Restrictive covenant on Victorian house and garden

[TooManyMiles]

Does anyone know what force/value a restrictive covenant has?

I live on a terrace of Victorian houses with large gardens behind a back lane. If these could be built on they would be very valuable because of the area.

There is a covenant going with the deeds which says no building apart from stables on these gardens.

All the owners to date have accepted this at face value and the only buildings have been stables/ garages over the last 145 years. Recently though in one case where the garden has been separate from the house for some time, and the old stable there a workshop, it has been sold to a developer. ( It has the same covenant on it though)

There is now a planning application to considerably extend the old building across a large expanse of the garden. The planning authorities say they take no account of restrictive covenants. They are highly likely to grant this.

This could set a precedent for all the other large gardens to become development land.

Do these covenants mean anything in practice?

This is a good legal explanation of the interplay between planning permission and restrictive covenants: www.daviesandpartners.com/news-events/331-restrictive-covenants-and-your-rights-to-develop

In summary, and among other things, where it can be demonstrated that the passage of time and changes to the neighbourhood render the purpose behind the covenant obsolete, and where the nature of the proposed development will not significantly alter the current character of the neighbourhood or the value of neighbouring properties, and where it is no longer clear who the beneficiaries of the restrictive covenant are, it can likely be discharged.

A good read below. Not to be entirely dismissed.

www.stiveschambers.co.uk/content/uploads/2020/11/Restrictive-Covenants-Ignore-at-your-Peril.pdf

Thank you very much Comtesse and Geeky.

It was very interesting to read the case outlined by St Ives Chambers, and gratifying that in the very end the developer was not allowed to get away with cynically ignoring the restrictions, especially given another section of land could have been used - even though the affordable housing the developer had created as a fair accompli provided an apparent moral imperative.

It would seem though that in most cases, as with Planning in general, it would be easy to make a case for 84 (a) (aa) (aaa), and in the case of old, Victorian covenants to find them obsolete.

I was interested from the point of view of trying to protect the special gardens because, even though they are in a conservation area, this no longer has much weight in creating protection; and because my own garden would lose privacy and its secluded character. As an individual though, it looks as though I would need a great deal of money to bring a case (which I would not have).

Am I right in thinking that any money owed for breaking the restrictive covenant on the land in question would presumably go to the present day descendants of the original Victorian owners who developed the terrace of houses?

SCOTUK heard a case recently, and reaffirmed covenant law ...

www.supremecourt.uk/cases/uksc-2019-0006.html

Well worth a read. Notice that it cost the developer a lot of money.

Thank you very much Professor. I think that was the same case as outlined in Geeky’s post but I appreciate your interest and the link.

What is daunting though is that the case had to get to the Supreme Court to get to that result. This is not the sort of thing an ordinary householder like me can easily try to take on.

@TooManyMiles

Thank you very much Professor. I think that was the same case as outlined in Geeky’s post but I appreciate your interest and the link.

What is daunting though is that the case had to get to the Supreme Court to get to that result. This is not the sort of thing an ordinary householder like me can easily try to take on.

Well yes. Access to law is just as much a part of justice as the law itself. And rights you can't enforce are not rights.

But given it's been like that for nearly a millennia, either we are all happy with it, or we don't consider it a priority.

I agree there is lack of access to the law, and this is a tremendous problem in practice especially for more serious issues than this.