Walsh v Lester & Anor [2016] NICA 50 (5 December 2016)

Walsh v Lester & Anor [2016] NICA 50 (5 December 2016)

Clause 6(c)(ii) of the lease permits the erection of a dwelling in the hatched area, even if it obstructs the sea view, provided it complies with the height restrictions. The sea view protected is that which remains after such construction. The appellants' refusal to consent was unreasonable as it sought to preserve rights beyond the purpose of the covenant, and no reasonable neighbour could object to the proposal.

Citation
[2016] NICA 50
Parties
Plaintiff/respondent: Philomena Walsh; Defendant/appellant: Hector Lester; Defendant/appellant: Claire Lester
Jurisdiction
Northern Ireland
Judgment Date
05 December 2016
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed; trial judge's declaration affirmed.
Legal Topics
Leasehold Covenants, Restrictive Covenants, Consent to Development, Right to a View
Property Law Contract Law Leasehold Covenants Restrictive Covenants Consent to Development Right to a View

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Philomena Walsh

Plaintiff/respondent

Hector Lester

Defendant/appellant

Claire Lester

Defendant/appellant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Can a right to a view be protected by a covenant in a lease?
  2. 2 What is the correct construction of Clause 6(c)(ii) of the lease?
  3. 3 Are the appellants unreasonably withholding consent to the proposed development?

Ratio Decidendi

Clause 6(c)(ii) of the lease permits the erection of a dwelling in the hatched area, even if it obstructs the sea view, provided it complies with the height restrictions. The sea view protected is that which remains after such construction. The appellants' refusal to consent was unreasonable as it sought to preserve rights beyond the purpose of the covenant, and no reasonable neighbour could object to the proposal.

Court Disposition

Appeal dismissed; trial judge's declaration affirmed.

Orders

  • Declaration granted that appellants are unreasonably withholding consent to the proposed development.