Restrictive covenants – Nuisance or annoyance – Traffic – Restrictive covenant prohibiting use of appellants’ land for any noisy pursuit or occupation or for any purpose that might grow to be a nuisance or annoyance – Covenant benefiting retained land of vendor on which housing later developed – Planning permission granted for development of school on land – Section 84 of Law of Property Act 1925 – Court making findings unfavourable to appellants regarding nature and extent of restriction – Whether proposed development likely to breach covenant – Appeal allowed
The appellant school trustees owned 44 acres of unregistered freehold land in Coventry, which they had laid out and used as playing fields. The land was subject to a restrictive covenant contained in a 1931 conveyance of that land from a charity and benefiting the adjacent retained land of the vendor; the covenant prohibited the erection of buildings “for any noisy pursuit or occupation or for any purpose which shall or may be or grow to be in any way a 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”. The vendor’s retained land had later been developed for housing and the dwellings sold on; the respondents were the owners of four of those dwellings. The vendor charity continued to exist but had ceased to hold any interest in the retained land.
In 2010, the appellants obtained planning permission to construct a two-storey school building on their land, together with car parking, access road, vehicle drop-off point and landscaping. The development was intended to accommodate the appellants’ two existing junior schools under one roof and cater for expansion in numbers, from approximately 280 pupils to 400 pupils. The respondents contended that the development would breach the restrictive covenant since the associated traffic noise and congestion would cause nuisance, damage, annoyance or disturbance within the meaning of the restriction.
The appellants applied to the court for declarations, under section 84(2) of the Law of Property Act 1925, that: (i) the restrictive covenant had ceased to benefit the retained land; and (ii) in any event, the development would not be a breach of that covenant. Dismissing the application, the judge held that the covenant was annexed to the retained land, such that it continued to benefit that land in the hands of the respondents, and that the development was likely to breach the covenant owing to potential nuisance and annoyance from traffic issues: see [2012] EWHC 2351 (Ch); [2012] 3 EGLR 151. The appellants appealed.
Held: The appeal was allowed.
(1) The judge had erred in finding that traffic issues resulting from the operation of the school would be a breach of the restrictive covenant. The practical effect of the judge’s approach was that the use and occupation of part of the burdened land for the proposed school would be a breach of covenant, even though there was no express prohibition against the building or operation of a school on the burdened land. If he were correct, it would impossible to operate a school on the burdened land without breaching the part of the covenant relating to nuisance and annoyance. Although all regular traffic in a residential area was a nuisance and annoyance in a general kind of way, the covenant was not aimed at prohibiting third party traffic movements on the public highway, any more than it was aimed at preserving an open space or a pleasant view for local residents. When the covenant was given in 1931, traffic was not the problem that it had since come to be, affecting practically every member of the public. Nowadays, traffic considerations were essentially a matter for the highways authority, which had to perform the difficult public function of accommodating the interests of local residents in reasonable conditions of peace and quiet and of the general public in being able to drive private cars, or commercial vehicles, or to use a bus service, or to use the public highway for cycling or walking on.
Although it was possible for a prohibition on nuisance or annoyance caused by traffic or traffic increase to be specially covered by a restrictive covenant, the covenant in the 1931 conveyance did not cover those matters. The covenant was directed at prohibiting activities that took place on the burdened land. It was aimed at activities on the burdened land as the source of the nuisance, such as fumes or smell or noise from an offensive trade or business, which might spread from and beyond the boundaries of the burdened land into the local neighbourhood. The residents’ objections based on potential traffic nuisance and annoyance were not objections to prohibited activities that would take place on the burdened land, but to increased traffic on nearby roads causing obstruction, congestion and noise that might affect the people living there. Although the increase in traffic would have a connection with the proposed school on the burdened land, the source of the traffic nuisance and annoyance was the lawful use of the public highway by the general public, not the taking place or carrying out of any prohibited activity on the burdened land: Tod-Heatly v Benham (1889) LR 40 Ch D 80 distinguished.
The court allowed the appeal on that point and granted the second of the declarations sought by the appellants. It was therefore unnecessary for it to decide the further issue as to whether the covenant had been annexed to the land so as to benefit it in the respondents’ hands.
Edward Denehan (instructed by Band Hatton LLP, of Coventry) appeared for the appellants; Michael O’Brien QC and Kevin Farrelly (instructed by The Law Partnership Solicitors LLP, of Coventry) appeared for the respondents.
Sally Dobson, barrister
Trustees of Coventry School Foundation v Whitehouse and others
Restrictive covenants – Nuisance or annoyance – Traffic – Restrictive covenant prohibiting use of appellants’ land for any noisy pursuit or occupation or for any purpose that might grow to be a nuisance or annoyance – Covenant benefiting retained land of vendor on which housing later developed – Planning permission granted for development of school on land – Section 84 of Law of Property Act 1925 – Court making findings unfavourable to appellants regarding nature and extent of restriction – Whether proposed development likely to breach covenant – Appeal allowedThe appellant school trustees owned 44 acres of unregistered freehold land in Coventry, which they had laid out and used as playing fields. The land was subject to a restrictive covenant contained in a 1931 conveyance of that land from a charity and benefiting the adjacent retained land of the vendor; the covenant prohibited the erection of buildings “for any noisy pursuit or occupation or for any purpose which shall or may be or grow to be in any way a 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”. The vendor’s retained land had later been developed for housing and the dwellings sold on; the respondents were the owners of four of those dwellings. The vendor charity continued to exist but had ceased to hold any interest in the retained land.In 2010, the appellants obtained planning permission to construct a two-storey school building on their land, together with car parking, access road, vehicle drop-off point and landscaping. The development was intended to accommodate the appellants’ two existing junior schools under one roof and cater for expansion in numbers, from approximately 280 pupils to 400 pupils. The respondents contended that the development would breach the restrictive covenant since the associated traffic noise and congestion would cause nuisance, damage, annoyance or disturbance within the meaning of the restriction.The appellants applied to the court for declarations, under section 84(2) of the Law of Property Act 1925, that: (i) the restrictive covenant had ceased to benefit the retained land; and (ii) in any event, the development would not be a breach of that covenant. Dismissing the application, the judge held that the covenant was annexed to the retained land, such that it continued to benefit that land in the hands of the respondents, and that the development was likely to breach the covenant owing to potential nuisance and annoyance from traffic issues: see [2012] EWHC 2351 (Ch); [2012] 3 EGLR 151. The appellants appealed.Held: The appeal was allowed.(1) The judge had erred in finding that traffic issues resulting from the operation of the school would be a breach of the restrictive covenant. The practical effect of the judge’s approach was that the use and occupation of part of the burdened land for the proposed school would be a breach of covenant, even though there was no express prohibition against the building or operation of a school on the burdened land. If he were correct, it would impossible to operate a school on the burdened land without breaching the part of the covenant relating to nuisance and annoyance. Although all regular traffic in a residential area was a nuisance and annoyance in a general kind of way, the covenant was not aimed at prohibiting third party traffic movements on the public highway, any more than it was aimed at preserving an open space or a pleasant view for local residents. When the covenant was given in 1931, traffic was not the problem that it had since come to be, affecting practically every member of the public. Nowadays, traffic considerations were essentially a matter for the highways authority, which had to perform the difficult public function of accommodating the interests of local residents in reasonable conditions of peace and quiet and of the general public in being able to drive private cars, or commercial vehicles, or to use a bus service, or to use the public highway for cycling or walking on.Although it was possible for a prohibition on nuisance or annoyance caused by traffic or traffic increase to be specially covered by a restrictive covenant, the covenant in the 1931 conveyance did not cover those matters. The covenant was directed at prohibiting activities that took place on the burdened land. It was aimed at activities on the burdened land as the source of the nuisance, such as fumes or smell or noise from an offensive trade or business, which might spread from and beyond the boundaries of the burdened land into the local neighbourhood. The residents’ objections based on potential traffic nuisance and annoyance were not objections to prohibited activities that would take place on the burdened land, but to increased traffic on nearby roads causing obstruction, congestion and noise that might affect the people living there. Although the increase in traffic would have a connection with the proposed school on the burdened land, the source of the traffic nuisance and annoyance was the lawful use of the public highway by the general public, not the taking place or carrying out of any prohibited activity on the burdened land: Tod-Heatly v Benham (1889) LR 40 Ch D 80 distinguished. The court allowed the appeal on that point and granted the second of the declarations sought by the appellants. It was therefore unnecessary for it to decide the further issue as to whether the covenant had been annexed to the land so as to benefit it in the respondents’ hands.Edward Denehan (instructed by Band Hatton LLP, of Coventry) appeared for the appellants; Michael O’Brien QC and Kevin Farrelly (instructed by The Law Partnership Solicitors LLP, of Coventry) appeared for the respondents.Sally Dobson, barrister