PP 2013/128

Landowners seeking to enforce restrictive covenants must show that the activity that they are seeking to prevent will take place on the burdened land itself Covenants against nuisance and annoyance are common in conveyances, transfers and leases. The phrase has been subjected to judicial scrutiny on several occasions – most recently in Trustees of Coventry School Foundation v Whitehouse [2013] EWCA Civ 885; [2013] PLSCS 170. The trial judge was asked whether the covenants were unenforceable, despite the fact that the identity of the land that benefited from them was unclear and could not be established by reference to a description or plan in the conveyance that created them.  The covenants in question prohibited any use that might cause any “nuisance damage annoyance or disturbance to the Vendors and their successors in title or which may tend to depreciate or lessen the value of the Vendors’ adjoining or adjacent property”, and the landowners who claimed to be entitled to enforce them were seeking to prevent the construction of a new junior school on the land burdened by them, which would, in due course, accommodate up to 400 students. The trial judge decided that the covenants were enforceable because it was easy to identify some or all of the land that benefitted from them by reference to extrinsic evidence: see Crest Nicholson Ltd v McAllister [2004] EWCA Civ 410; [2004] 2 EGLR 79.  He dismissed the objectors’ suggestions that the covenant prohibited the erection or operation of the school and rejected objections based on the design of the school, its impact on the view from the adjoining properties and its effect on their value.  However, he agreed with the objectors that the Foundation’s proposals would result in a breach of covenant because the new school would be a source of traffic nuisance and annoyance for the residents living nearby. The Court of Appeal took a different view. It commented that the practical effect of the judge’s approach was that using and occupying part of the burdened land as a school would constitute a breach of covenant, even though the covenants did not expressly prohibit the owners of the burdened land from constructing or operating a school.  Their Lordships accepted that traffic would increase at certain times of the day during term time and that residents living nearby may be affected by congestion, obstruction and noise connected with traffic going to and from the school. However, the covenants that the residents were trying to enforce restricted the activities that could take place on the burdened land and were not aimed at prohibiting third- party traffic movements on the public highway, over which the Foundation had no control.  Prohibitions against nuisance or annoyance caused by traffic, or by increases in traffic, may fall within the scope of specially drafted restrictive covenants. However, this was not the case here.  The objectors’ complaints about traffic issues on the public highway did not go to the activities of the Foundation on the burdened land or its use of it.  Consequently, their Lordships upheld the Foundation’s arguments that the construction of the new school would not result in a breach of the restrictive covenants and declined to hear any argument about the enforceability of the covenants in question. Allyson Colby is a property law consultant