A recent case has demonstrated the difficulties posed when restrictive covenants and planning permission are operated independently of each other.

The Upper Tribunal has upheld the right of residents of a small architect-designed development built in the late 1980s. The residents sought to preserve the development's built form by relying on restrictive covenants seeking to prevent one resident from extending her house.

Bartlett Close is a development of 34 properties designed around a derelict church near Mile End, East London. All 34 properties were self-built and many are still occupied by those that built them. Restrictive covenants on the title to the properties imposed under the original conveyances prevent the properties from being enlarged or extended without the prior written consent of the Residents' Association, which expressly had the benefit of the covenants together with the vendor.

One resident (not one of the original self-builders) applied to add an additional storey to her 2-storey house to provide a further two bedrooms plus the introduction of new roof-lights and two Juliet balconies, which was resisted by the Residents' Association.

The applicant obtained planning permission in 2008 and which she renewed in 2013. She and applied to the Upper Tribunal to modify the restrictive covenants to allow her to extend according to the planning permission. The Association objected, supported by all adjoining owners in their individual capacities.

The most common grounds for a restriction being discharged or modified are that the restriction is obsolete due to the change in the nature of the neighbourhood since the time it was originally imposed, or that the restriction prevents the reasonable use of the property and modification would not result in those entitled to the benefit of the covenant losing something which provided a practical benefit of substantial value, and, money would be an adequate compensation for any loss suffered.

The objections were upheld by A. J. Trott FRICS who declined to modify the restrictive covenants under s.84 of the Law of Property Act 1925. He gave particular weight to the existence of a building scheme and the fact that the estate had remained largely unchanged since its construction; clearly there were no grounds for modifying the restriction under the grounds of it being obsolete.

It was deemed that the covenants conferred on the adjacent owners ‘practical benefit of substantial advantage’ including protecting their outlook, which was threatened by the proposals to extend the applicant's property and so any modification of the restriction would have deprived the adjacent owners of a benefit for which money would have been inadequate compensation.

In addition, the Association advanced the ‘thin end of the wedge’ argument in that this would be the first modification of any of the covenants which would make similar applications in the future harder to resist as well as the likely disruptive effect of building works given the nature of the estate.

Accordingly the statutory grounds for modifying the covenants were not made out and the application was dismissed.

This case highlights that the grant of planning permission does not overcome private law restrictions on carrying out development. The corollary of that is the principle that private law interests, such as restrictive covenants, are not material considerations for the purposes of determining planning applications.

Click here to view the judgment.