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ExpertUKLawyer
ExpertUKLawyer, Solicitor
Category: Property Law
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Experience:  Master of Laws
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I live next door to an old school site that was sold to a

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I live next door to an old school site that was sold to a housing developer. The deeds clearly state that the owner of the property has to proved and maintain boundary walls of stone construction 4ft in height on 3 sides of the site. The application for planning shows that the developer has ignored this requirement. As it stands parts of these walls will be in the ownership of individual house owners and as part of common land as it is unlikely that the council will take over responsibility for the common areas and roads. I have raised the issue in a comment during the consultation period for the planning application. Is there anything else I should do?
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Yes as I have said, in comments objecting to the planning application. My neighbour who is directly affected, as one side wall runs along the length of his property has also sent a letter and filed a copy with his solicitor.
JA: Have you talked to a lawyer about this?
Customer: No, he is reluctant as an 80 year old to face the cost of a solicitor.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No that covers the issue.

I understand you have objected to a planning application on the grounds that the development would breach the requirement of the owner of the site to build a wall on three sides of the site and maintain it.

In summary, an anticipated breach of the positive promise to build and maintain a wall on the title of the site by the developer is not a valid planning issue that the planning officers and planning committee can take into account when deciding the merits of the planning application. In any event, unless a particular conveyancing device is used, it is unlikely that the positive promise to build and maintain a wall can be enforced against the new owner (the developer) because a positive covenant does not run with the land. You should instead object to the planning application using a ground that is a valid planning issue. I have listed some potential grounds that could be used. If planning permission is provided, this does not mean that the developer has complied with any covenants on the title of the site. Therefore it is important to identify any potentially enforceable covenants on the title of the site that could be used to prevent the development going ahead if planning permission is issued.

As for next steps, I would recommend speaking to the case officer to let them know that you have included an objection in the comments section, but considering my advice, you may be making a further objection. I recommend you then write to the case officer explaining your concerns about the proposal and the impact you feel it would have on the matters you use to object. You might also find it helpful to speak to your local councillor. They may be willing to help and might speak at the committee on your behalf or to the planning department. Please also let me know if you would like me to review the title of the development site to check for any conveyancing devices which may make the obligation to build and maintain a wall enforceable against the developer, and any restrictive covenant that could be used to prevent the development going ahead if planning permission is granted. Please be aware that even if a covenant on the title could restrict the development, the developer has a right to apply to the Lands Chamber of the Upper Tribunal to have the covenant modified or discharged. Sometimes developers pay landowners money to waive their right to enforce a covenant.

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Establishing which planning issues should be used when objecting to a planning application is a complex question as every application is different.

The planning officers and planning committee can only take valid planning issues, known as material planning considerations, into account when deciding on the merits of a planning application. Reasons that are immaterial planning considerations should not be used.

I do not know the details of the specific application and so I am only able to put together a general list of grounds you could use to object. You should provide detailed evidence to accompany any grounds for objection. This list is not definitive.

Increase to flood risk.

Loss of ecological habitats.

Loss of trees.

If the development is in a conservation area, any adverse effect of the development on the character and appearance of the conservation area.

If there is a listed building nearby, any effect of the development on the setting of the listed building.

Highway safety if supported with evidence.

Inadequate access.

Traffic generation.

Inadequate parking and servicing.

Local, regional, national, and strategic planning policies.

Proposals in the development plan.

Negative effects on amenity particularly due to noise, disturbance, overlooking, nuisance, and loss of daylight.

Over-development or overcrowding of the site, especially where the proposal is out of character in the area.

Adverse public visual impact of the development, especially on the landscape or locality.

Detrimental effect of proposed development on the character of the local area.

Design issues, including materials.

It is the responsibility of the local planning authority to decide how much importance should be given to each issue when weighing up the merits of the application against any harm that might be caused by the proposed development. While the local planning authority must pay regard to any valid objections, they may not agree with them. They might decide to grant a permission while imposing conditions to control the development and to mitigate the issues raised in the objection.

A ‘positive covenant’ is a promise to do something. A common example includes a covenant to build and maintain a wall.

Unlike ‘negative’ or ‘restrictive’ covenants, the burden of a positive covenant does not ‘run’ with the land and so the promise cannot be enforced against subsequent owners or occupiers without structuring the transaction as a lease or by using one of the 'conveyancing devices’ developed for that purpose.

The most used devices for making the burden of a positive covenant ‘run’ with the land are:

Compulsorily renewed covenants - the most effective and commonly employed method is to require the original maker of the promise to obtain on any sale of its property a new covenant in favour of the covenantee (the person with the benefit of the covenant). This approach results in a new covenant directly enforceable by the covenantee. The obligation to obtain a new covenant is usually protected by entering a restriction on title so that registration will not occur before the covenantee is satisfied that the new covenant is in place. The process is repeated on each subsequent sale. If you would like me to check the title of the development site for this restriction, please let me know. I can do this for you by providing a premium service which I will offer if you would like me to.

A chain of covenants - on each sale of the land an indemnity covenant is obtained in favour of the seller. The indemnity covenant is directly enforceable by the seller against its successor and so can be relied on if the covenantee seeks to enforce against the original maker of the promise. This chain of personal covenants is easily broken. Even where the chain is complete, enforcement is indirect and involves damages passing down the ‘chain’. If you would like me to check the title of the development site for an indemnity covenant, please let me know. I can do this for you by providing a premium service which I will offer if you would like me to.

An estate rent charge with a right of entry - this method is highly effective but draconian (and, in practice, rare). If the positive covenant is not performed, the rent charge owner may enter the land, carry out the works and recover the costs from the defaulting landowner or occupier. It is also open to the rent charge owner to re-enter the land – in a process that is like forfeiting a lease. If you would like me to check the title of the development site for an estate rent charge, please let me know. I can do this for you by providing a premium service which I will offer if you would like me to.

The Lands Chamber of the Upper Tribunal can currently discharge or modify restrictive, but not positive, covenants, where the applicant can show that one of the grounds set out in Law of Property Act 1925, section 84 applies. The most used grounds are that the covenant has become obsolete or where it impedes reasonable use or development. This is a potentially expensive procedure, but developers have the comfort of the ability to use it which can be useful when negotiating for the release of covenants.

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