Housing development – Covenants – Claimants purchasing properties subject to covenants against use causing nuisance and annoyance to other owners – Defendant owner obtaining planning permission for three-storey extension – Claimants objecting to extension as contrary to restrictive covenant – Whether extension constituting nuisance or annoyance for purposes of covenant – Claim allowed
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 claimants owned five of the houses and the defendant 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. That schedule also included a covenant not to carry on from the plot, or any part of it, any trade, business or manufacture 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 defendant obtained planning permission to erect a three-storey side extension and work was commenced. The claimants brought a claim to enforce the restrictive covenants. They submitted, inter alia, that the extension would breach the nuisance and annoyance covenant since 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.
Held: The claim was allowed.
It was not sufficient, in order to bring the case within the words of the covenant, for the claimants to show that a particular person objected to what was being done. The court had to be satisfied that reasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved by what was being undertaken. It was an objective test to be judged by robust and common-sense standards: Tod-Heatley v Benham (1888) 40 ChD 80 and Wood v Cooper [1894] 3 Ch 671 considered.
In the instant case, some of the claimants’ objections would fail the objective test. However, having had the benefit of a view from each of the claimants’ houses, the court was satisfied that the loss of that view would be significant for at least some of the properties should the proposed extension be built. The extension would trouble the minds of the ordinary sensible English inhabitant of any of those houses and, in those circumstances, it constituted an annoyance within the meaning of the covenant.
Martin Hutchings (instructed by IBB Solicitors, of Uxbridge) appeared for the claimants; Tom Weekes (instructed by Pitmans, of Reading) appeared for the defendant.
Eileen O’Grady, barrister
