Rallyman100

We have received a letter from our local council for comment on a planning application our neighbour has submitted to move their side fence to within 0.75m of the edge of the road and along side their garage to extend their rear garden. We live in a narrow cul-de-sac and have a shared entry with 2 other neighbours to our drives. Our estate is open plan and has a covenant restricting the building of walls and fences beyond the building line and to boundaries and we are planning to object. We visited the planning office today to discuss the application and when we mentioned the restriction she said they do not take this into account. When I asked who did she said she did not know. I tried the Land Registry but they could not help.
How can I make sure the restrictions are taken into account?

Tidgy

um, yes they do pmsl

thats the whole point of the planning office, they have to look at the restraints on the property. they have to authorise them to be overulled, so y she said they don't consider them i have no idea, sound slike she don't what shes on about.

i work for a consulting engineers and i've got about 3 projects on hold a the min cos of problems, admitedly a slightly different scale, but the same rules apply.

DCI Gene Hunt

hmmm....

It's legally binding, so they can apply for building permission but if the actually move the fence you are entiled to take them to court to either get an injuncytion to prevent the fence move, or seek damages retrospectively....

They could if clued up enough seek to have the covenant dismissed by the Land Law dept, but I doubt they'd think of that one...

So a quiet word in their shell like, an objection to the planning permission on the grounds of the restriction... then if they go ahead it's off to court!

DCI Gene 'Hang 'Em High' Hunt

PS - That's £50 for my time

pacenote

The Restrictive Covenant is not a planning issue as such. The people to speak to are whoever set up the covenant in the first place as they will be legally able to enforce it. If it is a new estate then often the developer will have set up the covenant to keep the estate open plan ( which you have said it is ). This is what applies to the estate that I live on.

HTH

boxst

I live in a private drive with two houses and there is a restrictive convenant saying that no fence over 3ft can be erected. My neighbours wanted a 6 foot fence to screen their house whilst the hedge grew, applied for planning permission and got it. (I didn't object)

So it seems as though they can quite easily be overridden.

Steve

Account deleted by request

What he says. I would contact the developer and see if they have agreed to waving the covenant. If they havent then they will need their permission or whoever holds it.

chop

LG John

What he said. Prior to ditching it for poker I was a planning officer and the planning process does not recognize nor enforce any of the restrictions that developers or land owners place on land in the manner described. Your neighbour is entitled to apply for planning permission and may very well be granted it however, this doesn't give them the legal right to carry out the work as planning - afterall - is just a cog in the wheel.

There is absolutely nothing to stop me from applying to knock your house down and build a casino in it's place and provided that I properly submitted the application it would have to be considered on its merits. Even if in their wisdom the planning department granted me permission I wouldn't the be able to roll in and start the works because I don't own the land, etc.

scooby2!

As has been said before restrictive covenants are legally binding and run with the land from owner to successive owner, restricting the use of it.

The benefit of those covenants starts with the original covenantor (developer/owner) and passes on to successive owners too, so some detective work may be needed to find out who now has the benefit, (as they would be able to enforce the covenants), if the developer has passed the remains of the estate onto someone else (could be local council).

To have restrictive covenants removed from a property this can be achieved by deed between all parties with the benefit of and subject to those covenants.

Alternatively, if the land owner now thinks those covenants do not apply and they cannot find the land owners with the benefit they can apply to the Lands Tribunal and (if complying with certain criteria), have them extinguished so that they no longer affect the land.

Hope this helps........ : )

Land Registry (I work for them), we record restrictive covenants from deeds on the registers of individual properties that are subject to them (we do not record benefit of such covenants) as information for owners/interested parties, but we do not enforce them that is for those parties with the benefit of them to do.

Rallyman100

Thanks for all your informative replies guys, but unfortunately it sounds like the planning lady was right to tell us they would not take the covenant into account. The original covenant was an agreement between the Peterborough Development Corporation, Bovis homes and ourselves when we bought the property new in 1981. The PDC was dissolved in 1988 and transferred to the Commission for New Towns, so it must be the Commission or Bovis homes who are responsible for enforcement, but I suspect neither of them will be very interested. I think I may have to consult a solicitor in the end.

Lee247

Best of luck

We are in a similar but better situation, our stupid Council have given permission for a shed load of stuff to be done by Nissan, but, they had ommitted the fact a certain area, we have right of way over. They can't do anything unless we agree. They have been such ar$es in the past, we are snubbing them How are they going to tell Nissan they errrr can't do what they want because our "right of way" is in the way

Shark Man

Does anyone enforce covenants these days though?


Our area is supposed to have a covenant restricting the use of commercial vehicles and caravans by residents (basically they aren't allowed).....doesn't stop the sodding shed draggers dumping their caravans on their lawn/drives for 99% of the year

MattW

Agreed. We are not allowed, Caravans, Vans, Motorhomes, Trailers. If we want a satellite dish or aerial we need permission from the developer. The latter we just stuck up!

gingerboy

Can't remember the name of the case in question but the answer is yes. Their is a couple who inherited their fathers farm........ however it had a covenant dating back something like 400 years which was something along the lines of they were responsible for the upkeep of the local church , you would have though that whatever church it was would no longer hold them to this. That was not the case and the vicar who was resident at the church took them to court for works amounting to about £100,000 +.......... unbelievably he won after years and years of court room farce and substantial costs.

I can't remember the exact costs involved but something like £750,000, the obvious solution was to sell land and or the farm house, however this was now worthless due to the covenant imposed and the fact that the narrow minded church was happy to bankrupt a couple .

If it was the church of England it's a disgrace as by all accounts they have more money than God .

I'll try and dig out a link to it but remeber watching the programme in utter disbelief, especially the jumped up ***** of a vicar who was harping on that they had an obligation based on a 400 year old covenant!

Regards

GB

speedking

This type of covenant and the one against external TV aerials, are often imposed to keep the estate looking open and spacious while the developer / builder sells the houses. Once they have been sold he is not bothered what happens and is unlikely to enforce the covenant, what could he gain?

richardg

yes they do, that's why when developers buy land they obtain restrictive covenant indemnity policies if required. the aerial, caravan, sat dish etc covenants don't have any clear monetary value so they are less likely to be enforced unless those who do abide by the rules kick up a fuss

scooby2!

Don't give up hope - if may be more than possible that they would still be interested, especially if enough of u oppose the development planned and/or it goes against the planned original "look" of the estate/area.

Also don't forget that u have the benefit of that covenant too, (as an owner of the land purchased from PDC/Bovis) just as u are subject to it (for the benefit of the other owners in the area), therefore u would have the right to challenge to probably!

Some independant legal advise needed I think - make sure u get a land law expert!

scooby2!

This may help.............or not!! lol

Tulk v. Moxhay: Information and Much More from Answers.com

wilffive

As said before planning is separate to a restrictive covenant.
Restrictive covenants on estates are quite often only usually enforceable by the developer who by the time they come round to being enforced has taken the money and gone.
Saying that you may have the right to enforce the covenants either indirectly via your developer of if the covenants were in the nature of a building scheme.

Answer: Make a formal written objection through the planning process.
Get a lawyer to check your registered title and property deeds so see if you have any rights to enforce the covenant. Contact the developer and ask if it will enforce the covenant on your behalf.

Rallyman100

Thanks for all your further information and comments. I have been to the Land Registry today to get a complete copy of my deeds and unfortunately it says the following:-

That neither the Corporation nor the Developer shall be liable to the purchaser in respect of any breaches of any of the covenants herein contained which may be committed at any time by the purchaser of any other plot on the Development and nothing herein contained shall render it obligatory on the Corporation or the Developer to take proceedings to compel the enforcement of the same.

So it looks like it is up to me and my neighbours to enforce the covenant and as scooby2! posted -Some independant legal advise needed I think - make sure u get a land law expert!

Devildog

I'd be interested to hear an English solicitor's take on this.

In Scotland we have what is called a Deed of Restrictions, which effectively becomes a contractual agreement between the developer/seller and the buyer. These are recorded with the land registry in the same way as your Covenants and would appear to be the same thing.

In reality, and according to my lawyer, they are "not worth the paper they are written on" and would be very difficult to enforce.

May well be quite different in England, although again for a freehold I suspect they are contractual as well.

If it is a contractual matter, then difficult to enforce for "reasonable" breaches, ie sheds, satelite dishes, up to 6 foot fencing, etc, as the property owner's defence to any challenge would be that the original terms of the contract were unfair and hence unenforceable.

To the OP:

Will the proposed changes encroach on your property, or create any practical problems other than just looking different?

scooby2!

Any update on this????

Just wondered how things were going??

nooobyscoooby

Here's a link on the farmers who had problems:

Appeal to House of Lords: PCC of Aston Cantlow | Church of England

Rallyman - wha'ts the issue about lettingthem have a fence.

My own preference, and one that some estate agents might say adds value to a property rather than detracts from it, would be to have my front garden enclosed with a nice brick wall and/or hedge with a pair of oak timber gates.