Covenants against nuisance and annoyance are common in conveyances, transfers and leases. The phrase has been subjected to judicial scrutiny on several occasions and it has long been widely accepted that it confers wider protection than is available under the tort of nuisance. Indeed, if it did not, the covenant would add nothing to a covenantee’s existing rights under the common law.
The issue in Dennis v Davies [2009] EWCA Civ 1081; [2009] PLSCS 288 was whether a covenant prohibiting a landowner from creating a nuisance or annoyance could be used to control the erection of potentially annoying buildings and to restrain troublesome activities . The Court of Appeal decided that it could.
The parties lived on a development situated on an island in the River Thames. A feature of the properties was their views of the river. One of the landowners obtained planning permission to construct a three-storey extension at the side of his property, despite the concerns of neighbours about the effect on their views.
The court ruled that a covenant prohibiting a landowner from creating a nuisance or annoyance encompassed all types of activities, including the construction of a building would constitute an annoyance. It cited of Tod-Heatley v Benham (1889) 40 Ch D 80, which established that something that disturbs the reasonable peace of mind of the ordinary sensible English inhabitant of a house constitutes an annoyance, and Wood v Cooper [1894] 3 Ch 671 to show that covenants against nuisance and annoyances can apply to buildings.
The landowner argued that the scope of the covenant was restricted by a separate covenant that gave a management company rights to control building on the development. Consequently, the court touched briefly on the issue of a management company’s responsibilities when dealing with an application for approval pursuant to restrictive covenants against further building on an estate.
Was the management company under an implied duty to consider the interests of the owners and occupiers on the development as well as its own as managing agent of the communal areas and facilities? Interestingly, the court was not referred to any authority on this issue and chose not to decide the point. However, Rimer LJ appeared open to the suggestion that the management company might have to concern itself with the interests of the other landowners, as well as its own.
None the less, the court decided that the covenants were capable of operating alongside each other. Consequently, the fact that the management company (acting in its own interest and, potentially, the interests of owners of the development as a whole) could control additional building on the development should not be allowed to prevent landowners from pursuing claims on their own account in respect of an actionable annoyance.
Covenants against nuisance and annoyance have become a familiar feature in conveyancing transactions over the years. This decision indicates that they should not be lightly dismissed.
Allyson Colby is a property law consultant
