[2025] UKUT 135 (LC)

In response, it is argued for the objector that the purpose of the approval covenant was to enable the owner for the time being of number 23 to object to the building of any replacement house at the property; she is concerned that a future building at 23a could be designed or sited in such a way as to deprive her property of practical benefits or could diminish its value, and so objects to the discharge or modification of the covenant.

In his written submissions in relation to the preliminary issue Mr Francis reminded the Tribunal of the principles of construction set out by the Supreme Court in Arnold v Britton [2015] UKSC 36. He asked the Tribunal to be mindful of the need to take care with the authorities and not to assume that what a term such as “the Vendor” has been held to mean in the context of one case will be what it means in this case and in the 1962 conveyance in particular.

Mr Francis divided the approval covenant in question into two parts, the first part being the words emboldened below:

“Not to erect on the land hereby conveyed any building other than a dwellinghouse which shall be a detached house of a general design and constructed of such types of materials and according to such plans and general specification as shall be submitted to and receive the reasonable approval of the Vendor such approval to be obtained before the building of any house on the land is commenced No windows except small windows fitted with opaque glass for a bathroom toilet or garage shall be constructed in any new building to be erected on the land hereby conveyed so as to overlook the Vendor's remaining property known as “Cox's” or the property to the north west side of the land hereby conveyed Any such small windows so permitted as aforesaid shall be so designed that the opening section of such windows are hinged at the top and open outwards for a few degrees only to the intent that they are so designed that they cannot be opened to give a view over the adjoining property of the Vendor on the south east side or the existing property on the north west side.”

As to the first part, Mr Francis argued that a number of “pointers” indicate that the term “the Vendor” should be taken to include Mr Warfield’s successors in title. The first was that the land in question was quite small (about 1800 square metres) and immediately adjoined the Vendor’s land. The shape of the plot, and the way the rest of the houses in the road were built, meant that the house to be built there would probably be close to the Vendor’s house (as indeed it was). The covenants in sub-clauses (1) to (3) were absolute and designed to protect the amenity and value of the Vendor’s land. The requirements in sub-clause (6) were detailed, requiring the submission for approval not only of plans and elevations but also of materials and “general specification”.

Mr Francis then turned to the second part of the approval covenant (the words not emboldened at paragraph 14 above), which he called “the unqualified part” of the covenant. He argued that it is an integral part of the first part, because to obtain approval under the first part there would have to be compliance with the second part; without that compliance the Vendor could reasonably withhold his approval.

Mr Francis argued that the failure of the 1962 conveyance to make any provision for what was to happen if Mr Warfield died indicated that his successors were to retain the benefit of this covenant. If it was personal to him, and he died before the new house was built, a purchaser would have no control over that development. Further, if the approval covenant was personal to him then he and his successors in title would have no control over the building of a second property if the first were to be destroyed. The covenant cannot have been intended as a short term and “one off” restriction. Bearing those points in mind, commercial common sense points to the construction of the approval covenant as benefiting successors in title.

Turning to the authorities, again Mr Francis stressed the need to consider this case on its own facts and that authority should be regarded only as a guide. He pointed out that the 1962 conveyance was not part of the creation of a building estate where the power to consent has to be vested in one individual – often a company, later dissolved as in Crest Nicholson – so as to avoid contradiction and confusion; by contrast, the successor in title to the Vendor in this case is easy to identify. He distinguished both Churchill v Temple and Savage v 60 Kent Road on the basis that in both those cases the relevant wording was different, requiring consent from the Vendor or his surveyor. He referred to Mahon v Sims [2005] 3 EGLR 67 where the expression “the Transferor” was construed to mean the successor in title to the original covenantee in circumstances where the latter was still alive and willing to give consent but had parted with the property.