Restrictive Covenant and Planning Permission Explained

You can have planning permission and still be unable to build what has been approved.

The reason is simple. Planning permission and a restrictive covenant deal with different things. Planning permission is a public planning decision. A restrictive covenant is a private restriction affecting land. One does not automatically remove the other.

This catches people out because a council can grant permission without deciding whether a private covenant prevents the development. If a covenant is relevant, you need to deal with the planning and property-law sides separately.

Restrictive covenant and planning permission are separate controls

A planning application asks the local planning authority whether the proposed development is acceptable in planning terms. The decision may deal with matters such as design, amenity, highways, heritage, ecology and planning policy.

A restrictive covenant is different. It is a private land restriction created through a deed or transfer. It might restrict the number of homes, prohibit certain uses, limit building on part of a site or require land to remain undeveloped.

As a general rule, the local planning authority should determine the planning application on its planning merits rather than deciding private covenant rights. A restrictive covenant is a civil matter between the landowners who carry the burden and benefit. Its existence does not normally prevent planning permission being granted.

The other side of that coin is important. Planning permission does not remove, override or make the covenant unenforceable. You can therefore have a perfectly valid planning permission which cannot safely be implemented until the private covenant position has been resolved.

That is why a site can have a perfectly valid planning permission while the owner still needs a separate private-law solution before carrying out the development.

Check the title before spending heavily on a scheme

A restrictive covenant is not a reason to abandon a planning idea automatically. It is, however, something to identify early.

If the title reveals a restriction, sensible early questions include:

• What exactly does the covenant prohibit
• Which land carries the burden
• Who, if anyone, has the benefit and can enforce it
• Whether the proposed development actually breaches the wording
• Whether a release or variation can be negotiated
• Whether an application to the Upper Tribunal may be available

Those are land-law questions and should be checked with an appropriate solicitor or barrister. Planning Geek can advise on the planning position and work alongside the legal adviser where the two overlap.

Who benefits from the covenant and how old is it?

Understanding the burden on your title is only half the job. You also need to establish who has the benefit of the covenant and whether that benefit is still enforceable.

That can be straightforward where the original transfer clearly identifies neighbouring land which still exists in the same ownership. It can be much harder with an old covenant, where land has been divided, sold repeatedly or reorganised and the current beneficiary is not obvious from the registered titles.

The age of the covenant is relevant, but an old covenant does not simply expire. In practice, older covenants can be harder to enforce because the beneficiary may be difficult to identify, the character of the area may have changed or the covenant may no longer secure a practical benefit of substantial value. Those are matters for legal advice and, where appropriate, an application under section 84.

Do not assume that an old covenant is harmless simply because of its age. This is particularly important where a local authority, Homes England or another public body is clearly still the beneficiary. There is no special rule making every council covenant permanently enforceable, but if the beneficiary is known and still administers the covenant, the uncertainty which often reduces the practical risk with very old private covenants may not exist.

If a restrictive covenant appears on the title, always take legal advice before deciding whether to ignore it, approach the beneficiary or proceed with development.

What about restrictive covenant indemnity insurance?

A solicitor may sometimes suggest restrictive covenant indemnity insurance where the risk of enforcement is considered low enough to insure.

Insurance does not remove the covenant and it does not give permission to breach it. It is a financial protection against specified consequences of enforcement, subject to the wording, exclusions and level of cover in the particular policy. It should not be treated as the same thing as a release or variation of the covenant.

There is also an important practical trap. If indemnity insurance may be an option, do not contact the potential beneficiary before taking legal advice. Approaching the person or body who may enforce the covenant can make insurance unavailable, and an existing policy may restrict contact or disclosure without the insurer’s consent.

That means the order in which you deal with the problem matters. Speak to the solicitor first, decide whether insurance, negotiation or a section 84 application is the appropriate route, and only then make contact if advised to do so.

Can a restrictive covenant be changed or removed?

Section 84 of the Law of Property Act 1925 gives the Upper Tribunal power, in certain circumstances, to discharge or modify a restriction affecting land.

The legislation contains several statutory routes. One important route applies where a covenant prevents a reasonable use of land and does not secure a practical benefit of substantial value or advantage to the person entitled to it, or where the restriction is contrary to the public interest. The Tribunal must also consider whether money would adequately compensate for the loss or disadvantage caused by changing the restriction.

Another route can apply where changing the restriction would not injure those entitled to its benefit.

Satisfying a statutory ground does not always end the matter. The Tribunal then has a discretion over whether the covenant should actually be discharged or modified and can require compensation or other conditions.

Planning permission can still be important evidence

Planning permission does not override the covenant, but that does not mean it is irrelevant.

When the Upper Tribunal considers whether a proposed use is reasonable, section 84 requires it to take account of the development plan and the pattern of planning permissions and refusals in the area in the circumstances set out by the legislation.

The 2026 Upper Tribunal decision in MDM Civil Engineering Limited v Scott Morgan [2026] UKUT 347 (LC) gives a useful current example. The Tribunal said that obtaining planning permission was not a guarantee that a covenant would be modified, but it was a persuasive indicator that the proposed use was reasonable.

MDM wanted a third house, but the covenant allowed only two

The MDM case concerned land at Gray Lane, Witham St Hughs in Lincolnshire. A 2019 transfer restricted the property so that it could be used only as two private dwellinghouses.

Two houses were built. The owner later wanted a third dwelling on the remaining land.

There had already been several attempts to obtain planning permission. One application was withdrawn, two refusals were dismissed at appeal and a fourth proposal eventually received permission from North Kesteven District Council on 16th July 2025.

The planning permission solved the planning problem. It did not solve the covenant problem, so MDM applied separately to the Upper Tribunal under section 84.

The covenant was modified, but £37,500 still had to be paid

Ground (a), based on obsolescence, failed. The Tribunal found that grounds (aa) and (c) were made out and then exercised its discretion to modify the restriction so that the third dwelling could be built.

The modification was tightly tied to the planning permission. It allowed the approved single-storey dwelling, together with a renewal or later permission for a dwelling that was not materially different or higher.

The Tribunal recorded that Rysa and Mr Broddle’s account of the negotiations was untested and not formally in evidence. However, the judge said there were “clear reasons to believe” the original purchase price had been reduced because the site was restricted to two houses and that the account had “the ring of truth”. The Tribunal therefore considered it just to require a payment of £37,500 to Rysa.

That is a useful warning for developers. Even where modification is possible, there may still be a real financial cost.

A recent covenant is not automatically untouchable

The MDM restriction was only just over six years old when the application was made. Its recent age counted against modification, particularly because of the connection between the applicant and the original purchaser.

The Tribunal nevertheless explained that there is no absolute rule protecting every recent covenant from modification. Age and the circumstances in which the covenant was created are factors in the balance, not an automatic answer.

In MDM, the Tribunal ultimately considered that the permitted third house would finish the development and that, on balance, the restriction should be modified subject to the payment condition.

Make sure the person objecting can actually enforce the covenant

MDM also contains a useful reminder about identifying who has the benefit of a covenant.

The owner of one of the existing houses objected to the application, but during the Tribunal proceedings accepted that his own title carried the burden of the restrictions rather than their benefit. The Tribunal found that he was not the person entitled to enforce the relevant covenant.

That does not mean an apparent covenant can simply be ignored. Establishing who has the benefit, whether the benefit has passed with land and whether the covenant is enforceable can be technically difficult. It is a job for the property lawyer dealing with the title.

Should you apply for planning permission before sorting the covenant?

There is no single answer for every site.

Planning permission can be valuable evidence that a proposed use is reasonable, as MDM demonstrates. On the other hand, spending heavily on drawings, reports and an application before understanding a serious private restriction can leave you with a permission that is expensive or impossible to use.

The better approach is usually to understand both tracks early. The planning case can then be developed alongside advice on the covenant, rather than discovering the private restriction after permission has been won.

If you are considering buying land subject to an uplift, overage or other development restriction, our guide to planning uplift and hope value may also be useful.

Planning permission is not permission from every land interest

The wider lesson goes beyond restrictive covenants. Planning permission confirms that the planning system permits the development, subject to its conditions and other planning controls. It does not itself give a right to build on somebody else’s land, remove private rights or settle title disputes.

For planning work, Planning Geek can help assess the proposal, prepare the application and deal with the planning evidence. Where the obstacle is a restrictive covenant or another private land right, we can work with your solicitor while keeping the planning strategy aligned.

Relevant legislation for a restrictive covenant

The legislation.gov.uk page includes a Changes to Legislation panel which should be checked when relying on the statutory wording.

• Law of Property Act 1925, section 84

Other Planning Application Sections

Restrictive Covenant Page Created: 20th September 2026