Award-winning architect Sophie Hicks has lost a ruling in a long-running dispute with her neighbours over an “uncompromisingly contemporary” house she wants to build in Holland Park.
Hicks owns the long lease on a plot of land at 89 Holland Park in the Royal Borough of Kensington and Chelsea.
She wants to build a mostly-underground home on the site, with a glass cube as an entrance that will glow at night.
89 Holland Park itself is a large detached Victorian villa divided into five flats which are also leaseholds. The freehold is owned by a management company, which is in turn owned by the long leaseholders of the flats. There is a restrictive covenant on the land that say any development must be approved by the freeholder.
That means Hicks needs her neighbours’ approval, and they don’t like the project.
However, because of previous court battles with them, it has been established that they cannot withhold consent unreasonably, which has led to this dispute.
In a ruling last year, Judge Pelling QC found that it was not reasonable for the neighbours to withhold their consent on “aesthetic” grounds.
But in a ruling today, a three-judge panel at the Court of Appeal reversed that ruling.
“The covenant in our case is a covenant between neighbours,” Lewison LJ said in today’s ruling. “And in my judgment a neighbour has a legitimate interest in the appearance of what is built next door to him.”
And in addition, the fact that the freeholder is a company makes no difference, he said.
“It seems counter-intuitive to deny that, in principle, a corporation can make aesthetic judgments, given that many major corporations spend huge sums of money on corporate and product design. The purpose of such expenditure may be to attract increased custom, but the choices nevertheless are aesthetic choices.”
However, the dispute still has a long way to run. As the High Court judge ruled that it was not open for the freeholders to object on aesthetic grounds, he did not explore whether their actual objections were reasonable or not.
The case now has to go back to the same judge, and he has to rule on the reasonableness of the neighbours’ objections. This may not be an easy task.
In his ruling, Lewison LJ said he was “inclined to agree” that “Merely to say that the proposed building is not to the taste of the company or the leaseholders would be entirely subjective; and would not be enough. On the other hand, to limit aesthetic objections to a case in which there is an effect on capital or rental value is too narrow.”
And he said that Hick’s lawyer made a “powerful point” in the trial that it isn’t possible to objectively evaluate aesthetic objections. Which is a point that is highly likely to be developed at the next hearing.
89 Holland Park Management Ltd v Sophie Louise Hicks
Court of Appeal (Lewison LJ, Flaux LK, Holroyde LJ) 17 June 2020
John McGhee QC and Tim Calland (instructed by Gowling WLG) for the appellant
Philip Rainey QC and Mark Sefton QC (instructed by Mishcon de Reya LLP) for the respondent
