Planning permission

[Jim Davis]

Twelve years ago I applied to the planning department of my local council for planning

permission to build an extension to my house.

I was granted planning permission and therefore built the extension.

A planning officer from the council visited here to make sure my application was truthful

and accurate. OK no problem.

However, I have recently discovered that it was illegal for me to have the extension built

due to a restrictive covenant on my house deeds.

I wasn't aware that the covenant said that I'm not allowed to extend my house without permission

from the owner of the covenant.

I have been ordered from the owner of the covenant to demolish my extension as I never

obtained covenant permission to build it.

The owner of the covenant has offered me the option of paying them £10,000 to remove

their demand to have my extension demolished.

You may be wondering who is the owner of the covenant.

Well the owner is the same council who granted me planning permission to build my extension.

I give up.

[king12345]

Too late now for them to do anything.

It's just a bluff.

When you apply for planning permission is the council responsibility to check if there's any restriction in place which forbids new projects of any sort.

They granted planning permission and the fact that they are the owner of the covenant makes it even more of a screw up from them.

Tell them to take you to court and they'll soon disappear with their extortion.

What council is it?

[AndyOrch]

Thread moved to the appropriate forum...Local Authority/Council

 

Regards

 

Andy

[Jim Davis]

Too late now for them to do anything.

It's just a bluff.

When you apply for planning permission is the council responsibility to check if there's any restriction in place which forbids new projects of any sort.

They granted planning permission and the fact that they are the owner of the covenant makes it even more of a screw up from them.

Tell them to take you to court and they'll soon disappear with their extortion.

What council is it?

 

Hi King and thanks for your reply. The owner of the covenant is South Gloucestershire Council.

My house was a council house until 1985 when the tenant bought it.

I bought it from the ex-tenant in 1989 for the full market value.

I will tell them to take me to court as you recommend.

[BazzaS]

Hi King and thanks for your reply. The owner of the covenant is South Gloucestershire Council.

My house was a council house until 1985 when the tenant bought it.

I bought it from the ex-tenant in 1989 for the full market value.

I will tell them to take me to court as you recommend.

 

Which may be an expensive mistake.

 

Applying for planning permission doesn't create a liability on the local planning authority (LPA) to check for restrictive covenants.

 

The LPA will assess the application according to their 'development plan'.

https://www.gov.uk/planning-permission-england-wales/after-you-apply

 

From : http://www.herrington-carmichael.com/services/problemswithrestrictivecovenants

Planning permission for all or any of the things the covenants prevents can be applied for and the existence of the covenants will form no part in the planning decision. The fact that you get planning permission will not override the validity of the covenants. Issues of planning and issues of restrictive covenants are separate matters and are dealt with in completely different ways.

 

Additionally

http://www.independent.co.uk/news/business/check-the-deeds-before-you-build-permission-counts-for-little-if-a-covenant-is-breached-1512874.html

 

It is also a salutary lesson for all homeowners to remember that the granting of planning permission to build does not necessarily mean you have complied with the conditions in the title deeds of your property.

 

Expect the planning dept. to say "we gave planning permission, so we didn't refuse you permission to build on planning grounds : but we made no ruling / assessment regarding restrictive covenants, as this is a matter unrelated to planning permission".

[BazzaS]

When you apply for planning permission is the council responsibility to check if there's any restriction in place which forbids new projects of any sort.

 

No, it isn't the LPA's responsibility to check for restrictive covenants.

[king12345]

No, it isn't the LPA's responsibility to check for restrictive covenants.

 

It is because they are the landlord.

Even when they're not, that's the first thing they check when applying for planning permission.

Asking for money after 12 years to close both eyes on their mistake is nothing more than extortion.

In any case, by granting permission they have agreed that the extension could be built and they are the landlord.

Now they claim that permission was not seek???

I would take the chance to have my day in court (which most likely will never materialise imo)

[BazzaS]

It is because they are the landlord.

Even when they're not, that's the first thing they check when applying for planning permission.

Asking for money after 12 years to close both eyes on their mistake is nothing more than extortion.

In any case, by granting permission they have agreed that the extension could be built and they are the landlord.

Now they claim that permission was not seek???

I would take the chance to have my day in court (which most likely will never materialise imo)

 

You've ignored where I've highlighted that granting of planning permission takes place without the LPA checking restrictive covenants : which remains the responsibility of the applicant!

 

Do you think the 2 sites I've quoted (including the Independent) are wrong?

 

The council aren't the "landlord"!, (since the OP owns the freehold).

They are the beneficiary of the restrictive covenant .... which the LPA has no obligation to check when considering planning permission.

If you can't tell the difference between "landlord" and "beneficiary of a restrictive covenant" : I'm not sure the OP ought to be taking an expensive gamble on your reassurances!

 

Can you give any cites to support your assertion that the LPA check for restrictive covenants (either if they are the beneficiary of them, or all restrictive covenants)?

 

The article in the Independant notes (as its closing summary);

But do not be lulled into a false sense of security. Just because you get planning permission and build in accordance with it, it does not mean that you have complied with the restrictions in your title deeds.

[BazzaS]

http://ha2.boroughofpoole.com/akspoole/images/att8535.doc

The solicitor who was the council's head of legal services noted:

At 3.3

Planning permission does not override the restrictive covenant in itself

 

and in conclusion:

Put simply, the answer to the question posed by members of the Planning Committee as to the relevance of a restrictive covenant in their deliberations on a planning application is that, for all practical purposes, the existence or absence of a restrictive covenant is of no relevance whatsoever and must play no part in their decision making processes.

 

"Must play no part in their decision", not "the first thing they check" (as you have suggested).

Where do you get "that's the first thing they check" from?

 

In case you might want to suggest that there is a difference between when it is the council who are the beneficiary of the covenant and when a third party is the beneficiary.......

 

http://www.fridaysmove.com/property-law-blog/chriss/your-home-extension-could-violate-covenant-even-planning-approval

If the local council originally imposed a covenant, a planning or building regulation application is not effective as an application for consent under the covenant. This is because such matters are dealt with by separate departments which will only be concerned with applying the relevant regulations, and will not be aware of the existence of any covenant.

[BazzaS]

Take a look at a Court of Appeal case regarding planning permission and restrictive covenants.

Graham v Easington District Council [2008] EWCA Civ 1503

 

It is for the Lands Tribunal to decide the effect of planning permission on a restrictive covenant. The tribunal MAY (my emphasis, not 'WILL") decide that the grant of planning permission might prevent the council enforcing a restrictive covenant.

The planning permission is but one factor for the Tribunal. If the use is "reasonable use" and "the public interest" are other, major factors.

 

If things were as simple as king12345 makes out ("planning permission granted, council can't enforce the restrictive covenant") : surely the Court of Appeal would have concluded that, rather than the decision (that it is the Tribunal's decision) that the Court of Appeal reached instead....

[stu007]

I have to agree with BazzaS

 

The OP would have been aware of this Restrictive Covenant when they purchased the property as it would have been in the Title Deeds thus when applying for Planning Permission they should have made the LA aware of this restriction.

 

During Planning Permission it is not for the LA to check the OPs Title Deeds as they should have made the LA aware of this restriction on the Application for Planning Permission.

 

I can see the LA using the Planning Permission Application form against the OP so they need to be careful here.

 

Now a little TIP as you had the planning permission granted on XX/XX/XXXX date any policy etc they have mentioned in recent correspondence you ask then for exact copies of these specific policy etc not the new updated ones you want the ones in place at the time you were granted Planning Permission as these were the ones in force at the time and if there is any mention of covenants.)

 

The tip may or may not help but others will be along to advise

Edited March 20, 2017 by stu007

[king12345]

http://ha2.boroughofpoole.com/akspoole/images/att8535.doc

The solicitor who was the council's head of legal services noted:

At 3.3

 

 

and in conclusion:

 

 

"Must play no part in their decision", not "the first thing they check" (as you have suggested).

Where do you get "that's the first thing they check" from?

 

In case you might want to suggest that there is a difference between when it is the council who are the beneficiary of the covenant and when a third party is the beneficiary.......

 

http://www.fridaysmove.com/property-law-blog/chriss/your-home-extension-could-violate-covenant-even-planning-approval

 

Been in the building game most of my life and many application come back with conditions or refusal because of restricted covenant even when the council has no part in it.

Differently from a restriction imposed by landlords on a freehold property sited in a private road where tenants pay maintenance to a management company who owns the communal parts.

In that case the council does not get involved because any restriction is between the management company (landlord of communal grounds) and property owner.

In op's case the council is the covenant owner so by granting planning permission they agreed for the op to build.

They now claim that they should have been consulted.

They were consulted by application for planning permission and the £10k request is unjustified.

If they were a third party and had not been notified, they could have extorted this money, but they were notified 12 years ago and agreed to the extension to be built.

[BazzaS]

Been in the building game most of my life and many application come back with conditions or refusal because of restricted covenant even when the council has no part in it.

Differently from a restriction imposed by landlords on a freehold property sited in a private road where tenants pay maintenance to a management company who owns the communal parts.

In that case the council does not get involved because any restriction is between the management company (landlord of communal grounds) and property owner.

In op's case the council is the covenant owner so by granting planning permission they agreed for the op to build.

They now claim that they should have been consulted.

They were consulted by application for planning permission and the £10k request is unjustified.

If they were a third party and had not been notified, they could have extorted this money, but they were notified 12 years ago and agreed to the extension to be built.

 

Well, your 'many years in the building game' view that the council's grant of planning permission constitutes a withdrawal or an overriding of the restrictive covenant seems at odds with the Court of Appeal's view that it is for the Land Tribunal to decide.

 

Why do you feel the case cited isn't relevant?

Why do you feel the websites cited are wrong?

 

Examples of councils refusing PP or imposing PP conditions doesn't mean that every time they grant PP they are withdrawing any restrictive covenant : perhaps with the examples you state the restrictive covenant was disclosed in the application and/or the council refused or imposed conditions because of their local development plan!

[king12345]

Well, your 'many years in the building game' view that the council's grant of planning permission constitutes a withdrawal or an overriding of the restrictive covenant seems at odds with the Court of Appeal's view that it is for the Land Tribunal to decide.

 

Why do you feel the case cited isn't relevant?

Why do you feel the websites cited are wrong?

 

Examples of councils refusing PP or imposing PP conditions doesn't mean that every time they grant PP they are withdrawing any restrictive covenant : perhaps with the examples you state the restrictive covenant was disclosed in the application and/or the council refused or imposed conditions because of their local development plan!

 

I don't think so because I submit the planning application.

Maybe I work with more efficient councils with their eyes on the ball.

In op's case the council is the covenant's owner so they have been informed at the time.

[AndyOrch]

Baz and King.....I think we will have to agree to disagree...lets wait for Jim to return to consider the options/advice offered.

 

 

Regards

 

Andy

[Jim Davis]

Baz and King.....I think we will have to agree to disagree...lets wait for Jim to return to consider the options/advice offered.

 

 

Regards

 

Andy

 

Today I managed to find all the conveyancing documents and final account from my Solicitor when I bought

the house back in 1989. The previous owner of my house had built a small single storey extension on the gable

end of the house. My Solicitor must have realised that the previous owner breached the covenant which could lead to claims in the future. He therefore took out indemnity insurance to cover against any such claim.

Thank goodness he did this otherwise I would be right in the you-know-what.

I suspect there may be thousands of people who have bought ex-council houses and extended without

knowledge of an existing restrictive covenant.

[BazzaS]

Today I managed to find all the conveyancing documents and final account from my Solicitor when I bought

the house back in 1989. The previous owner of my house had built a small single storey extension on the gable

end of the house. My Solicitor must have realised that the previous owner breached the covenant which could lead to claims in the future. He therefore took out indemnity insurance to cover against any such claim.

Thank goodness he did this otherwise I would be right in the you-know-what.

I suspect there may be thousands of people who have bought ex-council houses and extended without

knowledge of an existing restrictive covenant.

 

Excellent. You are fortunate to have found cover where the beneficiary of the restrictive covenant is known and could easily be approached ; often insurers are wary of such (and if the beneficiary has actually been approached prior to seeking the insurance the insurers will decline to quote for cover!).

 

Pass any communication from the council regarding a breach of covenant on to your insurers, breath a sigh of relief (and buy your conveyancer a pint if you see them in future!).

[Jim Davis]

I tried to track down my conveyancer from 1989. Sadly he died of a stroke some seven years ago.

regarding indemnity insurance I have read that such insurance can be taken out after a restrictive covenant

has been breached to cover any future claims from the owner of the covenant.

I find that very strange indeed.

Seems similar to driving a car without insurance, having a crash and then taking out insurance to cover

the damage after the crash.

[ericsbrother]

covenants that arnt enforced die. If the covenant was breached back in times before you bought the place then it can be said to no longer exist. There is also another thing regarding breaches of covenant and that is when you breach them it is like trespass, you only have to pay damages to the value of the loss caused to the person holding the covenant. So, what are the council's losses? Also, after 12 years the council has nothing to say about this as they have basically allowed you to breach it all that time, well beyond any time for instructing you to do anything under planning laws so you could have built a new house and they would have no right to tell you to demolish or even apply for permission retrospectively.

So, you can argue that the covenant is obsolete. To force demolition they will have to take you to court and show that they have lost some practical or financialbenefit by your building of that extension. You can also take the matter to the Lands Tribunal and argue the same. that will cost you and it may well be dragged out by the council as they are using someone else's money to try and bludgeon you into submission and costs are not decided in the same way as a normal court, there is a huge amount of leeway as they prefer the 2 parties agree something.

All in all I cannot see any benefit to the council in enforcing the covenant, they ahvent lost anything due to the breach, they ahve no real interest and have allowed it to become obsolete before you bought the property so why are they asking for £10k? because they think they can. you should work out the value of the property at the time the extension was built both with and without the extension. I doubt if there was a £10k difference and if you include the cost of the works probably no gain by you at all. So I would start off by saying that the covenant is obsolete because of the earlier extension and that has been recognies more than once (also quote any other similar works near to you) and so nothing owed. In any case no looss, either financial or amenity has been caused by you or the previous owner by the breach so the amount claimed is punitive rather than a valuation of their rights.

[ericsbrother]

also, have a look at the title deeds you were given to peruse at the time. If you havent got them to hand you can get a copy from the Land Registry. The solicitor who did your conveyancing should have pointed this out to you so if they are still in business ask to see the file as you dont mention actually being made aware of this covenant. The insurance you bougth was only good for that previous extension and only for a year, like any insurance premium so theoretically you should still be paying the premiums. We know, however that the council didnt enforce either before or once you bought the place so as said it is obsolete and it would be a rather perverse decision to for a court make you demolish that.

Call their bluff.If they dont back down offer damages of £1 for the breach as they cannot ever quantify a loss as they sold a freehold so have no interest in the place.