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Restrictive Covenant Indemnity Insurance

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  • Restrictive Covenant Indemnity Insurance


    I have this situation about our conservatory. We have started to build a conservatory after confirmed with our builder that planning permission was not required in our area if it is build within the permitted size. However, after the building work started and the roof is up, local planning officers visited us to inform that they had removed permitted development right from our property when the initial planning permission was granted to the developer. Our property is quite a new built, initially a land was bought by the developer in 1996. From the chain of documents we obtained from previous owner, we can see that the deed was drawn in 1996 when the previous owner bought the property. The deed says specifically we "can" build a convervatory up to 10 ft high. However, local planning officers say the deed is only a civil thing and it is not reflecting the ristrictions imposed by local authority. In the past local authority search didn't find this restriction and the paper the planning officers presented to us has only a hand scribble for this removal. They also showed us the initial planning permission given to the developer in 1996, which indeed says the removal of permitted development right. However, this was not passed onto the deed written in the same year, which was authorized by Land Register.

    We are currently applying for retrospective planning permission (conservatory is not finished), but I would like to know what the rules are for this situation. It appears we inherited restrictive covenant indemnity insurance from the previous owner - will it cover the cost of appeal if the planning application was refused?

  • #2
    Hi There,

    The first point to make is restrictive covenant insurance is pointless, the insurance company seeks counsels opinion (gets a barrister to advise) on whether the restrictive covenant is enforceable against the current breach, who my derive the benefit of the covenant and so forth. If the barrister effectively says - no chance of enforcement they charge you a premium to 'insure' you against this non existent risk, if there is a risk of enforcement they will not provide it at all or request the value of the established work (i.e. the same value as you conservatory or similar).

    The permitted developments rights were most likely removed because the property was built or severely adjusted in the past without planning permission and the then owner applied for a certificate of lawful development, retro planning in other words. The planning officer will say, no permitted development rights for the property. This is common.

    As for searches showing it up and the like, it depends on the nature of the planning officers directions. The covenant if there is one would clearly be to the benefit of the local authority and their rights of enforcement are maintained as it was never based upon conveyance so need never be subject to successor in title or the titles being subdivided.

    A covenant is a civil agreement recorded inside your title deeds, or more realistically given compulsory registration your Title register.

    I'm not a computer person so i don't know if you can - but if you would like further assistance, private message me if that is possible.


    • #3
      Planning conditions do not show at the Land Registry and Planning Departments do not know anything about restrictive covenants. If you get planning permission to do something you can still be stopped under a restrictive covenant and equally if there is no covenant, that does not mean you do not need planning permissiion. They are entrely separate.

      Builder's reply was typical, simply going by the general permitted development rules. These can be taken away by express planning condition and a lot of Councils do this on new developments, so the builder should not have advised you about something he did not know about. You should have checked with the Council first.

      The covenants in the deeds have nothing whatever to do with Planning and the indemnity insurance will not cover you for an appeal because it is not to do with planning conditions but restrictive covenants.

      As a conveyancing solicitor I believe the information given in the post to be useful but I accept no liability except to fee-paying clients
      RICHARD WEBSTERwww.rwco.co.uk
      As a conveyancing solicitor I want to be helpful (England/Wales only) but can't accept liability for this.