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Stuart J
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19937
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Dear We have now drawn up plans and spoken to planning.

Resolved Question:

We have now drawn up plans and spoken to planning. Planning are extremely enthusiatic about our plans, and will support the application. However, we have a problem. They will only register the plans is we have an email of support from Berneslai Homes, the management organsation that manages the other semi-detached house on behalf of Barnsley Council. Are the planning department within their rights to request this?


 


Here is the email they sent to back up the very enthusiastic phone conversation with our Architectural Technician:


 


Dear XXXXX


 


Thank you for your email and attached plans. I have looked at the plans and have no objection to the design put forward. I would need to see some scale plans of the proposed garage with any submission, to ensure that no significant overshadowing would take place of the neighbours garden. I can confirm that a full application will be required which will need to include the demolition of the existing dwelling, making good of attached dwelling and erection of new detached dwelling and garage. It is important to ensure that you have the approval of Berneslai Homes prior to the submission of a planning application, given that the development involves works to one of their properties. A letter or email of support/no objection will suffice. I hope this helps,


 


Kind regards


 


Laura Bibby Planning Officer (Outer Area) Development Management Best wishes, David

Submitted: 11 months ago.
Category: UK Property Law
Customer: replied 11 months ago.
Relist: Other
I sent the question to a specific legal specialist, then realised that he was probably on holiday, so wouldn't be able to reply.
Expert:  Stuart J replied 11 months ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name isXXXXX and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.

Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case. I will be online and off-line all day most weekdays and weekends.

Is this a follow up to a previous question? If so, can you please send me a link to the original post so that I can get a bit more information regarding your current situation.
Customer: replied 11 months ago.



Thank you. The title and date/time sent are as per below. It was sent to an expert with a name of "Joshua".


We have bought an ex-council house. It has the following covenant,


Asked by you on Friday, July 19, 2013 2:07 PM



Expert:  Stuart J replied 11 months ago.

You can wait for Joshua if you wish but you did relist the question.

I need to know what the covenant is and exactly what your question is please. Thank you

Customer: replied 11 months ago.


Dear Law Denning,


 


The covenant is as follows:


 


(4) Not to alter demolish or make any additions whatsoever to the property or outbuildings or to erect any further outbuildings or boundary walls or fences without previously submitting plans showing such alterations additions or erections and obtaining consent of the Head of Housing for the time being of the Council in writing thereto (in addition to any planning permission or building regulation consents) such consent not to be unreasonably refused and in particular but without prejudice to the generality of the foregoing:-


(a) Not to erect any fence or wall or cultivate any hedge which exceeds the following heights


(i) along the front boundary of the property hereby conveyed one metre


(ii) along the side boundaries of the property hereby conveyed one and a half metres


(iii) along the rear boundary of the property hereby conveyed two metres


(b) To ensure that any fence or wall erected by the Purchaser is of the same type as those in the immediate vicinity


 


To me, this suggests it was written specifically to limit fence and hedge heights, and that they are applying the covenant unreasonably. No matter; we will go for planning permission, and if planning consent is given, use this to note that their refusal would be unreasonable (Rickman v Brudenell-Bruce [2005] ?), and that we may, regrettably, have to sue for breach of covenant.


 


However, first steps first. My query is: Planning have said they will not validate my application until there is written consent from the arms length management organisation of the other semi-detached property. Are Planning within their rights to require this? If not, given that we have excellent relations with the Planning Officer, who I suspect is being leaned on with regards XXXXX XXXXX requirement, how can we politely, but firmly, note this?


 


Best wishes,


 


David


 


 

Expert:  Stuart J replied 11 months ago.


Can I summarise the facts please?

There is a covenant on the property preventing, inter-alia, fences
et cetera and the buildings being demolished and re-erected without consent of
the head of housing of the Council?



The planning department are happy with your plans but for some
strange reason they want consent from a management company.



You want to know can they insist on that.



Is that a reasonable summary?



If so, I need to know what has this got to do with the "arms
length management organisation of the other semi detached property"?



They are presumably Berneslai homes. Why does this require work to
one of their properties?



Is there a problem getting this consent or not?



The covenant appears to require consent from the head of housing
of the Council and presumably, as the planning department are happy with this,
consent from the head of housing is not a problem.



I think there's a bit of detail that I might be missing or perhaps
I am a bit thick this evening.



I am off-line now until tomorrow but will pick this up then

Customer: replied 11 months ago.


Thank you. Yes, that is a reasonable summary.


 


The 2 semis are 53 and 55. We bought 55 in April. It used to be a council house until 2001, when the people we bought from purchased it under Right To Buy. The covenant is with the Council. Sorry, this is probably the missing detail. It shouldn't be relevant who the covenant is with, but it feels like this detail is being used somehow, by one or two people in the Council or Berneslai Homes who are "resistant to change".


 


The other semi-, 53, is still owned by Barnsley Council. Barnsley Council have spun out management of their council housing stock to an Arms Length Management Organisation (ALMO) called Berneslai Homes. (As an aside, the 81-year-old tenant of 40 years is happy with our plans, and we have kept him in the loop at all times.)


 


I hope this helps. If you have any further points of clarification, please do not hesitate to contact me.


 


Best wishes,


 


David


 


 

Expert:  Stuart J replied 11 months ago.

So it comes down to does Berneslai or the Council have to consent or do you accept it is Berneslai?

If that isn't an issue it then narrows down further to whether the covenant is more than is reasonable?

Is that it?

 

I would make the point and this might answer your question that planning permission and covenants are mutually exclusive. One isn't dependant on the other.

For PP purposes, covenants should be of no interest to the council in most curcumstances except here that they have a vague (now) vested interest

Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19937
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and 2 other UK Property Law Specialists are ready to help you

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