“Finally, on this aspect, no submissions were addressed to me drawing any distinction between a qualification that the consent of the Director of Planning and Development should not be unreasonably withheld on the other hand. No distinction was made between those two qualifications by Hart J in Mahon Sims[2005] 3 EGLR 67 in the context of a restrictive covenant by transferees not to built on the transferred land save in accordance with plans previously approved in writing by the transferors. As Hart J observed, in Cryer the Court of Appeal proceeded on the basis that a proviso not to use a power unreasonably was necessary to exclude an arbitrary or capricious exercise of power, and so seems to have regarded both qualifications as, in practice, amounting to the same thing. In Mahon, Hart J concluded that, in the context he was considering, he did not think it made any practical difference whether the implied proviso was expressed as “not to be arbitrarily or capriciously withheld” or as “not to be unreasonable withheld.”
“A theme that runs through our law of contract is that the reasonable expectations of honest men must be protected. It is not a rule or a principle of law. It is the objective which has been and still is the principal moulding force of our law of contract. It affords no licence to a Judge to depart from binding precedent. On the other hand, if the prima facie solution to a problem runs counter to the reasonable expectations of honest men, the criterion sometimes requires a rigorous re-examination of the problem to ascertain whether the law does indeed compel demonstrable unfairness.”