Restrictive covenants - any legal folk out there for advice?

[Wediditnow]

We moved into our new home 2 years ago and spoke with the developer about our intention to build a garage before we bought the house. Restrictive covenants in place re this.

Finally, we got our act and finances together and started the process of designing the garage with a local architect this summer. We discussed our plans at every stage with the developer who gave us a verbal estimate for him to build the garage. The plans were submitted to planning four months ago and there were no objections until now! Our developer has just decided that the proposed building is too big and doesn't sit well within the plot and is demanding that we amend it. We're expecting a decision from planning this week!

So, can anyone tell me if we're in breach of the restrictive covenant by obtaining planning permission even though we have decided that we are not going to build due to the hassle of having to redesign to the developers plan (which we don't like. We have told the developer this. We're going to move instead.

By the way, other houses on the development have also built garages/outbuildings without written consent from the developer. One house has just received planning permission for a garage and the developer has agreed to build it even though he had not formally agreed their plans.

The whole process has been so stressful so any clarity and advice would be welcome. Thank you.

If you haven't built the garage you aren't in breach of the restrictive covenant. It is quite unusual for the developer not to give consent for something that has been granted planning permission. Might be worth looking at the covenant to see if there are any conditions attached other than the developers approval such as 'such consent not to be unreasonably withheld' or words to that effect. I am legally qualified btw.

Thank you so much. We put the planning application forward in good faith and didn't want to offend anyone. The local authority put up their usual notices of our intention to build with, I think, a 21 day period for anyone to object. Nobody put in any formal objections. We do not yet know if the application has been granted - we should find out tomorrow. The restrictive covenant states that no building "should be erected without the developers consent in writing". We did not have his formal consent but naively assumed that having him involved at every stage of the planning and him agreeing to build the garage was enough! As I mentioned in my first post, we are not going to build now as the proposed plan put in by the developer nowhere near meets our needs. I'm just concerned that we have put in planning without his written consent and if this gets approved we are in breach of the restrictive covenant.

Depends what the covenant states. Including any penalties if it's broken.

You can't be in breach of something that you have actually done yet. Covenants have no bearing on planning permission being given for this reason.
Unless you start building without the covenant holder's written permission,there's not much that they can do.
My old neighbours got pp on a field that had a covenant on it stating no permanent housing could ever be built on it. The covenant holder objected to the pp but his objection wasn't taken into account because it was not a valid reason to object. At the end of the day, neighbour sold up as he spent £30k plus in court fees trying to get it lifted and failed.

Thanks to all who have replied. I really appreciate your comments. We will not build now regardless of whether planning permission is granted. Too much hassle and cost to build something we don't want! Developer is concerned that when we move, new buyers will build using our planning! Not much we can do about that. I think planning is only valid for 3 years anyway. Correct me if I'm wrong. Any further advice re this would be welcome. It's such a pity that we feel forced to move on now because, without the proposed garage and the storage it would provide, means the house no longer meets our needs. I still don't understand why he hasn't had a problem with other houses on the development building garages etc. Feels like we're being singled out for some reason! This has cost us ££££ in architect and planning fees. Such a waste of money. Angry, confused and worried.

So you bought a new build house with a restrictive covenant? Why didn't you get the developer to remove it before agreeing sale details, or perhaps even get a garage added by the developer at the time of purchase?

I can understand you being upset that your current plans are being knocked back by the developer, but you (and possibly your solicitor) were being a bit naïve to not sort this out at sale.

If you breach the covenant what is the penalty? Or is it all-or-nothing (i.e. you must get developers approval to build - so if you do build that is a breach and they can get a court order for you to demolish the unauthorised building).

Rollercoaster1920 - yes, we were obviously naive!

The issue of the next purchaser inheriting your pp and then building,just puts them in the same position as it does you now. The purchaser would have to actually build it to face any consequences.
It may make your sale more difficult,it depends on what the prospective buyers want. If they have no intention of ever building,they'd be fine. You would have to declare it on the forms associated with selling though.

@Wediditnow : what is the wording of the covenant?

Rollercoaster1920 Just as mentioned in my earlier post, buyer will not erect or construct a building without consent in writing from developer. However, developer said we could build, saw plans and was ok with them but now changed mind - 4 months in. Are you a legal professional Rollercoaster1920?

You couod amend plans to suit developer and sell with the permissions in place in case buyer is ok with smaller size garage .

I'm not a solicitor, no. But have had experience with agreeing a similar covenant designed to prevent development. I ensured it was time bound, clearly defined how it would be deemed to be broken, and the penalty if it was.

The conveyancing solicitors involved were poor, lacked logical thought and knowledge of things like permitted development.

Your covenant probably prevents you putting up a shed, or any outbuilding if it is worded that widely.