A common restrictive covenant is that building work that A wants to do on their land burdened by the covenant cannot go ahead until the owner of the benefitting land (B) has approved the building plans. Often such covenants also say that B’s approval of those plans cannot be unreasonably withheld.
Withholding approval on grounds that your neighbour’s proposed building work will be damaging to your property on structural or engineering grounds, or even that it will overlook your property to such an extent that you will lose all privacy or light are relatively common. There is plenty of case law to consider in order to get a clearer idea of how a Court/Tribunal would approach those issues.
What is more difficult is knowing how far your personal view of the aesthetics or look of the proposed building gives you a right to refuse to approve the plans. For that reason, the case of 89 Holland Park (Management) Limited -v- Hicks [2020] EWCA Civ 758 has provided some useful clarification.
Ms Hicks was the owner of land adjoining a listed building consisting of 5 flats in Holland Park. She wanted to build on that land what can best be described as an ultra-modern and therefore controversial home. Looking very much like a glass cube it was to incorporate two subterranean levels which would be the main living area.
The Management Company and the owners of the five flats had the benefit of a restrictive covenant that required the building plans and specifications to be approved before Ms Hicks could commence work. The relationship between the flats and Ms Hicks was not good as there had been previous litigation to determine that the covenant did not give an absolute right to refuse approval, but instead required that approval could not be unreasonably withheld.
The Management Company confirmed it would not approve the plans because the flat owners did not want to live next door to what it described as the unique, contemporary or unconventional “nor next to gently glowing boxes”.
In the High Court the Judge decided that the Management Company was not entitled to take the views of the flat owners into account and it could not make aesthetic objections as the design albeit “uncompromisingly contemporary” had no impact on the Management Company’s reversionary interest in the flats. It therefore did not go on to decide if those objections amounted to a reasonable decision to refuse approval.
The Judge did acknowledge that the concerns about the possible structural impact on the flats were legitimate and ordered that those issues had to be resolved before the building work could start.
The Management Company appealed, and the Court of Appeal took a different view. It held that the covenant also benefitted the flat owners and if the Management Company was not able to take their views into account it would render the covenant “almost worthless”. Further the purpose of such a covenant is enable the party to actually see what it is the landowner wants to build; so, objections on aesthetic grounds should be taken into account.
The Court of Appeal gave guidance on the issue and confirmed that it was not enough for the Management Company or the flat owners to just say they did not like the proposed building, but that if the objections were that the building would be “out of keeping” with its surroundings or it would adversely affect the amenity of their land their objections may well be sufficient.
The Court of Appeal remitted the case back to the High Court to assess whether the refusal to approve the plans was unreasonable or not and the High Court will have to use the guidelines set out by the Court of Appeal in making its decision.
It is clear that just because you regard the proposed building plans of your neighbour to be in the worst possible taste, that by itself will not entitle you to refuse to approve the plans where such refusal has to be reasonable. However, the case does firmly confirm that aesthetic concerns have their place in the consideration. The weight given to those concerns will be determined on a case by case basis dependant on the facts.
If you are concerned about enforcing a restrictive covenant that benefits your land or whether you can get a covenant burdening your land removed or modified please contact Frankie Tierney in our Dispute Resolution team on drteam@herrington-carmichael.com
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
