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Consent to development

Who do you ask for consent? The original transferor of the land who took the benefit of the covenant, or his successor in title who now has the benefit of the covenant? Can the consent be unreasonably withheld? Finally, what is the situation where there is a requirement in the covenant to submit the plans to an entity that has ceased to existent. These are the issues considered on this page.


Who do you ask? Can consent be unreasonably withheld?

Mahon v Sims
[2005] 39 EG 138
Hart J in the QBD on appeal from the county court.

Facts

The person with the land which was subject to the restrictive covenant wanted to build a double garage and store. There were two preliminary issues in the case:
    (1) Did the phrase "the Transferor" in the relevant restrictive covenant apply to the original grantor of the covenant or to the successor in title? It was necessary to know for the purposes of determining from whom consent should be obtained for development.

    (2) Was it possible to imply a term that consent should not be unreasonably withheld?
The relevant part of the covenant said:
    "The Transferees hereby jointly and severally covenant with the Transferors not to use the property hereby transferred for any purpose except that of a private garden and not to erect thereon any building other than a greenhouse garden shed or domestic garage in accordance with plans which have been approved previously by the Transferors in writing."
The successors in title to the original transferees wanted to construct a double garage and store on part of the land transferred. The original transferor had no objection but their successors did.

Held

(1) By virtue of s78 of the Law of Property Act 1925 the phrase "Transferor" included successors in title. It was also clear from the express words of the covenant that the benefit of the covenant ran with the retained land. The judgment also seems to make it clear that it is only the successors from whom consent needed to be obtained. There was no apparent reason why the original grantors would want to maintain control over the land after they themselves had sold the land. It was unlikely that the parties intended that a third party, who had retained no interest in the land benefited could control development of a site so ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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