Adrian Peter James Ball & Anor v Ann Fulton

An approval covenant requiring plans to receive the reasonable approval of “the Vendor” is personal to the original vendor where the conveyance does not extend that power to successors in title and its language and structure show that it was directed to the first construction of a dwellinghouse.

Express references elsewhere in the conveyance to successors in title strongly support that construction. A detailed window restriction forming part of the approval process does not become an independent absolute restrictive covenant merely because it states circumstances in which approval cannot reasonably be withheld. Once the original covenantee has died, such a personal approval covenant can no longer be performed and is obsolete for the purposes of Law of Property Act 1925, section 84(1)(a).

The applicants owned 23a Park Avenue South, Harpenden, which had been created from land conveyed by the then owner of number 23 in 1962. They applied under Law of Property Act 1925, section 84(1), to discharge or modify a restrictive covenant requiring a proposed detached dwellinghouse to receive the reasonable approval of “the Vendor” before construction.

The objector, the successor in title to the vendor’s retained land, contended that the approval power passed to her and protected the amenity and value of number 23. The applicants contended that the covenant was personal to the original vendor, who had died in 1992, and was therefore obsolete. The preliminary issue was whether the approval covenant was personal to the original covenantee.

1. Application granted. The Tribunal held that sub-clause 6 of the 1962 conveyance was personal to the original vendor, Mr Warfield. It was therefore obsolete within section 84(1)(a) of the Law of Property Act 1925 and was to be discharged.

2. The natural meaning of “the Vendor” was the named transferor, not an unspecified class of successors in title. The covenant contained no words extending the approval power to successors. That omission was significant because the conveyance expressly referred to successors in title where their inclusion was intended.

3. The surrounding structure confirmed that construction. The approval power concerned only the first house to be built on the newly created plot. It made no provision for approval of later extensions, alterations, replacement buildings, or the vendor’s death. By contrast, the conveyance separately imposed absolute restrictions capable of enduring for successors’ benefit. The approval covenant was directed to an anticipated event affecting the original vendor personally.

4. The window provisions were not a free-standing restrictive covenant. They formed part of the approval covenant by identifying circumstances in which approval could not reasonably be withheld. The vendor’s approval was expressly required to be reasonable, and the window provisions stated his minimum protection within that process.

5. Since the original vendor had died, the personal approval obligation could no longer be complied with. Its purpose could no longer be achieved, so discharge for obsolescence followed.

not stated in the judgment.