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Buachaill, Barrister
Category: Law
Satisfied Customers: 10953
Experience:  Barrister 17 years experience
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As part of a neighbourhood plan process, a landowner has submitted

Customer Question

As part of a neighbourhood plan process, a landowner has submitted three adjoining green field sites and all have been independently assessed as sustainable. Two of them would be best accessed via the third site because it runs alongside a road at much the same level. But after the sustainability assessment, the following restrictive covenant was found to exist on the third site: "The Vendor hereby covenants not to erect any building of any type on the land edged yellow on the plan with the exception of a sports pavilion with storage and toilet facilities ancillary thereto but not within the area bounded by points X Y Z on the Plan."
The Steering Group and its consultant all concluded that the covenant did not prevent the construction of an access road across the covenanted site to the two adjoining sites. Is this correct?
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.
1. Yes, this interpretation of the covenant you have quoted is correct. The covenant against development is limited to any "building". This precludes any structure. However, it does not prevent developments, such as a roadway which does not involve the erection of a "building". So, it is perfectly acceptable to create a roadway over this area marked XYZ as this does not breach the restrictive covenant. A restrictive covenant must be strictly construed and it only catches development clearly within its terms. Here the roadway is in no way within the terms of this restrictive covenant and may be constructed safely.
Customer: replied 2 years ago.
There was a small error in your reply to my question.the "area bounded by points X Y Z" only refers to siting of the pavilion and should have read "land edged yellow" which refers to the whole field covered by the covenant. Please confirm this correction
Expert:  Buachaill replied 2 years ago.
2. Well the area bounded by yellow is also covered by the same opinion. It is perfectly permissible to put a roadway across the field marked yellow even if the restrictive covenant affects the whole field.