Tuesday, 09 April 2019

For years, argument has been raging about how best to cope with the increasing levels of traffic on the A303 in the bottleneck around Stonehenge. The solution proposed by Highways England is to construct a tunnel, taking traffic down and under the area around the Neolithic stone circle. The planning process is proceeding and, at the time of writing the matter is currently before the Planning Inspectorate.

Everyone from the highly-respected International Council on Monuments and Sites to one of the lead actors in the Spinal Tap film have voiced their opposition to the plans. However, there could now be something concrete that could offer them assistance.

The Amesbury Museum and Heritage Trust have reportedly found a restrictive covenant contained in the 1915 which reportedly restricts construction works within a set distance from the ancient stones. Highways England are confident that their proposals do not breach the terms of the covenant - whether the covenant conditions are breached or not may well be the subject of argument in the coming weeks.

This is a high-profile example which shines a spotlight on a situation which arises on a regular basis. So often when property owners want to carry out any alteration to their property, either construction or demolition, the focus is entirely on the planning process; on obtaining architect plans, on calculating how long the planning process will take, whether there may be Community Infrastructure Levy (‘CIL’) implications – or on whether planning permission is needed at all if the proposed changes are more minor in their nature.

However, planning is only half of the process. Works that have been given a seal of approval from the local planners can come to a grinding halt if there are restrictions contained in the title deeds for that property which impact on those proposed works. These restrictions come in a multitude of forms: they may prevent extensions from being built, or even garden sheds from being installed. They may prevent fences from being erected in place of garden hedges, or govern the colour a home can be painted. Such restrictions could be incredibly old – but they could still be enforceable. Falling foul of any such restrictions can result in damages being paid, or in a Court ordering physical steps to be taken; repainting a house, reinstating a hedge – and, in some cases knocking down extensions or whole buildings.

In some cases, there are steps that can be taken if an owner finds that there are covenants which restrict how their property can be used. It could be possible to seek permission from the person or organisation who holds the ability to enforce the restriction, or to amend a covenant, or even have it removed altogether from the tittle documents for a property. However, the taking of such steps can take time – and there is no guarantee that such restrictions will be removed. Further, if planning permission has already been received, the person or organisation who has the ability to enforce any restriction may smell blood – and may place a much higher price on the granting of their consent than would otherwise have been the case.

It is therefore incredibly important that, before any owner proposes on doing any works to a property, and before any contact is made with the planning department, checks are first carried out to ensure that there are no restrictions on the property title which could prevent the proposed works. The impact of the covenants attached to Stonehenge could be significant; but a covenant can have just a significant impact upon the average home owner.

If you could like assistance with any restrictive covenant issues, do not hesitate to contact the Property Litigation team.


Victoria Bonnett
Partner in Ashfords’ Property Litigation
+44 (0)1392 334103