Restrictive Covenants and ‘not to unreasonably withhold consent’.
Subterranean or so-called super basements are ever popular in London. Restrictive covenants continue to provide significant concern, difficulty and delay for developers. In the recent case of Hicks -v- 89 Holland Park (Management) Ltd  EWHC 1301 (Ch) plscs 132 the court was asked to consider the enforceability and extent of two restrictive covenants preventing specific activities in respect of development. 89 Holland Park concerned proposals for development for a long thin strip of land adjacent to a large Victorian Villa. In 1965 the then owner of both plots sold the undeveloped site, subject to planning permission, for the construction of a single-storey dwelling within two years. The Transfer also contained a number of restrictive covenants such as:
This decision is likely to be welcomed by developers, as it is often the case that requirements to obtain consent in freehold covenants are silent as to whether consent can be unreasonably withheld. This case infers that, in certain circumstances, consent cannot be unreasonably withheld may be useful to future developers.