Summary

Where a covenant in a conveyance prohibited certain building works without the covenantee's consent "to the size nature materials and colour thereof" a duly requested consent under the covenant was not to be unreasonably withheld.

Facts

The claimant property owners (R) took proceedings against the defendant trustees (B) and the master directed the trial of a preliminary issue as to the correct interpretation of a covenant in a conveyance. B were the successors in title to the vendors of R's property. The conveyance of the property to R's predecessors in title contained a covenant prohibiting certain building works without the covenantee's consent "to the size nature materials and colour thereof". R wished to carry out works which fell within the scope of the covenant and had submitted detailed plans to B. B had not given consent. B submitted that they had complete freedom as to the giving or withholding of consent and could refuse consent on any ground they chose without any possibility of review or challenge. R submitted that only reasonable withholding of consent was permissible.

Held

The covenant in the conveyance was within the class of regulatory covenants requiring the submission of plans for approval. Furthermore the covenantee's consent was directed not in general to the proposed works but in particular to their size, nature, materials and colour. The limiting of the required consent in that way by the express language of the covenant was an indication that the parties did not expect the covenantee's consent to be withheld by reference to considerations not directed to the merits of the particular proposal. The parties to the conveyance had to be taken to have intended that there was to be a limit to the covenantee's withholding of a requested consent. Such a limit was necessary to give effect to the reasonable expectations of the parties and necessary to give the contract business efficacy. A duly requested consent under the covenant was not to be unreasonably withheld by B. Wrotham Park Estate Co v Parkside Homes Ltd (1974) 1 WLR 798 and Cryer v Scott Brothers (Sunbury) Ltd (1988) 55 P&CR 183 applied.