Often when property is sold, the seller chooses to include some reservation of control which is achieved by a restrictive covenant written into the title deeds. Typically, this will restrict what the new owner can do with the property by prohibiting or limiting development, or by limiting the uses to which it can be put.

Such a covenant is legally binding for all future owners and it is often the case that the full effect of the restriction comes to light many years and even decades later, when a new owner applies for planning consent. Although a restrictive covenant does not have any impact on the planning decision, it can be during the application process that a beneficiary realises they have a right to prevent or influence the application because of the covenant.

Common examples of covenants include: restricting the development on a site to a single dwelling, preventing the erection of any further buildings or requiring approval of the beneficiary to the design of any new buildings – particularly where a heritage property would be affected.

Similarly, some areas of bare land with obvious development potential, such as sports fields and amenity areas, may be protected from development or alternative uses by covenants imposed when they were sold of gifted for their original purpose.

If the express consent of the beneficiary of the covenant has not been given, even development with full planning consent can be legally prevented when it contravenes the terms of the restrictive covenant.

All property owners are advised to become familiar with the restrictions that are contained in their title deeds. If a development is planned it is worth contacting the beneficiaries of the restrictive covenant with the details of the proposed planning application. A beneficiary can choose to waive the covenant in respect of the particular development, which must be received in writing.This may also be an opportunity for beneficiaries to seek some financial compensation for their agreement to waiving the covenant, which can often be the most pragmatic approach to enabling the development. When a beneficiary is unwilling to agree, then an application to the Lands Chamber for release or modification of the restriction is required.

There are several grounds upon which an application can be made but the Tribunal’s decision is always discretionary and is based upon the extent of the potential impact of development on the beneficiary’s property, which will rely on the expert evidence of valuers and chartered surveyors.

Further information

Contact Savills Rural Development

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