Restrictive covenants compared with planning rules

Planning permission does not override a restrictive covenant. The two systems are separate: planning is public law administered by the council, and a covenant is a private promise recorded against the title of your land and enforceable by whoever has the benefit of it. A council will grant permission for a garden room without knowing or caring that the deeds say no building shall be erected other than the original dwelling. The neighbour with the benefit of that covenant can then apply to the court for an injunction.

Two separate systems

Planning designations describe what the state permits. Covenants describe what a previous owner promised a neighbour.

The last row catches people out. Planning enforcement has time limits after which unauthorised development becomes lawful. A covenant does not expire through the passage of time, although long acquiescence in breaches can affect whether it will be enforced.

What planning permission does not override

It is worth being blunt about the range of private rights that survive a grant of permission.

• Restrictive covenants in the title deeds.
• Rights of way, drainage and service easements over your land.
• Rights of light acquired by a neighbour's windows.
• The Party Wall etc. Act 1996 procedure for works to shared and adjacent structures.
• Covenants in a lease, where the property is leasehold.

A planning officer will not check any of these, and the decision notice usually says as much in the informatives. Your Planning Statement addresses the planning merits. It has no effect on your title.

The reverse is also true. A covenant permitting something does not give you planning permission, and a covenant is not a material planning consideration in the usual case.

Finding covenants on the title

Order official copies of the register and title plan from the land registry. They cost a small fee, arrive electronically and take minutes. Check the current charge before assuming a figure.

Covenants appear in the charges register, often as a reference to a deed rather than as text. Where the register refers to a conveyance dated some years ago, order a copy of that document too, because the wording is what matters and summaries are unreliable.

Three things to look for in the wording:

1. What exactly is prohibited, and is it absolute or subject to consent.
2. Who has the benefit, named or described by reference to retained land.
3. Whether consent is required from a named party, and whether that party still exists.

Older estate covenants often require the consent of a developer company that was dissolved decades ago. That is a common and solvable problem, but it needs identifying before you build rather than when you sell.

Enforceability and who benefits

A covenant binds successors in equity where it is negative in substance, was intended to run with the land, benefits identifiable land retained by the original covenantee, and is properly protected on the register.

Whether it will actually be enforced is a different question. The person with the benefit has to be identifiable, has to be willing to act, and has to act reasonably promptly. Courts can award damages instead of an injunction, though an injunction is a real risk where a claimant moves quickly and the breach is obvious.

Building schemes complicate this. On an estate developed under a scheme of mutually enforceable covenants, every plot owner may have the benefit against every other, which removes the argument that nobody is left to enforce.

Take advice from a property solicitor on enforceability. That is a legal question about your title, and it is not something a planning consultant, or this article, can answer for your land.

Insurance and indemnity policies

Restrictive covenant indemnity insurance is the common practical solution where the beneficiary is unknown or unlikely to enforce. A single premium policy covers the cost of defending a claim, damages, and in some cases the loss in value if the works have to be removed.

Two rules govern it and both are absolute. Do not approach the person who might have the benefit, because contacting them almost always makes the risk uninsurable. And obtain the policy before starting work, because insurers will not cover a known and crystallised breach.

Insurers usually want to see the planning permission before issuing, which affects the order in which you do things.

Applications to modify a covenant

Where insurance is not available, the Upper Tribunal has power under section 84 of the Law of Property Act 1925 to discharge or modify a restrictive covenant.

The grounds include that the covenant has become obsolete because of changes in the character of the neighbourhood, that it impedes some reasonable use of the land and confers no practical benefit of substantial value, that those with the benefit have agreed, or that no injury will be caused to them.

It is a tribunal process with costs and a timescale measured in many months rather than weeks. It also usually works better once planning permission has been granted, because permission is evidence that the proposed use is reasonable.

An illustrative example. A householder buys a plot with a 1960s covenant restricting the land to one dwelling. Planning permission is granted for a second dwelling in the garden. The original developer company was dissolved, no adjoining owner has an identifiable benefit, and an indemnity policy is obtained before any work starts. Total cost, a few hundred pounds and no correspondence with anybody.

Sequencing against the planning application

The order that causes fewest problems runs like this:

1. Obtain official copies of the title and read the covenant wording before you commit to a design.
2. Take legal advice on who has the benefit and whether it is likely to be enforceable.
3. Apply for and obtain planning permission, which costs nothing in covenant terms and is evidence of reasonableness.
4. Put insurance in place, or make the tribunal application, before any work starts.
5. Only then let a contract.

Doing step three first is fine. Doing step five first is expensive.

Check the other non-planning constraints at the same time, because title throws up more than covenants. Mineral rights, chancel repair liability and the coal mining position all sit outside the planning system, as the note on mine entries and coalfield conditions shows, and rights over land such as common land and village greens have their own separate consent routes.

Enter your postcode on PlanScope to see which of the planning reports your project is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.

This is general guidance, not legal advice. Restrictive covenants are a matter of property law and turn on the wording of your deeds, so take advice from a property solicitor before relying on anything here.