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The High Court has today handed down judgment in the restrictive covenants case of Davies-Gilbert v Goacher and Chester [2022] EWHC 969 (Ch) following a six-day trial heard earlier this year.
The main issue in the case was whether the claimant, as the owner of the Gilbert Estate in East Dean in the South Downs National Park, had unreasonably withheld his consent under a qualified restrictive covenant to a proposed scheme of development on a plot of land in the South Downs National Park. The claimant had refused his consent for two reasons, firstly on the ground that the development would have a detrimental impact on the amenity value of the Estate and secondly on the basis that it could threaten the future use and commercial value of neighbouring land.
Her Honour Judge Claire Jackson (sitting as a Deputy High Court judge) held that the first reason was unreasonable because in reaching that decision the claimant had considered the impact of the proposed scheme on the wider Estate, not just that part of it that enjoyed the benefit of the covenant. As such the claimant had taken into account irrelevant considerations and his refusal was the result of an unreasonable process. The judge held that the second reason was a decision that the claimant was entitled to reach on the facts before him and which solely related to neighbouring land that did benefit from the covenant. The second good reason was freestanding and was not invalidated by the first bad reason. Therefore, the claimant had not unreasonably withheld his consent.
The case will be of particular interest to those who advise in connection with applications for consent under covenants in both freehold and leasehold contexts and highlights the requirement for a reasonable process to be followed, applying Braganza v BP Shipping Ltd [2015] 1 WLR 1661.
Camilla Lamont, instructed by Fladgate LLP, appeared for the Defendants.
