With the new Labour government setting ambitious housing targets, Stuart Miles, senior associate at leading Midlands law firm Wright Hassall, explores restrictive covenants and how they can prevent agricultural land from being developed.
With the government’s promise to amend planning regulations to speed up the building of new housing, there will be renewed interest among farmers and landowners in exploring whether they have suitable land for development.
However, what cannot be overlooked is the possibility that the land may be subject to a restrictive covenant which imposes constraints on what the land can, and cannot, be used for.
Restrictive covenants are not as unusual as one might think and can often be overlooked, with some landowners not even being aware that one is in place.
Sometimes it can even take until a planning application is submitted for these to come to light, and having them discharged or amended can often be complex.
The importance of restrictive covenants was explored in a recent case before the Upper Tribunal (Lands Chamber), Robertson v Pace [2024] UKUT 123 (LC). In this case, the applicant, Mr Robertson applied to discharge a covenant that restricted the use of part of his land to agricultural purposes only. His neighbouring landowners, Mr & Mrs Pace, objected to his application.
The land in question, located on the Kent coast between Sandwich and Ramsgate, was mostly used for arable farming and was subject to a restrictive covenant that stopped it from being used for any purpose other than agricultural.
During the case, one of the arguments deployed by Mr Robertson was that the covenant had been required as a condition of planning permission granted for the construction of a tannery and wastewater treatment works, neither of which were ever built, on adjacent industrial land.
Restricting the surrounding land to agricultural use reduced the risk of any potential odour from the proposed works being a problem.
His argument that this precaution was no longer necessary as the proposed development never materialised was rejected by the Tribunal which concluded that there was ‘no reason to infer that it [the restriction] was intended only to meet a short-term objective…the prospect of building something else, perhaps with the possibility of unpleasant emissions, remains.’
The Upper Tribunal also decided that discharging the restrictive covenant could ‘injure’ Mr & Mrs Pace.
This case highlights that the Tribunal may require the planning history of an area to determine whether it will discharge or modify a restrictive covenant impacting land. Research into the local area is advisable and utilising the local councils’ online planning portals will help with such a task.
In some instances, the history for older planning applications may not be available online and enquiries will have to be made with the relevant department to obtain hard copies. Obtaining this information at an early stage can allow parties to prepare thorough submissions ahead of making an application.
So while there are opportunities for restrictive covenants to be discharged or modified, landowners should do the groundwork before looking into developing land and understanding if a restrictive covenant is in place.
This would involve contacting a solicitor to look into this at the earliest opportunity and then working with them to assess options.
At the time of writing, it is yet to be seen whether the government’s new housing targets will make it easier to have restrictive covenants discharged – particularly on land with planning permission already in place – but landowners should understand what restrictions are in place from the outset to avoid complications further down the line.