A clause in my deeds waives my right to object to further development in my estate

It has come to light that a large property developer included a clause in my house deeds waiving my right to object to any planning application made by the developer in my estate or on neighbouring land. My estate is part of a Strategic Development Zone. Could you please advise me on same as I wish to object to a more condensed housing development which the developer is planning right beside a park/green space. The developer is one of three parties involved in constructing the park.

The question here covers areas of both planning law and legal title rights. The question also highlights issues that are now arising more frequently as land use is intensified. Increased urbanisation and an increase in building heights and density are causing matters relating to party walls, rights to light and restrictive covenants to become much more common.

The redevelopment of brownfield sites and general densification is causing land rights and planning to become more closely scrutinised and tested. The UK has a more developed method for dealing with these matters as it has been developing brownfield sites and cities for much longer than we have here in Ireland.

Disputes

In the UK, processes for matters such as party wall disputes and rights to light have been established. It is common for UK-based chartered surveyors to specialise in areas of rights to light and party wall agreements. Please consult the Royal Institute of Chartered Surveyors website with details for surveyors who practise in the UK on these matters. It is anticipated that as brownfield development expands in Ireland the processes for resolving disputes will have to be advanced over the coming years.

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The statutory footing for restrictive covenants in Ireland is addressed in the Land and Conveyancing Reform Act 2009. This Act covers the use of negative and positive covenants which can be placed in deeds and bind successors so long as they relate to the land. However, enforcing such a clause may open some constitutional rights arguments.

In all these situations, but especially if you are considering pursuing what could well turn out to be a costly objection, it is best to seek appropriate legal advice and also to retain the service of a chartered planning and development surveyor. – Michael Cleary

Michael Cleary is a chartered planning and development surveyor and a member of the SCSI, scsi.ie