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Restrictive covenants that delay or prevent land development

It is common for land to be affected by covenants restricting the use of the land.  Often these covenants were imposed a long time ago and the facts and rationale behind the covenants has long been forgotten.  Sometimes it is clear what use is restricted and sometimes it is less than clear.  One way of getting around these issues in a practical way is to obtain insurance but that may not be possible in every circumstance.
A recent case before the High Court has highlighted another route:
Royal Mail Estates Ltd v Pridebank Ltd and others [2015] EWHC 1540 (Ch) (21 April 2015)
Under section 84(2) of the Law of Property Act 1925 it is possible for an interested party to apply to the High Court for a declaration as to the nature and extent of a restrictive covenant.
This recent case concerned the proposed re-development (into residential use) of the post office site in Battersea.  The site was subject to the following restriction:

  1. “Not to use the property or any part thereof for uses other than as a parcels construction office and mechanical letter office telephone exchange or for other Post Office operational purposes or for uses falling within clauses 3, 4 and 10 of the Town and Country Planning (Uses Classes) Order No.1385 of 1972 or housing and purposes ancillary to Post Office operation uses or to the said classes 3, 4 and 10 including offices and housing.
  2. Not to use the property or any part thereof for office development, except as ancillary to the uses permitted in the foregoing clause.”

The question for the High Court was whether the highlighted words above were independent of the rest of the wording or whether the housing could only be ancillary to the use as a parcels construction office.  The High Court decided that the highlighted words were not ancillary to the rest of the wording and that residential use was allowed.
If your land is subject to old or unclear restrictions on use then please contact Tom Warrender for further information.