Housing development – Covenants – Respondents purchasing properties subject to covenants against use causing nuisance and annoyance to other owners – Appellant owner obtaining planning permission for three-storey extension – Respondents successfully challenging extension as being contrary to restrictive covenant – Whether covenant applying to extension to existing property – Whether management company consent to proposed works precluding assertion that works constituting annoyance – Appeal dismissed
A development company (H) built an estate of 47 units of three– and four–storey properties. Each property enjoyed river views and many also had mooring rights; almost every house had a waterside frontage.
The respondents owned five of the houses and the appellant was their neighbour. H had sold the houses under a series of materially identical transfers between itself, the management company and the original purchasers. It subsequently transferred the communal areas and the mooring facilities to the management company, which covenanted to manage and maintain them. Each transfer included a series of restrictive and positive covenants. By clause 4(a), the purchaser and his successors in title covenanted to observe and perform the restrictive and other covenants and stipulations that were set out in the third schedule. Paragraph 1 of that schedule provided that the management company’s permission had to be obtained before anything could be erected on the plot or any part of any building. Paragraph 2 included a covenant not to carry on from the plot, or a part of it, any trade, business or manufacturing concern that might be or become a nuisance or annoyance to the owners or occupiers for the time being of the estate (the nuisance and annoyance covenant).
The appellant obtained planning permission to erect a three–storey side extension and work was commenced. The respondents brought a claim to enforce the restrictive covenants. They submitted, inter alia, that the extension would breach the nuisance and annoyance covenant because it would constitute a nuisance or annoyance to the owners or occupiers of the estate and would entirely or partly obscure their views of the river and/or diminish the value of their properties.
The judge declared that the proposed building works would breach the restrictive covenants if they were carried out and granted an injunction restraining the appellant from carrying out those works: [2008] EWHC 2961 (Ch); [2008] 49 EG 76 (CS).
The appellant appealed. Issues arose as to whether: (i) the covenant in paragraph 2 included activities such as extending to an existing house; and (ii) management company approval precluded an assertion that the works would constitute an actionable annoyance.
Held: The appeal was dismissed.
(1) The ordinary and natural construction of the purchaser’s covenant in para 2 was sufficiently wide to be capable of extending to activities of all natures, including the building of an extension to an existing house that, when built, would be an actionable annoyance: Wood v Cooper [1894] 3 Ch 671 considered.
However, para 2 had to be interpreted in the context of the third schedule; and, whatever their potential reach, on the true construction of paras 1 and 2, the allegedly implied obligations of the management company in considering a para 1 approval application could not have the implied consequence of cutting down the apparently unambiguous scope of para 2. The natural sense of the language of the relevant part of para 2 could extend to a restraint on the erection of potentially “annoying” buildings. Had the parties intended to cut that down, they would have done so expressly. There was no good reason why paras 1 and 2 could not operate alongside each other.
(2) There was no reason why the giving of a para 1 approval should be regarded as impliedly preventing a plot owner or occupier from asserting and proving that despite such approval the proposed building would constitute an actionable annoyance in breach of para 2. The reasonable man was unlikely to be impressed by the proposition that the ordinary sense of the relevant language of para 2 was impliedly cut down by the existence of para 1. That paragraph made it clear that the obtaining of approval was the precondition to carrying out any building work. However, it did not automatically foreclose the opportunity for a covenantee to assent that the approved building would nevertheless constitute an annoyance contrary to para 2.
Tom Weekes (instructed by Pitmans, of Reading) appeared for the appellant; Martin Hutchings (instructed by IBB Solicitors, of Uxbridge) appeared for the respondents
Eileen O’Grady, barrister
