[2025] UKUT 135 (LC)

Mr Warfield died in 1992. The applicants say that the approval covenant is not an absolute prohibition on a par with those in clauses 3(1), (2) and (3); it did not prevent the purchaser from building a house on the plot sold, but it required the submission of plans to Mr Warfield for approval before the purchaser started building on the plot. The approval covenant related only to the building of a house on the site; there was no covenant prohibiting or giving the vendor control over alterations to that building. The point was simply to ensure that the house to be built on the plot was approved by Mr Warfield himself, and there was no provision for him or his successors to be able to control or prevent subsequent development. The applicants rely on Crest Nicholson (South) Limited v McAllister [2002] EWHC 2443 (appealed at [2004] EWCA Civ 410 but not on this point), on Churchill v Temple [2010] EWHC 3369 (Ch), Cook v Broad [2014] UKUT 528 (LC) and on Savage v 60 Kent Road (paragraph 8 above).

The applicants have not said that they have a particular development in mind but seek to have the approval covenant discharged, on the ground that it is obsolete, or modified so as to impose requirements about the windows but deleting the requirement for approval.