Restrictive covenants - retrospective consent - advice needed

AlexMo

Hi all,

I've built a house next to my current one, and that went through the process of planning permissions, building controls, etc (all was sorted by an appointed architect). The council have issued a completion certificate 3 years back. The council tax is paid on both properties, but I just recently discovered that there was a restrictive covenant on the original land transfer deeds dated 1983: 

"Not to erect on the property or on any part of thereof any shed garage outhouse or any other structure of any kind whether permanent or temporary without the prior written consent of the Council given under the hand of its Solicitors for the time being and in the even of such consent being obtained to comply with all conditions imposed in such consent and to carry out all work to the satisfaction  in all respects for the Council such consent to be additional to any planning building regulations byelaw or other approvals that may be necessary in connection with the erection of any shed garage outhouse or other structure."

As I now found myself in an "unkwnowing" covenant breach, what would be my options?

Ideally I would need a consent, or in this case a retrospective consent? Would it be something easily achievable? 

It is the same council that granted all the planning and building permission which I would seek the consent from.

However I'm a bit cautious to directly approach the council as in case they for some reason do not consent (can they even do that?) it would cut off the possibility for indemnity insurance. 

The new lender I was trying to remortgage with would insist on a consent, rather than indemnity insurance though.

Any advise greatly appreciated.

Thanks

user1977

Did you not get any legal advice before building the house?

I think for something as significant as this, a buyer is likely to want consent rather than to rely on an indemnity policy (given the risk is potentially having to remove the house!).

AlexMo

Unfortunately, there was no legal advise involved pre-building the house.

aoleks

my (limited) experience with restrictive covenants imposed by the council is positive and generally speaking, permission is given as long as all other restrictions are adhered to (planning permission, party walls, building control). it's usually given after paying a hefty amount (£700 for a simple extension, in our case), but they were not difficult at all.

which council is it? you could try to apply without telling them it's been built, but it's risky, as they can talk to colleagues and find out the works have been signed off already.

if I was you, I would just apply, but make sure you understand the risks first. what I'm trying to say is that council are usually very, very relaxed about covenants, as long as you pay the fee.

AlexMo

which council is it? you could try to apply without telling them it's been built, but it's risky, as they can talk to colleagues and find out the works have been signed off already.

It is in east London. 

if I was you, I would just apply, but make sure you understand the risks first

Yes, that is what I'm leaning towards, however in the end it is exactly the question about the risks. Given all the planning and building processes have been followed carefully, how likely are they to just turn me down completely?

@aoleks Which department would I need to contact in regards to this restrictive covenants consent, please?

user1977

AlexMo said:

which council is it? you could try to apply without telling them it's been built, but it's risky, as they can talk to colleagues and find out the works have been signed off already.

It is in east London. 

if I was you, I would just apply, but make sure you understand the risks first

Yes, that is what I'm leaning towards, however in the end it is exactly the question about the risks. Given all the planning and building processes have been followed carefully, how likely are they to just turn me down completely?

@aoleks Which department would I need to contact in regards to this restrictive covenants consent, please?

They are incredibly unlikely to have a difficulty with it. In general, the planning process filters out any beneficiaries of covenants who have a problem with a development - they would have objected to the planning application. And obviously they know the house is already there. And councils aren't going to be the type of cynical property owners who will try to screw you over.

The relevant council department will be estates, or whatever they call the team who manage the council's property interests.

aoleks

restrictive covenants actually sit with the housing department and legal. housing to "validate" the use case, legal to draft the required documentation. first point of contact should be legal, see what they say, but again, make sure you understand the implications of a negative answer.

user1977

aoleks said:

restrictive covenants actually sit with the housing department and legal. housing to "validate" the use case, legal to draft the required documentation. first point of contact should be legal, see what they say, but again, make sure you understand the implications of a negative answer.

May depend on which department sold the land in the first place - housing makes sense if it's a covenant on an ex-council house, but I'm guessing that land big enough to build another house might have come via another department. Legal would need instructions from the relevant department, but I suppose they ought to know who it should be directed to.

AlexMo

aoleks said:

restrictive covenants actually sit with the housing department and legal. housing to "validate" the use case, legal to draft the required documentation. first point of contact should be legal, see what they say, but again, make sure you understand the implications of a negative answer.

Why would the answer be negative and would I at least be able to challenge it?
In the end council is benefitting for an additional property for which they get council tax, not to mention all the fees which were paid during the planning and build processes. 

martindow

Have you spoken to the architect about this?  Possibly it's something they should have taken into account.  In any case they probably deal with the LA regularly and could help with who to contact and how to approach this.

user1977

AlexMo said:

aoleks said:

restrictive covenants actually sit with the housing department and legal. housing to "validate" the use case, legal to draft the required documentation. first point of contact should be legal, see what they say, but again, make sure you understand the implications of a negative answer.

Why would the answer be negative and would I at least be able to challenge it?
In the end council is benefitting for an additional property for which they get council tax, not to mention all the fees which were paid during the planning and build processes. 

The planning and building control fees are to cover the cost of the planning and building control functions, they're not a profit-making enterprise for the council, and nor will they affect a decision they make about covenants. Though the fact the development has been granted planning consent does make it somewhat unlikely that the council will find a reason to say no wearing their other hat.