‘Not to be unreasonably withheld’

The old chestnut of ‘such consent not to be unreasonably withheld’ has raised its head in the reported case of Davies-Gilbert v Coacher & Ors [2022] EWHC 969 (Ch).

The owner of the Gilbert Estate within the South Downs National Park (‘the Estate’) had the benefit of a restrictive covenant over land, being part of the Estate, upon which the defendants wished to build two detached residential dwellings. The covenant prohibited construction of an “erection building or wall whatsoever without such previous written licence as aforesaid such licence not to be unreaonably withheld.” The claimant refused consent to the proposed development on the basis that “In short, if the development were to proceed: (a) it would have a detrimentl impact on the amenity value of the Estate and (b) it could threaten the future use and commercial value of the neighbouring land”.

The judge found that the land with the benefit of the restrictive covenant did not equate to the whole of the Estate. Therefore, she found that the claimant had taken into account irrelevant factors affecting the Estate as opposed to just the benefiting land when it stated that the proposed development would “have a detrimental impact on the amenity value of the Estate”. She therefore rejected this reason as being ‘unreasonable’. That left the second reason which, the judge held, she could consider as a freestanding reason even though the first reason had been rejected.

The judge considered the facts relating to the second reason for refusal in detail including the evidence of both witnesses of fact and experts. She concluded that in giving his reason, the claimant had considered only factors relating to the ‘neighbouring land’ having the benefit of the covenant. She concluded that “the Claimant followed a reasonable decision-making process in relation to the second issue and reached a reasonable outcome when he refused permission on that basis.”

The case had taken up six days of the court’s time and was, in consequence, an expensive exercise. Falcon Chambers warn that “Practitioners will need to be careful going forwards, from the moment of instruction by clients, to scrutinise not only a covenantee’s headline ‘reasons’ for refusing consent but also, so far as may be possible, any other underlying ‘considerations’ which may have influenced the decision.”

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