Did You See? You May Have Missed' Mr Charles Beresford Davies-Gilbert V Mr Henry James Goacher, Mr Steven Adrian Chester [2022] EWHC 969

• Published date: 30 May 2022
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Gatehouse Chambers
• Author: Ms Lina Mattsson

Mr Charles Beresford Davies-Gilbert v Mr Henry James Goacher, Mr Steven Adrian Chester [2022] EWHC 969

Restrictive Covenants - Refusal of Consent - Burden of proof - Reasonableness

The facts

The Claimant was the owner and/or estate manager of land known as the Gilbert Estate. The Defendants were both freehold owners of land subject to restrictive covenants in favour of land owned by the Claimant. The relevant covenant prohibited any construction without a written licence, "such licence not to be unreasonably withheld."

Following planning permission, the Defendants applied for consent under the covenant. Consent was refused. The refusal letter stated:

"In short, if the development were to proceed: (a) it would have a detrimental impact on the amenity value of the Estate and (b) it could threaten the future use and commercial value of the neighbouring land... due consideration has been given to, amongst other matters, the following:

• The positive or negative impact of the proposal on my neighbouring land
• Its impact on the future anticipated use and value of that land
• Its impact on the amenity value of the Gilbert Estate in the locality as a whole; and
• The effect on boundary treatment and long-term maintenance"

The Defendants considered the refusal of consent unreasonable. They commenced work on the site. The Claimant issued proceedings, seeking a declaration that consent had not been unreasonably refused and an injunction. The Defendants Counterclaimed seeking declarations that the Claimant unreasonably withheld consent. The Defendants argued, amongst other things, that the Claimant's true reasons were not as set out in the Refusal Letter such that the refusal fell foul of both limbs of Braganza v BP Shipping Ltd [2015] 1 WLR 1661 or alternatively that if the reasons stated were the real reasons, that they were bad reasons because the Claimant had taken into account irrelevant considerations or had adopted an unreasonable process.

The Decision

HHJ Jackson gave a long and careful decision. It helpfully sets out the applicable legal principles when a covenantor has refused consent (the decision also appends a statement of the agreed legal principles approved by the judge). On the principles in dispute HHJ Jackson held that:-

1. The burden of proof lies on the covenantor to prove, on the balance of probabilities, that the covenantee's refusal of consent was unreasonable, and not on the covenantee to prove that their refusal was reasonable.
2. An outright refusal...