Developers and housebuilders watch out

A recent High Court case serves as a reminder to check for building schemes and restrictive covenants when planning redevelopment and to seek legal advice alongside the planning process.

In this case, a home owner obtained planning permission to develop land which was subject to a building scheme, which prevented the property from being used other than as a private dwelling-house with a garage for one family.

The planning permission provided for the existing house to be knocked down and replaced with four houses, however the other members of the building scheme were able to enforce the covenant to restrict use of the property to a single dwelling.

Building schemes are common when large areas of land are divided up into plots during development and they allow each owner of a plot to enforce covenants against each other. The court agreed with the other home owners in the scheme and considered that the scheme and the covenants did restrict the planned development. As planning permission was already in place, they were not premature in bringing a claim.

Planning permission indicates an intention to build in accordance with that permission. Therefore, this case serves as a warning that developers could find themselves in court if they obtain planning permission which, if implemented, would breach covenants for the use of land. In this case, the developer did have the option of applying to the Upper Lands Tribunal to try to overturn the covenant but had not taken this route.

Our property disputes team can advise on whether land is subject to a building scheme or covenants that may restrict development or use.

Case: San Juan v Allen [2016] EWHC 1502 (Ch)