Restrictive Covenant Derails Village Housing Development

Freehold owners of land generally believe that, subject to planning permission, they can develop their properties in whatever way they wish. However, as a High Court ruling strikingly showed, that is by no means always the case.

Two men wished to build homes for themselves on a parcel of land they owned in the heart of a pretty village. Planning consent for the proposed development had been obtained. The land, however, was subject to a restrictive covenant which dated back to 1960. It required them to obtain a neighbouring landowner’s written consent before they could erect any building or wall on their property. The covenant stated that such consent was not to be unreasonably withheld.

The neighbouring landowner declined consent for the development and launched proceedings seeking a declaration that his refusal was reasonable. Development of the land having already commenced, he sought an injunction restraining the men from carrying out any further works without his permission. For their part, the men argued that his withholding of consent was unreasonable.

Ruling on the dispute, the Court found that some of the neighbouring landowner’s justifications for declining to grant consent were irrelevant, unreasonable or both. However, he had legitimate concerns in respect of potential overlooking and the screening of an access track and his refusal was therefore reasonable. On that basis, he was entitled to an injunction and the declaration sought.