A legal battle over the operation of restrictive covenants in the South Downs National Park is taking place in London’s High Court this week.
The custodians of the Gilbert Estate, an estate near the village of East Dean, East Sussex, are seeking to block owners of land that used to be part of the estate from building a development that they say would be out of keeping with the aesthetic of the area.
They are using a restrictive covenant dating from 1960 placed on The Old Parsonage, just outside East Dean.
The covenant states that nothing can be built on the land without the consent of the Gilbert Estate, but that consent would not be “unreasonably” withheld.
In 2019, the new owners of The Old Parsonage were granted planning permission for a development on the site. In 2020, when they asked for permission from the estate, due to the restrictive covenant, it was refused.
The case has escalated into a dispute, with the estate seeking an order blocking the development, saying its refusal to grant consent was not unreasonable, and the landowners seeking the opposite.
In written arguments, the estate’s legal team, Caroline Shea QC and Gavin Benson, said: “This is an important case about matters that are unquantifiable and intangible. It raises questions of aesthetics, heritage, ‘feel’, character and amenity.”
The estate’s position is “he refused consent to the scheme because [the] proposed houses, if built, would damage the amenity value of the estate. They would do so principally because they would be out of keeping with the character and aesthetic of the estate,” they said.
“The court must ask itself a single question: is it satisfied that no reasonable person in [the estate’s] position would have taken the decision that [the estate]did?
“It is not being asked to make a judgment call as to what sorts of development the estate should or should not permit on land subject to restrictive covenants of this nature.”
Lawyers for the landowners argue that the proposed development is not out of keeping, and the estate didn’t have a good reason for refusing permission. And they take a contrary interpretation of “unreasonable”.
“No reasonable beneficiary of the covenant in the position of [the estate] would or could have reasonably withheld consent for the scheme,” their lawyer, Camilla Lamont, said, also in written arguments.
The case started on Monday. Earlier in the week, the court visited the area and today expert witnesses for both sides are being cross-examined.
Judgment will be handed down at a later date.
Mr Charles Beresford Davies-Gilbert v (1) Mr Henry James Goacher (2) Mr Steven Adrian Chester
Business & Property Courts
