Rose Builders (Properties) Limited v Alpha Trust [2026] EWHC 2241 (Ch)

Rose Builders is primarily a property and contract case about a restrictive covenant and an overage-style payment mechanism affecting development land in Essex.

For planning purposes, the judgment contains a useful reminder that commencing a planning permission does not create a general planning-law obligation to complete the whole authorised development. The court relied on the Supreme Court decision in Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30.

The case is also useful when drafting or interpreting planning uplift and overage arrangements because the court tied the valuation exercise to the particular planning permission and the wording of the covenant.

Neutral citation

[2026] EWHC 2241 (Ch)

Court

High Court of Justice, Business and Property Courts of England and Wales, Property Trusts and Probate List

Judgment date

3rd September 2026

Judge

Saira Salimi, sitting as a Deputy High Court Judge

Case number

PT-2025-000021

The dispute grew out of a land swap and development covenant

Rose Builders entered into a land swap arrangement connected with land near Manningtree High School. The arrangements included restrictions on the use of development land and provisions under which the restriction could be varied in return for a payment described as the Variation Price.

The dispute was not a challenge to a planning decision. It was a Part 8 claim asking the High Court to interpret the covenant, identify who was entitled to its benefit and decide how the payment provisions operated.

The March 2023 permission became central to the valuation

A planning permission granted on 17th March 2023 authorised an additional 80 dwellings and a convenience store across phases 4a and 4b of the wider development.

Rose Builders served a Price Notice identifying that permission as the planning consent which triggered the release provisions. The parties produced very different figures for the Variation Price, eventually leading to the court proceedings.

The judge held that Enhanced Value meant the value of the Green Land or Sliver with the benefit of the March 2023 permission as it stood at the date of the Price Notice and with the covenant released.

The earlier planning condition did not add ransom value

The court rejected an interpretation that would have imported extra ransom value from an earlier version of a planning condition under a different permission.

At the date of the Price Notice, the earlier condition had already been varied. The relevant overage calculation depended on the specific March 2023 planning permission identified in the Price Notice.

The court therefore held that no additional ransom value arose from the earlier condition or from the other permissions affecting phases 1 to 3.

That is an important practical point for planning uplift and overage. The drafting needs to identify clearly which planning permission, valuation date and assumptions control the payment.

Starting the permission did not mean the whole scheme had to be completed

Alpha Trust argued that once Rose Builders had commenced development it was obliged to complete the development under the outline and March 2023 permissions.

The court rejected the planning-law part of that argument. There is no general obligation on a person who obtains planning permission to carry out the authorised works at all.

The judge referred to Hillside, where the Supreme Court confirmed that failure or inability to complete all development authorised by a planning permission does not make development already carried out unlawful merely for that reason.

This does not allow a developer to ignore planning conditions. Conditions may still require particular works or steps at particular stages. The point is narrower: commencement itself does not impose a general duty to finish every element shown by the permission.

The covenant did not force Rose Builders to proceed at any price

The court then considered the private agreement separately. The release provisions required a Price Notice and provided a mechanism for agreeing or determining the Variation Price.

But the wording did not require Rose Builders to pay that price regardless of commercial consequences. If it chose not to pay, it would not obtain the deed of variation and could not use the restricted land for the proposed development.

The judge therefore declared that Rose Builders was not obliged to make the final request for a variation merely because the price-setting process had begun.

The benefit of the covenant differed between the two areas of land

The court also had to decide whether Alpha Trust had inherited the benefit of the restriction from the former school company.

Alpha Trust was not entitled to the benefit of the covenant affecting the Green Land, and Rose Builders was entitled to serve notice terminating the relevant agreement and remove that restriction from the title.

Alpha Trust was, however, entitled to the benefit of the covenant affecting the Sliver. That conclusion turns on the particular transfers and contractual arrangements and is not a general planning rule.

Key point from Rose Builders

Rose Builders is useful for two distinct reasons. First, overage and uplift calculations turn on the exact contractual wording, including which planning permission and valuation date are specified. Secondly, starting a planning permission does not, by itself, create a planning-law duty to complete the whole permitted scheme.

For the planning-law principle itself, Hillside remains the stronger primary authority.

Read the Rose Builders judgment

The approved High Court judgment is held in the Planning Geek case-law library. Gold Members can open the protected PDF below.

Rose Builders Case Law Page Created: 20th September 2026