Residential planning consent: grounds for refusal

Planning permission is often required and may be refused on various grounds. Some common grounds are;

• the build overshadows a neighbour, causing loss of light;
• the build overlooks other homes, causing loss of privacy;
• the appearance of the build is out of character with the existing property;
• overdevelopment;
• impact upon trees; or
• the property is a listed building.

The case of 89 Holland Park Management Ltd v Hicks [2020] EWCA Civ 758 focuses on a restrictive covenant (explained below) which prohibits the making of any application for planning permission until the plans, drawings or specifications have been approved by the freeholder, 89 Holland Park (Management) Ltd (the ‘Company’).

The respondent(Hicks) sought approval for the construction of a glass single storey entrance pavilion and was refused by the Company on the grounds of its (1) “architectural design, aesthetics and heritage”, (2) “trees”, (3) “loss of amenity during the works” and (4) “construction issues”.

The focus of the case was whether or not the Company could refuse consent based on aesthetic reasons. The court decided that the Company could refuse consent on aesthetic grounds as it would be extraordinary if it could not take into account what a proposed building would look like.

The Court of Appeal held that a refusal on aesthetic grounds was a potentially valid reason for refusing consent but that the reasonableness of the decision would need to be considered on a case-by-case basis.

With this ruling the courts have reaffirmed the strength of restrictive covenants in deeds.

What is a restrictive covenant?

Restrictive covenants are binding obligations that are written into a property’s deeds that determine what a homeowner can or cannot do with their property. Restrictive covenants can cover a wide range of issues, but the most common examples tend to include preventing the covenantor (the owner of the property) from making alterations to a property. For example, building an extension, converting a house into flats or preventing buildings or other substantial structures from being erected on a piece of land.

These covenants often make provision for the covenantee (the person to whom a promise in the form of a covenant is made), who has the benefit of the covenant, to consent to the proposed work and often such consent cannot be unreasonably withheld. In the case of 89 Holland Park, the reasonableness of withholding consent was extended to aesthetics.

The case has shown the value of having a professional convey your property with practical awareness, so as to provide a bespoke service to your needs. The respondent in this matter was an architect with a passion to live at a property of her own specifications. However, she was unable to do so as she bought a property with a host of restrictive covenants, which may or may not have been known to her at the time of purchase.

Contact us

This article is for guidance purposes only and should not be regarded as legal advice. If you have any queries concerning restrictive covenants or are involved in a planning dispute, please contact our team.

Our team of solicitors in Brighton, Eastbourne, London, Hastings and Uckfield can help you understand your options.