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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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The Title deeds of a neighbouring property has a clause in

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The Title deeds of a neighbouring property has a clause in section C Charges register, which has a Covenant which states "Covenant......and also that in erecting buildings he or they would keep to the building line observed by the adjoining owners.�
The property currently has a dilapidated warehouse, with the rear building line extending back from the roadside boundary line by about 63 feet compared with neighbouring properties at about 50 feet. A planning application is now being made to construct a residential property extending to a depth of about 68 feet from the front property boundary.
!. Is the term " building line" is sufficiently well defined to uphold such a covenant and would the proposed development contravene the stated Covenant?
2. My second question is how and when one should challenge any decision to allow development beyond the existing rear building line of the warehouse.
Thanking you for any advice on this matter
Is your question in in relation to getting planning department to refuse or vary planning permission on the basis that it breaches this restrictive covenant or is the question in relation to enforcing the covenant?What interest do you have in this? Do you have the benefit of the covenant? Is there a similar covenant against your property?A more detailed explanation of the circumstances would be useful. Thank you
Customer: replied 2 years ago.
1. My main objective is to get the Planning department to refuse planning permission if it exceeds the existing rear building line which is about 63 feet from the roadside property line. My main argument is the Covenant which still applies to the property at***** The question of enforcing the Covenant is a an issue I would consider if the Planning Department ignored the Covenant and approved the current plan. I attach a copy of the most relevant comments I have made on the Planning application which can be seen on:
2. My question therefore relates to how the Covenant can be interpreted. Surrounding properties have developments extending from 50 to 58 feet from the front property line as can be seen on the map associated with the Title deeds of*****(attached). The existing warehouse is already in excess of this and the revised development plan will extend it by 5 feet to about 67 feet. The properties on St Philip's Road from 31 to 43 are terraced houses at right angles to the property being developed so the rear gardens look out on the development and my property at 37 will be most impacted in relation to the extension of the building line. I attach photographs of views from my property/ However, apparently this is not a reason for complaints against planning applications although overlooking and enclosure are.
3..My property at 37 and the other terraced house were built in 1896 by a developer where the Covenant was defined clearly in the title deeds of the developer. The Covenant is referenced clearly in the deeds of my property up to 1935 when part of the Land associated with*****were sold by the owner of 37 St Philip's at that time. Subsequently in 1966 the residual part was sold, and the title deeds of the property at***** clearly have the same phases as those in my deeds. In that respect the Covenant shown in the Title deeds of***** will have bee drived from the same Covenant on my property and it could be argued that the existing warehouse had already contravened the terms of the Covenant.
4. You will see that I have also identified a discrepancy regarding the information given on the development plans concerning the marked position of the existing building line which reduces the stated extension beyond the existing building line from 5ft (my estimate) to 2 feet (their estimate). While this is not part of my query to you, I raise the issue because it implies that the extension is less significant than it really is and could result in the approval of the application. I also attach a document I have prepared to send my final comments to explain and justify my estimates of the existing position of the building and the proposed development. which I have been unable to upload directly to the Planning Department Website.
5. My immediate query, therefore relates to whether the Covenant clause :
"... and in erecting buildings he or they would keep to the building line observed by adjoining owner"
is sufficiently precise to argue my case on the grounds of the Covenant. It appears to me from correspondence on the issue that the existence of the Covenant was initially denied and considered to be irrelevant, and that the extension has been minimised in the presentation of the plans.(see email from Agent - last two paragraphs).I would appreciate your view as a legal expert on this issue as it appears to you and any advice on how further to proceed.Thanking you for your assistance.Anthony Redshaw
Thank you for the information. It’s impossible for me to interpret the covenant unless I have either the exact wording of the covenant or the title deed with the covenant in. I have the Official Copy of Title Register of Ivy cottage but there are no covenants in that.I just need the exact wording of the covenant and how this relates to you whether you have the benefit of it on a mutual covenant against your property. Thanks.
Customer: replied 2 years ago.
Why are we talking about Ivy Cottage? The Covenant I am talking about is at 73,Sedgwick St and I have provide you with a copy of the Land Registry title deeds for that property which states the Covenant applicable..
Customer: replied 2 years ago.
Why are we talking about Ivy Cottage? The Covenant I am talking about is at***** Cambridge, I have sent a copy of the title deeds of that property which states the Covenant in section C.
You have only sent me one set of Official Copies from the Land Registry and they are not for***** but for Ivy Cottage.The documents you sent are, Most relevant comments, Full Title deeds (Ivy Cottage), Views from $.37 Phillips Road, Full email from Agent, Comparison of Rear Building line.No Official Copies of*****
Customer: replied 2 years ago.
The Title deed I sent is for the property at*****as defined in Section A of the document. The Owner at the time did not live at this property as it has no residence on it, but her residential Address is shown in section B under PropieterShip register which gives the Address as Ivy Cottage.
The Title deed therefor is the document I you previously.
Thank you. My error. When the document opened, for some reason, it was scrolled halfway down and it was the Ivy Cottage address I was looking at.For the purposes of planning permission, it does not matter whether the covenant regarding the building line is there are not. The planning authorities are simply not bothered and they will grant planning permission regardless of the covenant. The covenant may be enforceable or not but that doesn’t affect the planning issue and is a separate matter altogether.The covenant with regard to the fence is not enforceable because positive covenants like this one are not enforceable against successive owners of the property is freehold.There are 3 problems with the restrictive covenant. The first is the date and things have changed dramatically over the last 118 years and the conveyance from 1898 was put in place to protect the interest of the parties at the time and successors in title and the interests of the successors in title change over the years.The second problem is whether the covenant (regardless of its age) does more than enough to protect any neighbouring property which it was intended to protect.Very often, covenants like these apply to every house on the development or on the road and they are then enforceable by every house owner against every other house owner. However if any of the house owners have breached the covenant and it has remained breached for more than 20 years, then it is no longer enforceable because it would be inequitable for someone to enforce it against a particular house owner but then not enforce it against others. You say that surrounding properties have developments extending from 50 to 58 feet from the front of the property line which does appear to breach this covenant although it depends whether those properties have the same covenant against them, which has simply been ignored.I think you have a better chance of objecting to the planning permission than you have of enforcing the covenant for all the reasons I have stated earlier. If this were to go to court regarding the covenant it is not going to be cheap litigation unless you have insurance that would cover the costs.Your objection in respect of the planning permission would not be in respect of the covenant but would be for the fact that this development would have an overbearing effect on your property. You can mention that it would spoil your view but in actual fact, legally, whilst you have the right to light, you have no right to a view. There is case law on that.Can I clarify anything for you?
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Customer: replied 2 years ago.
Ok I am satisfied with my answer,
The decision on planning approval will be taken by Committee on the grounds of enclosure rather than just the planning department, so it seems I must rely on their decision. It was becoming clear that the Planning department was not interested in the Covenant.Thank you for your assistance, I will rate your reply now.
Thank you.Many local authorities use generic wording and I have seen this on several local authority websites.Please look at the final part of the webpage entitled, Types of issue not to raise. can work the other way of course and you can get consent to do something on a property even though there is no planning consent. The two, planning consent and covenants & permissions, are mutually exclusive.