[2025] UKUT 135 (LC)

It is important to start from the plain words of the approval covenant and to give them their natural meaning. The person whose approval is required is “the Vendor” and there is no reference to successors in title. Should the covenant nevertheless be construed so as to confer that power of approval also on those successors in circumstances where the Vendor has parted with possession of the property or has died? In the authorities cited by the applicants the courts and the Tribunal have usually regarded wording of this kind, whether referring to “the Vendor” only or also to the Vendor’s surveyor”, as creating a personal obligation. A different conclusion was reached in Mahon v Sims, where the transferor had parted with the property. I bear in mind that the 1962 conveyance must be read in its own context and on its own facts.

I am not persuaded that the size or layout of the plot should lead me to conclude that the term “the Vendor” here includes successors in title. Three noticeable omissions from the conveyance do persuade me that the word is not to be expanded in this way, and that the conclusion I should reach is different from that reached in Mahon v Sims. One is the failure to make provision for the approval of extensions or alterations, any of which could (subject to planning permission) radically change the nature of the property and cause loss of privacy, loss of amenity or diminution in value. The idea was to give the vendor control over the first building on the plot, which was intended to be built soon after the date of the conveyance and would therefore affect Mr Warfield personally, not to extend control into the distant future. Another is the failure to make provision for the Vendor’s death. I agree that the approval covenant would be rendered useless if Mr Warfield died before the new building took place, but that again points, in my judgment, to the same conclusion; Mr Warfield was making provision for an event that was going to affect him personally and was anticipated to be about to happen soon, namely the building of the first property. He made provision in sub-clauses (1) to (3) for restrictions that were going to last for the benefit of his successors in the form of absolute prohibitions; he made provision in sub-clauses (4) and (5) for positive obligations which would endure only between himself and the purchaser, and finally in sub-clause (6) he created another personal obligation which would control just one event, the building of the new house on the plot.

Finally, the omission in the approval covenant to refer to the Vendor’s successors in title is particularly telling because in this conveyance successors were expressly mentioned where they were intended to be included; see paragraph 5 above. Had the power of approval been intended to be transmitted to successors in title the conveyance would have said so.

I agree with the parties that the second part of the covenant, the words not emboldened in paragraph 14 above, is part and parcel of the first part; it defines particular circumstances in which consent will not be given. It is important that the approval of the Vendor was to be “reasonable” – he had no absolute right to withhold approval. He therefore protected himself by setting out his “bottom line” in the covenant itself. The second part of sub-clause (6) cannot be read as a stand-alone absolute covenant; if it had been it would have been expressed as a separate sub-clause (and would probably have followed the other restrictive covenants in sub-clauses (1) to (3)).