The right to undertake development under planning law, if planning permission is obtained, is entirely separate from an applicant’s right to do so under private law and it is incorrect to assume that the grant of planning permission supersedes those rights. This important point of law is frequently overlooked, but a recent case, Mortimer v Bailey [2004] EWCA 1514; [2004] PLSCS 249, considered the issue.
The appellants had erected a conservatory in contravention of a restrictive covenant, which stipulated that no alterations could be carried out without the prior consent of the respondent adjoining landowners, subject to their consent not being unreasonably withheld. The respondents voiced their objections, but the appellants applied for planning permission, and, once granted, proceeded to construct the conservatory.
The respondents sought legal advice and realised the breach of the restrictive covenant. They lodged their objections with the appellants and, after the appellants contended that they were unreasonably withholding consent, sought an interim injunction. An interim injunction wasn’t granted owing to the delay in seeking it, but a mandatory injunction was subsequently approved, ordering the removal of the conservatory. The delay was found to have been immaterial.
This case serves as a reminder to landowners that it is often not just the question of planning permission that needs to be addressed when a development is proposed. In this instance, the court decided that despite the appellants grant of planning permission and the respondents’ delay in initiating proceedings, an adequate remedy given the breach of covenant would be the demolition of the conservatory.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
The right to undertake development under planning law, if planning permission is obtained, is entirely separate from an applicant’s right to do so under private law and it is incorrect to assume that the grant of planning permission supersedes those rights. This important point of law is frequently overlooked, but a recent case, Mortimer v Bailey [2004] EWCA 1514; [2004] PLSCS 249, considered the issue.
The appellants had erected a conservatory in contravention of a restrictive covenant, which stipulated that no alterations could be carried out without the prior consent of the respondent adjoining landowners, subject to their consent not being unreasonably withheld. The respondents voiced their objections, but the appellants applied for planning permission, and, once granted, proceeded to construct the conservatory.
The respondents sought legal advice and realised the breach of the restrictive covenant. They lodged their objections with the appellants and, after the appellants contended that they were unreasonably withholding consent, sought an interim injunction. An interim injunction wasn’t granted owing to the delay in seeking it, but a mandatory injunction was subsequently approved, ordering the removal of the conservatory. The delay was found to have been immaterial.
This case serves as a reminder to landowners that it is often not just the question of planning permission that needs to be addressed when a development is proposed. In this instance, the court decided that despite the appellants grant of planning permission and the respondents’ delay in initiating proceedings, an adequate remedy given the breach of covenant would be the demolition of the conservatory.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
