Does Planning Permission Override a Restrictive Covenant? No: Here's What to Do Instead

01

Why Planning Permission and Covenants Are Separate

Planning law and covenant law do different jobs. The Government's planning guidance says planning is concerned with land use in the public interest, so purely private interests, such as the effect on a neighbour's property value or loss of private rights to light, cannot be material considerations (PPG 21b-008). A covenant is a private promise between landowners, enforceable by the person who benefits from it, whatever the council has decided.

Permitted development is no different. The General Permitted Development Order grants planning permission for the classes of development in Schedule 2 (art 3(1)). So the Upper Tribunal's statement applies equally to a rear extension built under permitted development as to one with a full planning permission.

It also works in reverse: planning authorities do not police covenants. In Alexander Devine (below) the Supreme Court observed that the council seemed not to have been aware of the covenants and that, in any event, it was unlikely to have viewed it as its role to use its planning powers to ensure compliance with them (judgment, para 13). See also what are material planning considerations. The consequence is that you can hold a planning permission for something you cannot lawfully build.

02

Step 1: Find Out What Covenants Affect Your Land

1. Get the HM Land Registry property summary. It is free and states whether there are any "restrictive covenants". To see the wording you must buy the title register, which costs £7 (GOV.UK, as at October 2026). The register usually lists the covenants, but in some cases it will not include the details and will say which documents do.
2. Read the charges register. HM Land Registry says notices protecting third-party interests over a registered estate are almost always entered in the charges register (Practice guide 19, section 2.1). An entry matters: the priority of an interest that is the subject of a notice in the register is protected against a later buyer (Land Registration Act 2002 ss 29 and 32).
3. Chase the old conveyance if the register points to one. The Upper Tribunal warns that land may carry covenants imposed in the 20th or even 19th century, and that old conveyancing documents may have to be inspected even where the land is registered.
4. Do not expect the register to tell you who benefits. The Tribunal's guide says the register usually shows land that is subject to covenants but not land that has the benefit of covenants over other land.

03

Step 2: Is the Covenant Enforceable?

Whether a covenant bites depends on its words and on who has the benefit. In outline, from the House of Commons Library's briefing on freehold covenants (updated 5 May 2026):

• It must be restrictive, not positive. The burden of a restrictive covenant can bind successors in title; a positive one, such as an obligation to repair or build a fence, generally does not.
• Someone must have the benefit. The benefit must pass to them by annexation, assignment or a scheme of development. Section 78 of the Law of Property Act 1925 treats a covenant relating to the covenantee's land as made with successors in title, and for restrictive covenants, treats "successors in title" as including the owners and occupiers of the land intended to be benefited.
• The wording must be clear. The Library notes covenants are often ambiguous and the meaning and effect must be carefully considered.

The Upper Tribunal's summary of who can enforce is simple: only the person who imposed the covenant, and anyone who owns any of that person's land later, can enforce it. It also warns that, with old covenants, it can be hard to tell who that is. In a Tribunal case, an applicant can dispute that an objector is entitled to the benefit, and the objector must then prove it, usually with their registered title and older conveyances (Tribunal guide, section 3.4). That is the battleground in many real disputes.

Four myths

04

Common Covenants and What They Say

The Tribunal's guide gives the typical purposes: to prevent the buyer using land for business, to prevent building on it, or to ensure that they keep to a particular style or size of building (Tribunal guide). The Commons Library adds examples such as limiting use to residential purposes, prohibiting trades, forbidding nuisances, restricting the number or type of buildings, requiring observance of a building line, and restricting height.

Whether your plan breaches a covenant turns on its exact words. Questions that prompt people to check include:

• Extensions and outbuildings. Does the covenant forbid any building or erection, or only without consent or plans approved by a named person? (See do I need planning permission for an extension.)
• Fences and walls. Does it mention boundary treatments or height? See fences.
• Front gardens and driveways. Some estates restrict hard standing or parking. See driveways.
• Garage conversions. Covenants and planning conditions are separate controls; check both. See garage conversions.
• Business use, caravans and subdivision. Check the use restrictions.

These are things to look for, not rules: your deeds govern.

05

Step 3: Your Four Options

1. Ask the beneficiary to consent or release

Agreement is the cleanest solution. The Commons Library briefing explains that for a covenant to be released, the people with the benefit must join in a deed with the owner of the burdened land, and the beneficiary may request compensation for agreeing. If a developer or a neighbour is asking for a payment, we found no statute or official guidance that sets a scale (section 84 and the Tribunal's guide do not): what is paid is a matter of negotiation, and the alternative is the Tribunal route below. Get any consent in writing, in a form your conveyancer approves, and check that everyone with the benefit has agreed.

2. Covenant indemnity insurance

When it is not possible to ascertain who has the benefit, for example because the covenant is old or the land has been divided and sold on, successors in title may obtain indemnity insurance against the risk of someone enforcing it. Points to understand:

• It is a financial remedy. A policy typically covers compensation or settlement payable to beneficiaries and legal costs (Stephensons Solicitors). The covenant itself stays in place.
• It carries conditions. The same firm warns that if an insured party contacts the beneficiaries of the covenant or alerts potential claimants to the breach, the policy may be invalidated. Policies differ, so read yours and ask the insurer in writing before you contact anyone. What happens on a breach depends on the wording: some policies let the insurer refuse or reduce a claim rather than treating the policy as void (see planning indemnity insurance for a worked example).
• It is a different product from planning indemnity insurance, which covers a lack of planning permission or building regulations approval.

3. Apply to the Upper Tribunal to discharge or modify it (LPA 1925 s 84)

The owner of land, freehold or leasehold, that is subject to a restrictive covenant may apply to the Upper Tribunal (Lands Chamber) to have it discharged or modified. The Tribunal has no power over positive covenants or easements such as rights of way. The grounds, in s 84(1), are:

• (a) the restriction ought to be deemed obsolete because of changes in the character of the property or neighbourhood or other circumstances;
• (aa) the restriction impedes some reasonable use of the land and, under s 84(1A), either secures no practical benefits of substantial value or advantage to those entitled to it, or is contrary to the public interest, and money will be adequate compensation;
• (b) the persons entitled to the benefit have agreed, expressly or by implication through their acts or omissions; or
• (c) the discharge or modification will not injure the persons entitled to the benefit.

The Tribunal must take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period and context in which the restriction was imposed (s 84(1B)). So a planning permission does not remove the covenant, but the development plan and the pattern of planning decisions are statutory considerations in a section 84 application. The Tribunal can order the applicant to pay compensation, either for loss or disadvantage suffered, or for the effect the restriction had on the price when imposed (s 84(1)).

The process, from the Tribunal's guide:

1. The applicant files Form T379 with the application fee. The Tribunal gives directions for notice to those who may benefit, which may include newspaper advertisements, site notices or direct notices (Form T380).
2. Anyone wishing to object files a notice of objection (Form T381) within one month of notice; there is no fee for objecting.
3. Within 14 days the applicant says whether they accept each objector's entitlement; disputes over entitlement are decided on the evidence.
4. There is a hearing, usually at the Royal Courts of Justice in London unless local arrangements are made. Successful objectors are generally awarded reasonable costs; successful applicants cannot expect their costs.

An order is binding on everyone entitled to the benefit, whether or not they took part (s 84(5)). Lease covenants can be brought within s 84 once a term of more than 40 years has run for 25 years (s 84(12)). If you are sued over a breach, you can apply to the court for leave to apply to the Tribunal and a stay of the proceedings (s 84(9)). The Tribunal's guide advises taking legal advice before applying.

4. A court declaration (LPA 1925 s 84(2))

The court can declare whether land is affected by a restriction, or what the true construction of the instrument is and whether and by whom the restriction is enforceable (s 84(2)). This suits cases where the wording is ambiguous or you doubt that anyone can enforce it.

Or: redesign

If the covenant restricts a particular building line, height or use, a revised design may avoid the breach entirely. In Alexander Devine, the developer could have built on land not subject to the covenant and the council indicated it would have approved a scheme that honoured the covenants (judgment, paras 14 and 58).

06

Why Building First Is Risky: Alexander Devine

Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 (6 November 2020) was, in the Court's words, the first time the highest court had decided an appeal on section 84 (para 1). It is the clearest warning about building first:

• Facts. A 1972 conveyance contained covenants that no building be erected on a plot and that it be used only as open space for parking (paras 7–8). The developer knew of the covenants when it bought the site (para 11), obtained planning permission in March 2014 (paras 12 and 16), and kept building after the farmer's son wrote to object in September 2014 (para 18). It then applied to the Upper Tribunal for modification of the covenants to cover the 13 homes it had built.
• Tribunal and appeals. The Upper Tribunal modified the covenants on condition of £150,000 compensation (para 27). The Court of Appeal reversed. The Supreme Court dismissed the appeal by Housing Solutions Ltd, which had taken over the application from the developer, Millgate, though it rejected three of the Court of Appeal's four grounds and decided the case on the Tribunal's exercise of discretion (paras 2 and 74).
• Why. The Court said the Tribunal failed to take into account two factors when exercising its discretion: that a deliberate ("cynical") breach had created a land-use conflict that could have been avoided by building on unencumbered land; and that, had the developer applied under s 84 before building, it would likely have failed the public-interest ground (paras 58–59). The Court re-made the decision by refusing the application (para 77).
• What it left open. The Court noted its decision did not determine whether the charity could obtain an injunction to stop the homes being occupied or have them removed, but said the decision would strengthen the charity's hand in any financial settlement (para 78).

Two limits. The Court described its decision as being for "this exceptional case" (para 77), and the developer had acted in deliberate breach; an owner who finds out about a historic covenant after buying is in a different position. But the practical lesson holds: applying to the Tribunal or agreeing a release before you build is safer than asking for forgiveness afterwards. A court can also award damages instead of, or in addition to, an injunction (Senior Courts Act 1981 s 50).

07

If You Are Buying a Property With a Covenant Problem

• Ask your conveyancer to read the charges register and any older conveyances before exchange, and to confirm whether past works breached them and whether consent was given or insurance taken out. See buying a house with no planning permission, which covers the wider checks.
• If an indemnity policy is being considered, check its conditions before anyone contacts the beneficiary (see Step 3).
• A covenant is a private right between landowners, so the place to look is the HM Land Registry title register (Step 1), alongside the council's planning record. See how to check the planning history of a property for the planning side.

08

Wales, Scotland and Northern Ireland

Where the rules differ

• Wales: the same law. Section 84 of the Law of Property Act 1925 extends to England and Wales, and the Upper Tribunal (Lands Chamber) deals with applications.
• Scotland: a different system. Burdens are "real burdens" under the Title Conditions (Scotland) Act 2003; a real burden is enforceable by a person with both title and interest (broadly, an owner of the benefited property who would suffer material detriment). The Lands Tribunal can discharge or vary title conditions on application. Take advice from a Scottish solicitor.
• Northern Ireland: the Property (Northern Ireland) Order 1978, article 5 lets the Lands Tribunal modify or extinguish an "impediment" that unreasonably impedes the enjoyment of land, taking account of the development plan and planning permission trends. Take advice from a Northern Ireland solicitor.

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Related Guides

• Leasehold Alterations: Do I Need My Freeholder's Permission?
• Buying a House With No Planning Permission
• Planning Indemnity Insurance Explained
• Do I Need Planning Permission for a Garage Conversion?
• Do I Need Planning Permission for a Fence?
• Do I Need Planning Permission for a Driveway?
• What Are Material Planning Considerations?

This guide is for general information only and does not constitute legal advice. Restrictive covenants and the Upper Tribunal process are complex. Take advice from a solicitor experienced in property law before building in breach, contacting a beneficiary or applying to the Tribunal.