Sale of land – Restrictive covenant – Noise nuisance – Claimants acquiring land subject to restrictive covenant prohibiting noise and nuisance – Claimant obtaining planning permission for development — Claimant applying for declarations that covenant not benefiting retained land – Whether defendants having onus of proving declaration should not be made – Whether proposed development constituting breach of covenant – Application dismissed
By a conveyance dated 29 October 1931, the claimants acquired 44 acres of unregistered freehold land in Coventry from a charity. The charity also owned and retained adjoining or adjacent land. The acquired land was subject to a restrictive covenant which 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 or their successors in title”. The acquired land was laid out and used by the claimants as playing fields.
On 30 March 2010, the claimants were granted planning permission to develop part of the acquired land by the construction of a two storey school building, car parking, access road, vehicle drop off point and landscaping (the development). The development was intended to be a junior school to accommodate the claimants’ two existing junior schools in Coventry under one roof and to cater for expansion in numbers from about 280 pupils to 400 pupils.
Although it appeared from endorsements on the 1931 conveyance that the claimants were aware of the restrictive covenant until 1972 at least, its existence seemed to have been subsequently forgotten or overlooked until it was referred to in a letter from a local resident to the planning authority during the consultation process in December 2009.
The claimants applied for two declarations under section 84(2) of the Law of Property Act 1925 seeking to establish that: (1) the restrictive covenant did not benefit the retained land; or (2) if it did, or might do so, the development would not constitute a breach of that covenant. The defendants owned properties built on retained land and objected to the development contending that it was prohibited by the covenant because a school would be noisy and would grow to be nuisance, damage, annoyance or disturbance due to traffic associated with the operation of a school.
Held: The application was dismissed.
(1) It was open to the owner of burdened land and the owner of benefiting land to seek a declaration. In the present case, the owners of the burdened land sought declarations. If made, the declarations would operate in rem. As the claimants had chosen to come to court and seek a declaration in the negative, it was for them to satisfy the court that the declaration should be made, not for the defendants to prove that it should not be made.
(2) The land to be benefited had to be so defined as to be easily ascertainable, and the fact that the covenant was imposed for the benefit of that particular land had to be stated in the conveyance together with the persons or the class of persons entitled to enforce it. The fact that the benefit of the covenant was not intended to pass to all persons into whose hands the unsold land might come was not objectionable so long as the class of persons intended to have the benefit of the covenant was clearly defined. It was permissible to look outside the instrument itself for evidence from which to identify the benefiting land and it was a matter of fact and degree in each case whether the benefiting land was easily ascertainable: Marquis of Zetland v Driver [1939] Ch 1 applied; Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 EGLR 113 and Crest Nicholson Residential (South) Ltd v McAllister [2004] 2 EGLR 79; [2004] 24 EG 150 considered.
In the present case, it was easily ascertainable from the 1931 conveyance that the retained land to the north and north-east of the land sold to the claimants had been intended to benefit from the covenant, apart from the second defendant’s land which was located outside the benefiting land and was not part of the retained land. Accordingly, it was not easily ascertainable on the available evidence that the second defendant’s land had been intended to benefit from the covenant. However, that was not a reason for concluding that the land which could easily be ascertained as intended to benefit was somehow tainted by the uncertainty surrounding other adjoining or adjacent land so as to deprive it of that benefit. In all the circumstances the first declaration would not be made.
(3) Taken as a whole, the evidence was insufficient to support a finding that it was as likely as not that the operation of the school will result in the claimants’ land being used for a noisy pursuit or occupation. However, the real area of controversy in this case was about traffic and the operation of the school. The question was whether the sensible person would consider that the traffic attending the school, i.e., the noise, parking and obstruction, and congestion caused by such traffic, was a use of the claimants’ land for a purpose which should or might be or might grow to be in any way a nuisance or annoyance. Having regard to the language and structure of the first restriction and the covenant as a whole, there was considerable force in the argument that the traffic issues would or might grow to be a nuisance or annoyance. Accordingly, the second declaration would not be made: Tod-Heatly v Benham (1889) LR 40 Ch D 80 and Dennis and others v Davies [2008] EWHC 2961 (Ch) considered.
Edward Denehan (instructed by Band Hatton LLP, of Coventry) appeared for the claimants; Mike O’Brien QC (instructed by the Law Partnership Solicitors LLP, of Coventry) appeared for the defendants.
Eileen O’Grady, barrister
