Key points
- The High Court has decided that it was reasonable for a covenantee to refuse to approve a subterranean development featuring a glass entrance cube
- But the refusal would have been unreasonable if it had had the effect of sterilising land that had been sold for development
The architect and inventor Ernö Rubik created his famous cube without being certain there was a solution for it. But solve it he did and his educational toy has since inspired architectural projects around the world. Nearly 50 years later, the lengthy legal battle between architect Sophie Hicks and 89 Holland Park (Management) Ltd over the construction of largely subterranean home on land adjoining a listed Victorian villa in Kensington has involved twists and turns familiar to anyone tackling a Rubik’s cube.
Glass cube
The litigation began nearly a decade ago when the owners and occupiers of the villa, which had been subdivided into five flats, obtained a declaration that they were entitled to the benefit of restrictive covenants preventing Hicks, as the owner of the land that was to be developed, from commencing development without approved plans, drawings and specifications. Importantly, however, the court ruled that the management company, 89HP, which represented the owners and occupiers of the flats, was not entitled to act unreasonably.
Hicks obtained planning permission for an “uncompromisingly modern” development featuring a “gently glowing” glass cube at street level, providing access to living accommodation below. But 89HP objected to her proposals, citing “architectural design, aesthetics and heritage” in particular, sparking further litigation to establish whether aesthetic objections to a design were capable of constituting reasonable grounds for refusing permission for a development.
The Court of Appeal in Hicks v 89 Holland Park (Management) Ltd [2020] EWCA Civ 758; [2020] EGLR 28 confirmed one of the purposes of covenants relating to the approval of plans and drawings is to enable the decision-maker to see what a building will look like, and that aesthetic objections may be valid, even where a covenantee’s consent cannot be unreasonably withheld. So the parties went back to court ([2021] EWHC 930 (Comm); [2021] PLSCS 83) to ascertain whether 89HP’s refusal to approve the plans was reasonable or not.
Reasonableness
Decision-makers need usually only consider their own interests when considering applications for consent. But it is clear, thanks to International Drilling Fluids Ltd v Investments (Uxbridge) Ltd [1985] EWCA Civ 11; [1986] 1 EGLR 39, that it is unreasonable to withhold consent if the circumstances are such that a refusal will cause disproportionate harm to the applicant.
The covenants were imposed in 1965, when the site was sold for development pursuant to an existing planning permission. In other words, the covenants were imposed on the basis that the land would be built on, and the covenantee had subsequently approved a different layout drawing. But the site had never been developed.
The land had a narrow frontage, which made development particularly difficult. It was also neglected and the judge described it as an “eyesore”. But the planning authority had refused permission for a conventional house because construction above ground would fill an important townscape gap. However, it had consented to the development proposed and, because subterranean development was the only practicable option, Hicks argued that 89HP had unreasonably rejected plans that were acceptable to the planning authority, thereby sterilising her land.
A promising argument? The judge certainly made it clear that being willing to consent only to a development for which there was no realistic prospect of obtaining planning permission would be unreasonable. However, there were three alternative designs for an entrance pavilion – for which planning permission had not been sought but might be available. Consequently, 89HP’s objections to the glass cube were defensible because there was a reasonable prospect of obtaining planning consent for an alternative design that would eliminate 89HP’s concerns about a translucent structure that would emit light at night.
Excavations
89HP also argued that a reasonable person in its position would have been entitled to refuse permission for other reasons. The development extended beyond 89HP’s rear building line, encompassing virtually the whole site, leaving it without any garden. And it involved excavations that were greater than building a conventional house – which would be far too disruptive.
The judge observed that the layout drawing approved in 1968 did not extend beyond the villa’s rear building line and accepted that HP89’s objection to construction beyond that line was reasonable. The position would have been different had it been possible to show that the proposed development would be practicable only if it were to be as extensive as was planned. But that was not the case here because Hicks had accepted that a less extensive development was possible.
However, the judge rejected the notion that a reasonable decision-maker in 89HP’s position would have concluded that the excavations would render the villa uninhabitable during the construction work. Furthermore, a refusal to countenance the transitory inconvenience caused by subterranean development would be disproportionate and unreasonable because it would render the site undevelopable.
But 89HP had had other grounds for its decision, which were reasonable. So while the judge regretted that it had chosen to stand on legal formality, instead of engaging in a sensible and proactive discussion, 89HP’s refusal to approve the plans had been reasonable.
Looking forwards
Will this decision put paid to the dispute between the neighbours? Perhaps. But it takes time and patience and it may be necessary to retrace some of your steps when attempting to solve a Rubik’s cube. Hicks has lost this battle but the court’s unwillingness to countenance decisions that would sterilise the site suggests there may be further chapters in this story.
Allyson Colby is a property law consultant
