Restrictive covenant consent not sought

G_M

Enforcement of restrictive covenants is a totaly separate matter (different department!) to Planning Permission.


Granting of one does not imply granting of the other.


However James d's post above regarding timescales may be relevant, though he's yet to verify with any specific case law.


Link James? Name/date of case?

IruFar

The question than is, how do i find out who / where the vendor is now if i need to seek the permission?

James_d_2

Just google conveant 20 years

Here’s one post from
Land registers

https://www.land-registry-documents.co.uk/news-blog/covenantswhat-you-need-to-know-about/

davidmcn

IruFar wrote: »

The question than is, how do i find out who / where the vendor is now if i need to seek the permission?

The statutory successor to the old council would be the current council, if that's what you mean.

Section106

James_d wrote: »

I was reading a case on the net the other day and it said that the judge said after 20 years that is was long enough not to be inforceable and that after 12 I would also be reasonable enough

James_d wrote: »

Just google conveant 20 years

Here’s one post from
Land registers

One of the issues with case law is the decisions are made on the facts of specific cases. That doesn't preclude the possibility that other cases may be decided in a different way because the facts of the new case are not identical to those of another referenced case.

I believe what G_M is getting at is that 20 years is not some magical time limit which applies in all cases. The case law the OP needs to be aware of is that which deals with very similar cases to their own, not just something random off the internet.

The OP's question relates to a property they don't yet own (so they have no incentive to just ignore the covenant) and consists of an alteration to the property (garage to bedroom conversion) which may not need planning consent (to be confirmed) but may still be regarded as detrimental to the neighbourhood.

Therefore, whilst it is possible a judge might agree the covenant shouldn't be enforced to tear down the extension after 20 years, it may still be enforceable in preventing a material change to the way in which the space in the extension is used.

The OP should ask their solicitor to get the seller's solicitor to demonstrate (to their satisfaction) that the covenant is "not enforceable anymore". And get that in writing.

da_rule

The enforcement timeline isn’t as overly complex as it is being made out to be. It is essentially a breach of contract matter. As the transfer was executed by deed, the enforcement period is 12 years. Therefore the Council would have 12 years from when they became/become aware of the breach (or should have reasonably been aware of the breach) to take action.

Even though it’s different departments there is a strong argument that the Council, as an entity, became aware as part of the planning process.

Also, is your solicitor sure that extensions fall within these restrictive covenant? There is a strong argument to say that the covenant has been discharged. These types of covenants were used when Councils sold plots of development land. The Council (especially if they weren’t the Planning Authority) wanted some control over what was built on the land above and beyond the control they had through planning so the plans for the original building had to be submitted to them (not in their planning role) for approval. Was this done?

I would read the covenant as follows:
a) not to build without consent of the Council (and planning consent does not constitute consent); and
b) until such consent is received (as this part is subject to the first part) not to build anything on the land.

Therefore, if permission under the first part was received the covenant was satisfied and therefore discharged.

If you are that concerned about it you could either ask the seller to get:
1) Retrospective consent or agreement that the covenant no longer applies; or
2) An appropriate indemnity insurance policy.

IruFar

Update:

The OP should ask their solicitor to get the seller's solicitor to demonstrate (to their satisfaction) that the covenant is "not enforceable anymore". And get that in writing.

As part of reply to the questions from our side, I now have it in writing from the sellers solicitor saying that it is not enforceable. Our solicitor has the same opinion. However, I have asked my solicitor to get a second opinion from the senior lawyer in the firm

Therefore, if permission under the first part was received the covenant was satisfied and therefore discharged.

The permission was filed under "town and country planning regulations 1988" and full planning permission was granted by local authority for the work.

The OP's question relates to a property they don't yet own (so they have no incentive to just ignore the covenant) and consists of an alteration to the property (garage to bedroom conversion) which may not need planning consent (to be confirmed) but may still be regarded as detrimental to the neighbourhood.

I have checked with an Architect and he has confirmed no planning permission is required as its within permitted development. All it will need is building regs checks. in regards to the neighbourhood, most of the properties now had some kind of extension work done to it. Some has even added another floor on top as most were bunglows.



Also, Just to be on the safe side, we will be getting an indemnity insurance policy in place.



will provide another update once i have further information from our solicitors


Thanks

SmashedAvacado

So you seem to be saying that the grant of planning permission (by the planning team at the council) can be deemed to be a waiver of an obligation owed to the council (or perhaps their successors in title) in respect of a restriction on what you can to with the property? If you've been given that in writing, i would keep hold of it, as i am not sure they are right.

Anyway, the reality is that a restrictive covenant can only be enforced by a beneficiary if there is benefit to the land befitting from the covenant. This is unlikely to be able to be shown if the work was done without complaint over 20 years ago.

IruFar

SmashedAvacado wrote: »

So you seem to be saying that the grant of planning permission (by the planning team at the council) can be deemed to be a waiver of an obligation owed to the council (or perhaps their successors in title) in respect of a restriction on what you can to with the property? If you've been given that in writing, i would keep hold of it, as i am not sure they are right.

I have exact same concern as well and that is the reason i have asked the senior solicitor to verify this as well. lets see what they say.

Section106

IruFar wrote: »

I have checked with an Architect and he has confirmed no planning permission is required as its within permitted development. All it will need is building regs checks. in regards to the neighbourhood, most of the properties now had some kind of extension work done to it. Some has even added another floor on top as most were bunglows.

Did the architect advise having looked at all the details of the property, or were they just talking in general terms?

Permitted development rights can be removed from a property, and conditions can be attached to a consent preventing changes which might otherwise be permitted development. In the past it was common to attach a condition to consents requiring that car parking space (including garages) were kept available for car parking. The full planning file for the property would need to be checked to make sure that planning consent isn't required for the conversion you have in mind.

Changes to neighbouring properties in the area previously don't necessarily guide what might be permitted with the property you are looking at. Planning rules and policy change over time and, as above, restrictions can be applied specific to one property.