Restrictive Covenant prohibits road

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FieldMouse
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Restrictive Covenant prohibits road

Post by FieldMouse » Mon Dec 18, 2017 4:03 pm

If a restrictive covenant prohibits a "road" being build would it be a breach if I extended the existing drive to any part of the backland garden which may or may not have enforceable restrictive covenants preventing the building of a house or houses but which does not prevent sheds, garages etc being built on it?

I understand the legal definition of a road is that it allows public access whereas the extended "private" drive would not allow public access. Twitchy neighbours have previously issued writ for breach when a developer put in a planning application and had an option to buy the land in question - court held there was no breach and awarded costs against neighbours. Even so very worried that extending the drive might trigger a disproportionate response again from the neighbours. And yes, I might apply to have the can't build house(s) restriction lifted at some point in the future as it is preventing reasonable use, in the meantime I would like access to my land behind my old house, which house has been sold to someone else who will not object to my plans as they are in a similar position to me.

If you have experience or expertise in this area I would be interested in hearing your thoughts. Any relevant case law?

FieldMouse
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Re: Restrictive Covenant prohibits road

Post by FieldMouse » Tue Dec 19, 2017 7:13 am

PS. In the matter of the alleged Breach: as soon as the Writ of Summons was issued the developer withdrew his planning application and paid the Applicants some money to be removed from the proceedings and was never seen nor heard from again. Neither side had time to investigate whether the covenants were enforceable so the court held that the covenants were enforceable. That being the case applying to have them lifted due to unreasonableness and paying a reasonable fee to the beneficiaries seems like the path of least resistance.

pilman
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Re: Restrictive Covenant prohibits road

Post by pilman » Tue Dec 19, 2017 2:23 pm

When seeking advice on matters regarding restrictive covenants, it would normally require some information about what the covenant stated and what land was identified as the benefiting land.

You now seem to have answered your own initial question based on actual knowledge.

That is probably why no one else could offer any advice other than to tell you to explain what it is you want when posting on an open forum.

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