Obtaining consent of third parties to your development

Recently, a national housebuilder sought consent from a third party to its development plans. This raised issues covered by two not-so-well-known but very useful court decisions (Rickman v Brudenell Bruce and Cryer v Scott Brothers [Sunbury] Ltd).

The housebuilder has a development site that drains surface water through a drain under an adjacent railway line. The site is burdened by a covenant in favour of Network Rail that requires it to obtain the approval of Network Rail to any development plans for the site — in essence to ensure that such plans won’t adversely increase the flow of water through the drain and have an impact on the railway.

The covenant is drafted such that there is no statement requiring Network Rail to act in a reasonable and timely manner in consenting to the housebuilder’s plans…

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