Restrictive covenant upheld despite planning permission

The Court of Appeal has recently upheld a ruling of the Upper Tribunal (Lands Chamber) that alterations to the external appearance of any house within the suburb in question without the consent of the Hampstead Garden Suburb Trust Ltd (the “Trust”) are not allowed and that this restrictive covenant is not to be modified; serving as an important reminder that gaining planning permission does not necessarily give you ‘carte blanche’ to change your home.

The appellants wished to build a new first floor extension over their garage. They argued that the Lands Tribunal should have modified or overruled the terms of the covenant under Section 84(1) of the Law of Property Act 1925. They argued that the planning authority had already granted planning permission, seeing no fault with the proposed changes, and that this should drive the Trust’s decision. In any event, they added, the payment of money should be adequate compensation to the Trust for any hindrance or loss.

The Judge ruled that the planning decision did “fall to be considered”, but did not hold sway over the decision reached by the trust. The decision by the Trust was reasonable and, if Parliament had intended that Local Planning Authorities should prevail in such circumstances, the relevant legislation would be in place to ensure it is so.

On the matter of compensation, the Judge ruled that the Trust had a duty to protect the public interest of those in the area in question and that the damage to this public interest could not reasonably be compensated monetarily. The damage was to the public as a whole which, unlike an individual, was not something that could be recompensed.

The appeal was consequently denied.

In fact, the only instance where private rights, including restrictive covenants, can be overruled is by a Local Authority that has acquired or appropriated land for planning purposes, even if the use is in breach of a restriction concerning the user of the land arising by virtue of a contract. This is under powers granted by Section 237 of the Town and Country Planning Act (“TCPA”) 1990 and later amendments, specifically Paragraph 4 of Schedule 9, by the Planning Act 2008.

The position, therefore, is that the erection, construction, and carrying out of any works on the land or use of the land is authorised if it is done in accordance with the planning permission, notwithstanding that it may interfere with private restrictions. The effect of this is that private rights are overridden and converted into claims for monetary compensation.

In the case above, the appellant should have paid attention to the details of the title when their Solicitor explained it to them before exchange of contracts. The details of any relevant covenants are highlighted at this stage and it is good advice for all property purchasers to carefully consider the effects covenants or other restrictive rights might have on their future usage of the property.

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