Wainhomes’ gagging clause unveiled at public meeting

Gagging order picWe can consider ourselves fortunate that living in a western democracy we have many freedoms. Probably the one we guard most jealously is that of Freedom of Speech. It is enshrined in the very fabric of our society and is a fundamental principle of democracy.

But if you live in Feniton, you may be surprised at attempts to curtail that freedom.

At last night’s meeting in Feniton Primary School (https://susiebond.wordpress.com/2014/11/25/extraordinary-scenes-at-feniton-parish-council-meeting-last-night/), reference was made by a Feniton resident to the ‘gagging clause’.

The clause referred to is one which is found under Restrictive Covenants in the contract between developer Wainhomes and the new owners of their Winchester Park development, and the clause reads as follows:

Not to object to any future planning applications on adjacent land owned now or in the future owned by the Transferor.

Now … just pause and think about that for a second.

It is completely and utterly outrageous.

And what, precisely, is Wainhomes hoping to achieve by including that clause in their contract? Is this clause only placed on homes on this particular development, or is it a standard clause used across all Wainhomes’ developments?

Apparently, however, the practice is not unusual (see http://www.getreading.co.uk/news/local-news/relief-home-buyers-gagging-clause-4248977), but to the great relief of residents in this particular case, the clause was found to be not legally binding.

So if you live in Winchester Park in Feniton, you are perfectly free to comment on the latest application for 31 houses whether you wish to support the proposal or object to it.

That is your legal right.

Update

During an interview with Wainhomes, their spokesman confirmed that:

“There is no “Gagging Clause” – all our properties are sold with a standard covenant not to object to further developments – this is standard across the development industry and is as far as I am aware used by all developers .

“However, I have never seen this covenant enforced and if someone wishes to object they are free to do so.”

Full story here: http://www.exeterexpressandecho.co.uk/Feniton-developer-prevents-home-buyers-objecting/story-24680275-detail/story.html

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3 Responses to Wainhomes’ gagging clause unveiled at public meeting

  1. Val Jones says:

    Well done Susie for airing this. Looks like Wainhomes have scored an own goal!

  2. Paul says:

    DISCLAIMER: I am not a lawyer, so this comment is only a lay-person’s possibly incorrect interpretation of the law. DO NOT RELY ON THIS COMMENT AS THE BASIS FOR DECIDING WHETHER TO OBJECT OR NOT – GET REAL LEGAL ADVICE IF YOU NEED TO.

    As usual the devil’s in the detail of the precise wording of the “gagging” clause. And we need to be clear about criminal vs. civil law.

    The purchase contract for a house is in civil law. So if you were to contravene a restrictive covenant you would presumably be in breach of contract, and the housebuilder could then potentially sue you for damages i.e. in this case lost profit from the sale of houses. Since this is civil law, it does not make it illegal to object or take away your rights under planning law to make an objection – but potentially it could have consequences.

    WainHomes might or might not decide to pursue such a breach through the courts. The difficulty of suing you is that they might have to show that they suffered damages purely as a result of your planning objection i.e. that it was your planning objection that tipped the balance towards a rejection of their planning application, and they might also need to show that your objection was vexatious rather than real. Also suing a purchaser would likely result in very bad publicity which they might not want – but then again WainHomes haven’t appeared to be that worried about bad publicity so far.

    Summary: If you have signed a gagging clause, but want to make a planning objection, then get proper legal advice about the risk of possible consequences.

    • susiebond says:

      The story was taken up by the Express & Echo and Wainhomes’ comment to them was “There is no “Gagging Clause” – all our properties are sold with a standard covenant not to object to further developments – this is standard across the development industry and is as far as I am aware used by all developers. However, I have never seen this covenant enforced and if someone wishes to object they are free to do so.”

      Which begs the question … why place the restrictive covenant on purchasers in the first place?

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