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Stuart J
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19563
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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This question concerns case law regarding the wording "not

Resolved Question:

This question concerns case law regarding the wording "not to be unreasonably refused".

We have a covenant with a council (full wording listed below), which says that consent must be obtained from the Head of Housing, which will not be unreasonably refused.

This covenant exists because our house was bought by the previous owners from the Council under Right to Buy in 2001. As an aside, I have also obtained written confirmation from the Housing Minister that, per Right to Buy legislation, any covenants must be reasonable.

I have been told there is case law that, if the Council's own Planning Department has granted Planning permission, then for the Head of Housing of the same council to then not give consent would automatically be judged as being unreasonably refused, and we could sue for breach of covenant.

We obviously don't want to get to this point, and want to come to an amicable agreement. However, so that I have the facts to hand, please could you tell me cases where the argument in the previous paragraph has been successful.

Thank you in advance,

David


The covenant is as follows:


(4) Not to alter demolish or make any additions whatsoever to the property or outbuildings or to erect any further outbuildings or boundary walls or fences without previously submitting plans showing such alterations additions or erections and obtaining consent of the Head of Housing for the time being of the Council in writing thereto (in addition to any planning permission or building regulation consents) such consent not to be unreasonably refused and in particular but without prejudice to the generality of the foregoing:-

(a) Not to erect any fence or wall or cultivate any hedge which exceeds the following heights

(i) along the front boundary of the property hereby conveyed one metre

(ii) along the side boundaries of the property hereby conveyed one and a half metres

(iii) along the rear boundary of the property hereby conveyed two metres

(b) To ensure that any fence or wall erected by the Purchaser is of the same type as those in the immediate vicinity
Submitted: 10 months ago.
Category: UK Property Law
Expert:  Stuart J replied 10 months ago.
thank you for the question.
What is it that you want to do?
have you been granted planning consent?
has the head of housing refused consent?
can we have the full background please?
thank you
Customer: replied 10 months ago.

Please assume that planning permission will be granted. The Planning officer is extremely enthusiatic about the proposal, which we have been discussing closely.


There is no longer a Head of Housing, so the person to make the decision will be the Council's Deputy Chief Executive for Legal and Governance.


 


Please assume that the Deputy Chief Executive for Legal and Governance is not minded to approve consent. Please also assume that, by their own admission, they have never been put in this position before, so are coming up with their answers as they go along.


 


We want to have the case law examples so that, when planning consent comes through, we can explain actual examples to the Deputy Chief Executive, and hopefully persuade them to give consent at that point.

Expert:  Stuart J replied 10 months ago.


I had another question that was uncannily similar to this but that concerned
the housing department which had devolved its function to an external
organisation and it was the external organisation that was causing the problem.




Researching extensive case law is beyond the scope of this site.
Barristers charge about £300 per hour for it was VAT as it is very specialised
and does take a considerable length of time. We do quote case door but is one
that springs readily to hand but what you were looking for here is something
which is extremely specialised with regard to the interaction between the
planning department and the Housing head.



Based upon the fact that she will have given me, I cannot see how
any refusal by the housing department could be anything other than unreasonable
if the Planning department have approved it. If the head of legal and
governance (who is very often a solicitor) decides not to approve this, he is
going to have to come up with some pretty convincing reasons as to why.



If he doesn't, then he is going to face, I am sure, an application
from you for judicial review of the decision.



If there had of legal and governance were asking me the question on
here I would tell them that based upon the fact you have given me, I cannot see
any reason to refuse this.




There is a legal argument that says that this is an impossibility
because the head of housing are no longer exists and therefore you do not have
to seek consent. The courts will not enforce an impossibility.

If it was meant to cover whoever took over as head of housing the
agreement would have said that as indeed, many agreements do when they allow
for replacement statute, replacement charities, and general replacement bodies
whereby if a body inherit something or is supposed to do something or a
particular tax is payable the agreement is drafted to allow or any replacement
tax, charity, body, or statute. I hope that makes sense.



In this case, it does not say The Head of Housing "or the Department
or the person which has taken over that role". It is not a particularly strong
argument that it is one that it is worth arguing over. After all who have the
authority to devolve the task to the Head of Legal and governance? Why didn't
they devolve the task to your next door neighbour or to you or to the office
cleaner? Under what authority did they give it to this person? However that is
another complete debate on its own.




Does that answer the question?

Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 19563
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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