Court Of Appeal Decides That Holland Park Leaseholders Can Rely On Aesthetic Grounds In Refusing Consent To Development Next Door

• Published date: 24 June 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning, Real Estate, Landlord & Tenant - Leases
• Law Firm: Gowling WLG
• Author: Mr Clive Chalkley and Charlotte Weeks

The Court of Appeal has handed down its judgment in Hicks v 89 Holland Park (Management) Limited [2020] EWCA Civ 758, in which the long leaseholders of flats in 89 Holland Park successfully appealed against the decision that they had unreasonably withheld consent to development proposals of the neighbouring property, pursuant to a restrictive covenant.

This decision has some important consequences for the law where consent pursuant to a restrictive covenant can validly be withheld, when it is a requirement that consent can only be withheld reasonably.

Firstly, the facts:

89 Holland Park adjoins a piece of land which had been bought by architect Sophie Hicks at auction. She intended to build a modern property on this land with a glass cube at ground level and a large subterranean level extending across most of the site. The plans have been described as a "gently glowing glass box" but nonetheless were approved by the local planning inspector in 2015.

89 Holland Park is now split into several flats which are owned as long leasehold interests. The long leaseholders each own a share of a management company, 89 Holland Park (Management) Limited, which owns the freehold. Before the property had been sold off as separate leaseholds, in the 1960s the freehold owner (Brigadier Radford) had entered into a restrictive covenant with the then owner of the neighbouring land.

The covenant provided firstly that no application could be made for planning permission until he had approved the designs, and secondly that no works of construction could commence until the detailed specifications and drawings had been approved.

Sophie Hicks and the long lessees of 89 Holland Park have been engaged in litigation for some time to determine how this covenant now applies. It was held in a previous High Court decision (89 Holland Park (Management) Limited (and others) v Sophie Hicks [2013] EWHC 391 (Ch)) that although the covenant was expressed to benefit the freehold owner of 89 Holland Park, those deriving title under that interest were also entitled to the benefit of covenant - which included the long lessees.

In 2016, Ms Hicks applied to 89 Holland Park (Management) Limited for consent to her proposed development and in January of 2017, the plans were rejected in a 10-page letter detailing numerous reasons for the rejection. Crucially, those included aesthetic reasons and the loss of amenity of the trees, which the development would impact upon. The long lessees relied on the...