Modification and release—interaction with planning
Modification and release—interaction with planning

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Modification and release—interaction with planning
  • No presumption of success if planning permission obtained
  • A circumstance to be taken into account
  • Development plan and planning pattern for the area
  • County court
  • Old planning agreements

No presumption of success if planning permission obtained

The fact that planning permission has been granted for a development which would breach a restrictive covenant does not necessarily mean that the tribunal will discharge the covenant.

In Re Marshall [2011] UKUT 69 (LC), the Marshalls’ application to modify a restrictive covenant which prohibited parking on, or obstruction of, a turning area failed. They had modified the approved plans attached to the outline planning permission for their property so that it was built further forward. This meant that their detached garage was partly on the turning area and that in order to provide the amount of parking spaces specified in the planning permission they had to park cars on the turning area. They were, therefore, in breach of the restrictive covenant and unless it was modified to allow for the much smaller turning area they proposed, they were unable to provide sufficient parking spaces to comply with the planning condition. This was due to the Marshalls' own actions in building their house and garage in a position that was revised from the originally proposed location. They chose to blatantly ignore the restrictive covenant.

Even where the local authority has granted planning permission and is also the beneficiary of the covenant there is no presumption that a restriction should be