Restrictive covenant or planning condition: the difference

A restrictive covenant and a planning condition can forbid the same thing and still work in completely different ways. The covenant is private property law, enforceable by whoever owns the benefiting land, and planning permission does nothing to release it. The condition is public law, imposed by the council under section 70 of the Town and Country Planning Act 1990 and enforced by the council. Deciding whether restrictive covenant or planning condition applies to your plot matters because the route to removing each one is different, and so is the cost.

Self-builders hit this most often on plots carved out of a garden. The council grants permission for a house, and the original vendor's covenant says no building other than a single garage shall be erected on the land. Both are live at once.

Who can enforce what

The practical difference is who is watching. Councils act on complaints and have limited enforcement resource. A neighbour with the benefit of a covenant has a direct financial interest and can obtain an injunction, and an injunction can require a partly built structure to come down.

How a covenant sticks to the land

A restrictive covenant binds successors in title where it was properly created, where it burdens identifiable land for the benefit of other identifiable land, and where it is protected by an entry on the register. For registered land, look in the charges register of the official copy of the title. The covenant itself is often set out in a schedule to an old conveyance that the register refers to but does not reproduce, so you may need to order the filed deed as well.

Positive covenants (an obligation to spend money, such as maintaining a fence) generally do not run with the land in the same way. Restrictive ones do. That distinction explains why estate covenants about paying a management charge are usually backed up by a separate mechanism.

Three things to establish before you assume a covenant is a problem:

1. Whether the benefiting land is identifiable at all. Covenants imposed by builders who developed the whole estate, and then dissolved, are frequently unenforceable in practice because no one can show they hold the benefit.
2. Whether the restriction has already been breached, openly, for a long period without objection. Long acquiescence weakens enforcement.
3. Whether a scheme of development exists across an estate, which lets any plot owner enforce against any other. Those are the most difficult to shift.

Permission does not cut through a covenant

This is the point that costs people money. A planning permission is a public law consent that removes the planning prohibition on development. It confers no right to break a private agreement, to trespass, to interfere with an easement or to breach a covenant.

So a grant of permission for two houses on land restricted to one does not authorise the second house. Building it exposes the owner to an injunction from the beneficiary, and lenders spot the covenant on the title long before the roof goes on. The same logic runs the other way: the absence of a covenant does not help you if the council refuses permission.

Permission is not entirely irrelevant to the private position, though. In an application to modify a covenant, the fact that the council has granted permission is evidence that the proposed use is a reasonable use of the land, which is one of the statutory grounds. It is supporting evidence, not a trump card.

Getting a covenant modified or discharged

Section 84 of the Law of Property Act 1925 lets the Upper Tribunal (Lands Chamber) discharge or modify a restriction on defined grounds. In outline, they are that the covenant has become obsolete because the character of the neighbourhood has changed, that it impedes some reasonable use of the land and secures no practical benefit of substantial value or advantage to the beneficiary (or is contrary to the public interest), that the beneficiaries have agreed, or that the proposed discharge will not injure them.

Points that matter in practice:

• The Tribunal can award compensation to the beneficiary as a condition of modification.
• An application takes months rather than weeks, and costs are real. Budget for a solicitor and, usually, a valuer.
• Building first and applying afterwards is treated unsympathetically. The Tribunal has discretion and has refused applications where the applicant proceeded in deliberate breach.
• The grounds are about the covenant's continuing purpose. Arguments that the applicant wants a bigger house carry no weight on their own.

For a single plot, the cost of a section 84 application can exceed the uplift it unlocks, which is why the insurance route exists.

Indemnity insurance and what it actually does

Restrictive covenant indemnity insurance does not remove the covenant. It transfers the financial risk of enforcement: legal costs, damages, an award for diminution in value, and in some policies the cost of altering or demolishing the works. Underwriters will look at the age of the covenant, whether a beneficiary can be identified, the history of breaches and whether anyone has objected.

One habit worth keeping. Do not approach the possible beneficiary to ask whether they mind before you have spoken to an insurer. Putting the beneficiary on notice is usually enough to make the risk uninsurable, and conveyancers see that mistake regularly.

Insurance suits dormant, historic covenants with no traceable beneficiary. It does not suit a covenant held by the neighbour who has already written to object, and no policy will help there.

When a condition mirrors a covenant

Councils sometimes impose conditions that look like private restrictions. A condition removing permitted development rights on a new house, a condition restricting occupation to a named agricultural worker, a condition tying a granny annexe to the main dwelling, a condition preventing the sale of a garden plot separately. These are planning conditions, and they stand or fall against the six tests in planning practice guidance: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects.

If a condition fails those tests, the route is an application under section 73 to vary or remove it, with a fee and a fresh consideration of the merits, or an appeal against the condition within the statutory period. What you cannot do is treat it as a private matter to be insured around. And a section 106 obligation sits in a third category again: a planning obligation, binding on the land, enforceable by the council, and modifiable by agreement or by application after five years.

Where a restriction is cited in your supporting documents, explain its status plainly. A Planning Statement that acknowledges a covenant and states that it is a private matter outside the planning decision reads better than one that ignores it, and it avoids an officer raising it as a reason to doubt deliverability.

Checking the title before the design is fixed

Order the official copy of the register and the title plan, read the charges register, and order any filed deed it refers to. Do it at the point you are considering the purchase, not after the architect has produced three options.

Illustrative example: a plot at the end of a 1970s cul-de-sac sold off a larger garden in 1982, with a covenant restricting the land to one private dwellinghouse and requiring the vendor's approval of plans. The vendor died in 1998 and the retained land has changed hands twice. The council grants permission for a two-storey house. The covenant still binds the plot, the scheme is for one dwelling so the substantive restriction is met, and the plan-approval clause is dealt with by indemnity insurance because no successor can be identified with certainty. Had the permission been for two dwellings, the position would have been entirely different.

Whether you are choosing between application routes for the works themselves is a separate question, and the difference between a householder and a full application is set out in our note on householder or full applications.

Enter your postcode on PlanScope to draft the planning documents for your plot, and browse the full list of report types if you are not sure what the council will ask for.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. Title and covenant questions are matters for a solicitor. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.