Summary of Restrictive Covenants
Properties fronting onto South Drive and South Close are have a number of restrictive covenants in their title.
They originate from the early 20th Century when the property developer, The People’s Investment Company Limited (PICL), laid out of South Drive and the land surrounding it, which had previously been open fields. The purpose of the restrictive covenants was to preserve the character and amenity of the neighbourhood. The restrictive covenants on each property are identical or have substantially similar wording.
Typically, they provide that:
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no more than one dwelling house will be erected on each plot;
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no building (except one storeyed porches verandahs, bay windows and division fences) will be erected in advance of the building line thirty feet back from South Drive;
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the Purchaser will keep in repair such portion of the road as abuts onto their plot from the boundary to the centre of such road; and
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the land will not to be used for any business trade or manufacture.
The one-house-per-plot restrictive covenant has had to be enforced on several occasions in the past by the SDRA. Legal advice obtained by the SDRA confirmed that to enforce such a restrictive covenant, four requirements should normally be met:
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the existence of a common original seller (ie PICL was the common seller);
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a defined area sold off in plots subject to similar covenants (applies in South Drive)
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purchasers knew there were similar covenants on other plots (clear from title deeds)
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PICL must have intended the covenants to be enforceable as a scheme of reciprocal rights and obligations (PCIL was an early mutual society and the covenants protected it, and its investors, interests).
On the strength of the one-dwelling-per plot restrictive covenant, one of the objects of the SDRA set out in its Memorandum & Articles of Association (Art 3.1.8) is:
To review and approve (with or without conditions) or oppose the construction and erection of new houses and other buildings on the land enjoying rights of way over South Drive and/or South Close, Wokingham, Berkshire, with the specific purpose of retaining the rural neighbourhood character, charm and amenities for the residents of the houses fronting onto South Drive and South Close.
Since the SDRA was incorporated as a legal entity in January 2001 (and prior to that, the South Drive Road Fund), the SDRA and/or individual residents of South Drive have had to assert and enforce the one-dwelling-per-plot restrictive covenant several times:
1. In 1992, the then owner of 17 South Drive applied for planning permission to subdivide his plot and build a new dwelling in the garden. This was opposed by residents, but planning permission was granted. Before the house was built, a group of neighbours took legal action claiming intended breach of the one-dwelling-per-plot restrictive covenant. The case was eventually settled on the basis that a conditional waiver of the restrictive covenant would be granted. The conditions required the owner to reapply for planning consent with a design that was more in keeping with neighbouring houses in a way that the neighbours found acceptable, and required the owner to pay substantial compensation to the SDRA, as well as legal costs.
The waiver was granted to allow the dwelling, now standing as 17a South Drive, because residents felt that the plot was easily large enough to sustain an additional building, and the amended design was much more consistent with the amenity of South Drive.
2. In February 2002, a developer applied to demolish the house at 16 South Drive to erect two dwellings in its place. The SDRA made it plain to the owners at the time that legal action would be commenced if, despite planning permission being granted, they implemented the proposal. They chose not to proceed, and sold the house, which remains a single unit.
3. In late 2001, the owner of 8 South Drive passed away and the following year her executors placed the property with Knight Frank to explore the site’s development potential. The SDRA wrote to Knight Frank pointing out the one-dwelling-per-plot restrictive covenant. In August 2002, Knight Frank prepared a Planning Statement on Redevelopment Potential for 8 South Drive and a leading London firm of property solicitors wrote to the SDRA to confirm that the details of the restrictive covenants would be given to all prospective developers. In October 2002, one developer submitted two development plan scenarios, one for five dwellings and another for three, and wrote to the SDRA offering a cash payment of £20,000 and a commitment to make good the surface of South Drive and the roundabout. In November 2002, another developer offered the SDRA £50,000 to waive the restrictive covenant and allow three new dwellings could be built on the site. Similar proposals came from other developers. Eventually, no agreement could be reached by the SDRA with the developers, who all dropped out of the bidding and the executors sold the property as a single-family home to the present owners in September 2003.
4. In November 2003, most of the trees at 11 South Drive were felled, signalling an intent to develop the land. This large (2.2 acres) plot had sustained one dwelling that had been uninhabited for some time following the death of the owner in September 2002. The SDRA drew the restrictive covenant to the attention of the estate’s solicitors in November 2003. Discussions began with the estate’s beneficiaries and solicitors about development plans and continued over the next three years with developers (one of which sought permission to construct a “South Drive Village” on the plot comprising over 30 dwellings). The SDRA resisted all the developers’ proposals as impacting negatively on the character and amenity of South Drive and South Close. The leverage of the SDRA was mainly based on the restrictive covenant, though the SDRA’s ownership of the South Drive road and roundabout was also a factor in that case. 11 South Drive was ultimately sold for a single dwelling to the present owners in October 2007.
5. In April 2016, the owners of 1 South Drive notified the SDRA that they had applied for planning consent to split their property into two dwellings, one of which was intended as a granny annexe to accommodate elderly parents. Several other planning applications followed. Objections were filed by a number of residents. Before planning permission was granted, the Council entered into a Section 106 Agreement with the owners in which they undertook not to sell, dispose of or let the granny annexe separately from the main dwelling and only to use it as ancillary to the main dwelling. The Section 106 Agreement therefore had the same effect as the one-house-per-plot restrictive covenant. As the development work involved bringing part of the front elevation of the house to just within 30 feet of the road, contrary to a second restrictive covenant, the SDRA subsequently provided the owners with a written waiver of that covenant provided that all other restrictive covenants on 1 South Drive, and the Section 106 Agreement, are fully observed.
South Drive lies within the Murdoch Road Conservation Area. The restrictive covenants have enabled the SDRA and individual residents to control unwanted development and preserve the local character and amenity of the area, which had been PICL’s purpose in imposing the restrictive covenants in the first place. Restrictive covenants must be handed down from one owner to the next and are recorded at the Land Registry. They are an entirely separate matter from planning consent, and the SDRA is resolved to prevent negative precedents and protect character and amenity in the future.
