Restrictive covenants and permitted development

Developers will be interested in two recent cases:

  • In the first, the High Court held that if a residential basement involves engineering operations amounting to a "separate activity of substance", express planning permission from the local planning authority is required. The basement will not be permitted development under class A, Part 1, Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596).
  • In the second, the Upper Tribunal (Lands Chamber) (UT) exercised its discretion to modify restrictive covenants that prevented building on the burdened land. The developer had built properties intended for social housing on that land, knowing that this was in breach of covenant. The houses overlooked the benefitting land, which was being developed as a hospice for terminally ill children. In exercising its discretion, the UT found that the loss of privacy to the owners of the benefitting land was outweighed by the public interest in housing families in need of affordable accommodation, some of whom may have been waiting for a very long time to be housed. Money was adequate compensation for the loss of the private rights enjoyed by the benefitting land.