restrictive covenent

andrewf75

Hi all,

We plan to build an extension which is completely fine by the current guidelines and doesn't require planning permission. However, there is a restrictive covenant in the deeds stating that we need consent from the council (previous owners of the house) before making any alterations. As I understand it, we need this consent for it to be above board despite the fact that what we plan to do is "permitted development" and doesn't require planning permission.

My question is if I just ask the council to give me a letter of consent, is that legally binding in the unlikely event of any problems? Or do I need to get a solicitor on the case? What exactly do I need from the council?

Would be really grateful for any advice if anyone knows the answer!
Thanks
Andy

Strapped

andrewf75 wrote: »

Hi all,

We plan to build an extension which is completely fine by the current guidelines and doesn't require planning permission. However, there is a restrictive covenant in the deeds stating that we need consent from the council (previous owners of the house) before making any alterations. As I understand it, we need this consent for it to be above board despite the fact that what we plan to do is "permitted development" and doesn't require planning permission.

My question is if I just ask the council to give me a letter of consent, is that legally binding in the unlikely event of any problems? Or do I need to get a solicitor on the case? What exactly do I need from the council?

Would be really grateful for any advice if anyone knows the answer!
Thanks
Andy

It sounds like "permitted development" rights have been removed by the restrictive covenant. You may need to apply for planning permission, depending on what it says exactly.

Yorkie1

Permitted development rights relate to planning law.

A restrictive covenant relates to the property itself and is completely unrelated to planning law. A previous owner of the land has imposed this restriction to control separate matters.

I therefore don't think you contact the planning department; I think you should contact the legal department enquiring what the process would be if you sought their permission under a restrictive covenant. What would be the timescale, and the costs?

The alternative would be to go ahead without seeking permission, and to purchase an indemnity policy to cover the breach. Bear in mind that you may find this a problem whenever you come to sell - whether insurmountable or otherwise - as you will be unable to evidence compliance with the covenant. I don't think that there is any time limit for the owner of a restrictive covenant to enforce it (unlike planning).

andrewf75

Thanks
The extension clearly doesn't require planning permission as it is well within the guidelines, so it makes sense that seperate consent under the covenant is needed. Will contact the legal department of the council.

Yorkie1

I should also have said that, having spoken to the council, even theoretically, you will not be able to get an indemnity insurance against the breach if you subsequently decide to go ahead without getting the permission (assuming you don't contact them anonymously and give no traceable details).

andrewf75

when we bought the property earlier this year we took out indemnity insurance because there was no permission for the existing conservatory (which we are now planning to replace with an extension). Would that cover us? or only previous breaches?

Yorkie1

I don't know. I can't see your policy to tell whether it's in relation to breach of planning laws or breach of restrictive covenant.

Either way, I suspect (but do not know as I cannot see your policy) that it might relate only to that particular development.

If you do different / further development that might invalidate it in any event.

You need to read your policy and look back through your old correspondence from your solicitor when you bought (you did keep that, didn't you?). That may explain it.

Doozergirl

andrewf75 wrote: »

when we bought the property earlier this year we took out indemnity insurance because there was no permission for the existing conservatory (which we are now planning to replace with an extension). Would that cover us? or only previous breaches?

Call your solicitor. An indemnity policy can either cover the next purchaser or all future purchasers.

I suggest that any conversation you have with the council to start with doesn't mention the exact house address, for fear of voiding the existing policy. See what their fees are and the process. Is the existing conservatory staying? It's the policy on this that you need to protect.

If it is staying, I'd leave the council. Build, but make sure that you've got indemnity insurance in place for the next buyer (you can do this when you instruct solicitors) and that confirmation goes out in the initial pack to their solicitor. It won't raise as a problem for buyers if it is dealt with before they read the title register.

andrewf75

I'm fairly certain that the policy only covered the previous breach. I actually asked the solicitor at the time about our future plans for an extension and he said that we would need to get consent from the council but that it would be a formality. I haven't contacted the solicitor yet because I want to try and do it myself if possible to minimise expense. Have sent an email to the legal department of the council as you suggested Yorkie...thanks for the advice

planning_officer

Late response, sorry! Are you sure this is a 'restrictive covenant' as you call it? Or is it a condition on a previous planning permission? They're very different... If it's a condition, then you need to apply for planning permission.

Richard_Webster

I'm fairly certain that the policy only covered the previous breach. I actually asked the solicitor at the time about our future plans for an extension and he said that we would need to get consent from the council but that it would be a formality. I haven't contacted the solicitor yet because I want to try and do it myself if possible to minimise expense. Have sent an email to the legal department of the council as you suggested Yorkie...thanks for the advice

Existing policy only covers previous breaches - but you might be able to get the insurer to add an endorsement to cover proposed breach. This could well cost more than the typical admin fee that a Council might charge - around £100(?) Usually if the work has not been carried out they charge a lot more and want to see whether there has been any local reaction to planning application consultations - more difficult if permitted development!

The point about these consultations is that they can often bring out of the woodwork people who might try to get the covenant enforced.

Downside with contacting Council is that sometimes your contact with the Council gets lost and you get no reply for ages if at all, so best to start with hypothetical enquiry "If I had a property with a covenant in favour of the Council, which department should I contact?" Try to get someone's name.

Your solicitor may well know your Council's practice in this regard, e.g I know the Council where my office is, generally charges £50 as long as you are not increasing the value of the land (e.g.building a second house on it).