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Planning consent doesn’t trump a restrictive covenant

30 March 2012

If you wish to do something on land that is subject to a restrictive covenant, be aware that planning consent does not override the terms of the covenant – they are two separate regimes.  

Lands Tribunal

It is possible to apply to the Lands Tribunal for the restriction to be modified or discharged, providing you can demonstrate one of the statutory grounds.

Often the Lands Tribunal will agree, provided whoever has the benefit of the covenant is compensated financially and the restriction is not in the public interest.

However, in the recent case of Zenios v Hampstead Garden Suburb Trust Ltd, the Lands Tribunal refused to modify a restriction.

Planning permission

Mr & Mrs Zenios had obtained planning permission to extend their house above their garage. The covenantee, Hampstead Garden Suburb Trust (a body whose object is to maintain and preserve the character and amenities of the Suburb) concluded that the development would not be in keeping with the area, and was therefore not in the public interest. Clearly, monetary compensation would not have been an adequate remedy for the harm that would have been done to the character of the area.

While the Garden Suburb Trust itself properly took into account the grant of planning permission, they were not bound by it. The Land Tribunal’s refusal to lift the restriction was upheld by the Court of Appeal.

If you have any questions on planning consent, please contact our commercial property team.

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Alasdair Garbutt LLB (Hons)
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Alasdair Garbutt
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