MR CHARLES BERESFORD DAVIES-GILBERT v MR HENRY JAMES GOACHER & ANOR.

Where a restrictive covenant provides that consent must not be unreasonably withheld, the covenantee must identify the reasons that actually influenced the decision at the time. Both the decision-making process and the reasons reached must be reasonable. The covenantee may consider matters affecting the land benefiting from the covenant, but cannot rely on matters affecting unrelated land.

Considerations and reasons are distinct. An irrelevant consideration invalidates a reason only where it actively contributes to that reason. If a refusal rests on freestanding reasons, one bad reason does not necessarily invalidate another good reason. Planning permission is relevant background but does not determine whether consent under a covenant must be granted.

The claimant owned land benefiting from restrictive covenants affecting land owned by the defendants in East Dean, East Sussex. The defendants sought consent to construct two detached houses under a covenant prohibiting construction without a licence, such licence not to be unreasonably withheld.

The claimant refused consent, relying principally on alleged effects on the amenity value of the Gilbert Estate and possible effects on the future use and commercial value of neighbouring land. The defendants counterclaimed for declarations that consent had been unreasonably withheld. The issues included the claimant’s reasons and decision-making process, the relevance of land outside the benefited land, and whether works undertaken before proceedings were within the covenant.

1. Outcome. The claimant’s refusal of consent was reasonable. A declaration was granted that consent had not been unreasonably withheld. The defendants were not entitled to their declaratory relief, and an injunction was granted, subject to any agreed undertaking.
2. The burden lay on the defendants to establish that consent had been unreasonably withheld. The court rejected the suggestion that a refusal would generally be unreasonable where the concern could have been neutralised by a condition. That proposition conflicted with Iqbal v Thakrar and was not supported by Sargeant v Macepark (Whittlebury) Limited.
3. For aesthetic objections, it was insufficient merely to rely on personal taste. A concern that a proposal was out of keeping or adversely affected the amenity of benefited land could be relevant, subject to an objective assessment.
4. The court adopted the principles that the relevant reasons are those which influenced the covenantee’s mind when the decision was made; both the process and the outcome must be reasonable; irrelevant considerations must be excluded; and collateral or uncovenanted advantages cannot be pursued. Considerations which were merely present in the decision-maker’s mind, but which did not influence the reason, did not invalidate the decision.
5. The first reason was unreasonable because it related to the wider Gilbert Estate and included the impact on the Dipperays, which was not benefited land. The second reason, concerning neighbouring land, was freestanding and supported by legitimate concerns about overlooking and boundary screening. It remained reasonable notwithstanding the defect in the first reason.
6. The application was a single application for consent to one joint scheme, not two separate applications for the individual houses.
7. Groundworks meant works within the ground and covered by the finished ground level. The erection of retaining walls above ground level breached the covenant. Subsequent works to those walls also breached an undertaking given through the defendants’ solicitors.