Margerison v Bates & Anor

A restrictive covenant requiring plans to be approved by a named vendor means what the conveyance says, even where extending the approval power to successors would make greater commercial sense. The court must construe the document as a whole and may consider business common sense, but must not rewrite the parties’ bargain. Where a regulatory restriction and its dispensing power are inseparably connected, the death or disappearance of the sole person authorised to consent may discharge both the restriction and the power. A covenantee assessing consent may protect the amenity and enjoyment of the benefitting land. The court may intervene only where no reasonable covenantee could have refused consent.

The claimant owned Swaynes Jumps, on which stood a bungalow constructed under a 1966 conveyance. The defendants owned adjoining Priors Knock, formerly owned by the vendor, Mrs Horn. The conveyance prohibited alterations to the bungalow without plans being approved by “the Vendor”, whose consent could not be unreasonably withheld.

The claimant sought to replace the bungalow’s flat roof with a pitched roof. The issues were whether “the Vendor” included successors in title to Priors Knock, whether the restriction survived Mrs Horn’s death, and, if the defendants could consent, whether their refusal was unreasonable. The proceedings originated as a claim by earlier owners under Law of Property Act 1925, section 84(2), before the claimant was substituted.

1. Construction. The reference to “the Vendor” in sub-clause 2(c) meant Mrs Horn alone. The conveyance repeatedly distinguished her from her successors in title and expressly used that expression where intended. The commercial advantages of allowing successors to consent could not justify rewriting the conveyance. The modern approach requires the court to ascertain the meaning conveyed by the language in its documentary and factual context, with business common sense informing the exercise, but does not permit the court to make a different contract.
2. Effect of death. The restriction in sub-clause 2(c) was discharged when Mrs Horn died. The prohibition and the dispensing power were part of a single regulatory scheme. It would be perverse to treat the death of the only person able to consent as converting a restriction controlling alterations into an absolute prohibition against every future addition, enlargement or alteration. The conclusion was reached as a matter of construction, not implication of a term.
3. The requirements in sub-clause 2(a) for approval of plans, elevations and the building site were also discharged on Mrs Horn’s death. The other restrictions in that sub-clause, including the user restriction, continued. The court expressed no concluded view on whether the restriction concerning construction of one bungalow was spent when the bungalow was built.
4. Consent, alternatively. If the defendants had possessed the approval power, the claimant would still have failed. The reasonableness of refusal had to be assessed through the defendants’ proprietary interests as covenantees, rather than by substituting the court’s broader planning or neighbourhood assessment. Their concern about the increased visibility and intrusion of the pitched roof was a reasonable concern relating to the enjoyment of Priors Knock. The court could not say that no reasonable covenantee would have refused consent.
5. The claim that consent had been unreasonably withheld was rejected.