when dealing with our application.

Debt_Free_Chick

lush_walrus wrote: »

I might be completely wrong on this and as I come from an architects point of view (I have had to prove through light diagrams in the past to a planner that our proposal would not effect someones right to light find it strange if it is not the case), but my understanding of the Rights of Light Act 1959, is that actually planners do have to take into account the act and can't just give planning permission that should the applicant go ahead and construct will effectively break the law.

Complex, innit?

My understanding is that any "Right to Light" is a common law issue. So that the Planning Authority may end up granting planning permission, where another party's right to light is affected. It is then up to the affected party to pursue the developer! I understand that any consideration of Right to Light from a planning viewpoint, has to based on how it would affect "the neighbourhood" rather than any one particular neighbour I am merely a Parish Council Clerk who tries to guide the Parish Council on making comments on Planning Applications (a thankless task, I might add!)

This does not make me an expert, however .... Planning Regulations are a complete minefield!!!

The Communities & Local Government Department has some guidance.

My understanding is that if continuous light has been present for 20 years, with less than 1 year of it being blocked, then the property attains the right to continue enjoying that light and a new construction can not be placed in such at way to prevent that. And should someone obstruct that, the first place of call is with the council themselves, who serve notice.

Agreed - but it's a common law right, which can only be enforced by the affected party seeking an injunction

Like I say I could be wrong, but certainly when training as an architect we were made aware of the rights of light act, and I would definately consider it to be very bad practice to design something that would prevent someones light (view is something completely different) as I said above I have had a situation where a planner has taken it into account when dealing with our application.

Bad practice, maybe but I don't think that the Local Planning Authority can refuse an application, simply because one neighbour is affected. That neighbour might be able to pursue the developer for damages - but I'm not sure that it would be valid reason for refusing planning permission.

Happy to be wrong - as I'll learn something

lush_walrus

Wow what an interesting issue (well it's become interesting thanks to this thread!!!!) Thanks for your insight Debt_Free_Chick...It's amazing how these things are so unclear to everyone involved!!!!

I might have a try with the planners we are dealing with at the mo for their insight...And come back with what they say, this feels a bit like finding out Father Christmas isn't real all over again!

What a scary prospect to think someone can just come along and block your light out! I guess as long as it isn't on the party wall, it sounds from your experience like it's all up for grabs!

planning_officer

Mmm complex indeed! Well from a planners point of view, a common law issue such as 'right to light' is not taken into account whatsoever in determining a planning application... however, the whole overshadowing/ loss of light to priinciple rooms issue IS a planning issue, therefore although the 'right to light' is seldom referred to by planners (other than to advise neighbours it is something they would have to see a solicitor about!) all local plans have policies regarding loss of light and overshadowing... and in borderline cases we get out the trusty light calculation book to calculate exactly how much light a potential development will block from a neighbours window...!!

pboae

I am not sure about this, but wasn't there some new rules under discussion about new buildings or developments not being allowed to interfere with renewable energy sources (i.e. solar panels)? If so, it would be worth paying a few thousand for solar water heating system, if it stopped a development that would ruin your house.

olly300

linlin wrote: »

I'd be interested to know the exact wording of the restrictive covenant. If it does imply you can't object, I'd guess your house, the neighbour's house and the land behind was once part of the same plot.

Back to your case........it may be that your rc falls foul of the unfair terms act. Get in touch with trading standards, or the consumers association and ask about those terms, also speak to your local councillor.

Restrictive Covenants fall under the Law of Property Act 1925 and the only way to get them changed is to go to the Lands Tribunal. http://www.landstribunal.gov.uk/. However planning law overides any Restrictive Covenant that allows building on land.

Therefore the OP neighbour is being unreasonable because if a planning officer decides after looking at the site that permission cannot be granted then it's nothing to do with the OP.

As suggest all the OP can do is write a letter after checking the full meaning of the convenant saying they will not object at appeal stage or again in future. As there are 23 other objections it's unlikely that the neighbour will get planning permission with ease for anything they plan to build on the land as other people in the local area will be keeping a close eye on the neighbour.

bostin

OP - as a planner I've had a couple of objections subsequently withdrawn when the objectors have realised that they have a covenant restricting their right to object to an application. One came back stating instead that they did not support the application which seemed to be a good play of words to get around the situation.
HTH
Bost