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Interpretation - breach

Covenant not to cause annoyance

Reduced views from building extension sufficient to cause annoyance

Davies v Dennis
[2009] EWCA Civ 1081

A covenant not to cause nuisance or annoyance was capable of protecting the views towards the river of those with the benefit of the covenant. The person who was subject to the benefit of the covenant could not therefore build an extension that would obstruct those views. The fact that permission was given by a management company for the works to go ahead under a separate covenant did not mean that there was not a breach of the covenant against a nuisance.


Not to use as a private dwelling-house

Martin v David Wilson Homes Ltd
[2004] EWCA Civ 1027

Facts

The restrictive covenant said:
    "..not to use or permit or suffer any buildings erected thereon or any part thereof to be used for any other purpose than as a private dwellinghouse either with or without garages and other necessary outbuildings."
This was a classic case. A developer had bought part of a plot of land to which this covenant applied and wanted to build a number of houses on it. A neighbour sought to rely upon the covenant to prevent him from doing so.

Decision

It was held that on a true construction of this particular covenant in the context of other clauses in the conveyance the restriction did not prevent the erection of further houses. The suggestion by Neuberger J (as he then was) in the first instance decision of Crest Nicholson Residential (South) Ltd v McAllister [2002] EWHC 2443 (Ch); [2003] 1 All ER 46 (decided on a different point on the appeal) that the indefinite article "a" as a general rule connotes some form of singularity is wrong. Buxton LJ at paras 22 and 44:
    "Contrary to a view expressed in one of the authorities [Crest Nicholson] I do not think that the expression 'a' does carry any necessary implication of singularity. 'A' is an article, not a number. When, as here, one is concerned with how any particular building shall be used, a natural way of expressing that is use 'as a private dwellinghouse'. The expression a private dwellinghouse takes its nature from its context. It does not have any fixed connotation of singularity irrespective of what the context may indicate."
In other words, the covenant did not limit the number of houses to be built on the site but stated that any building that was built on the site was to be used as a private dwelling-house.


Positive or restrictive covenant?

See Blumenthal v The Church Commissioners for England [2004] EWCA Civ 1688, which is discussed on the page dealing with modification and discharge of restrictive covenants.


Traffic noise

Nuisance on public highway - school traffic

Trustees of the Coventry School Foundation v Whitehouse
[2013] EWCA Civ 885

Summary

The Court of Appeal held that, although there might well be traffic issues of noise, parking and obstruction, and congestion resulting from the operation of the school, any nuisance or annoyance caused to the potential covenantees who owned properties nearby was not within the scope of the covenant because the covenant was directed to activities taking place on the burdened land, rather than on the public highway.

Facts

The claimant trustees (B) had acquired unregistered freehold land by a conveyance. This imposed a restrictive covenant on B’s land for the benefit of land retained by the seller (S). The covenant included a restriction against the erection of any building 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…”
B obtained planning permission to develop part of the land (presently used as playing fields) into a school with associated parking and an access road. Having investigated the land, which was originally intended to benefit from the covenant (which was subsequently sold by S), B sent a circular letter to the owners of 1200 nearby houses seeking consent to the development. Since no unanimous consent was given – and there were a number of objections – proceedings were issued by B against some of the objectors (O) (as representative defendants of the covenantees).

For the purpose of the declarations sought, the B submitted that the restrictive covenant was unenforceable on the basis that the “adjoining or adjacent” land retained by S was not easily ascertainable or, if the covenant remained enforceable, that the development would not constitute a breach of it.

First instance

The Court held that the land with the benefit of the covenant was ascertainable. It was common ground that the benefit of the covenant could only run by annexation and the judge noted from the case law in this field that the ability to ascertain easily the land enjoying the benefit of the covenant remained an important issue. Since the conveyance referred to the sellers having “adjoining or adjacent property” and attached a plan showing the relevant land, he held that the land intended to benefit from the covenant was easily ascertainable from this document.

The Court refused the declaration that the development would not be in breach of covenant. The traffic issues of noise, parking and obstruction, and congestion resulting from the operation of the school would or might be or grow to be a nuisance or annoyance in breach of the covenant.

B appealed to the Court of Appeal.

Decision on appeal

The Court of Appeal allowed the appeal and disagreed with the High Court’s conclusion on the anticipated breach of the covenant.

The Court noted that "in a general kind of way" all regular traffic in a residential area is a nuisance and annoyance. However, the Court confirmed that this source of potential nuisance and annoyance – namely third party traffic movements on the public highway - was not the source to which the covenant was directed. The Court emphasised that the covenant was aimed at activities on the burdened land as the source of the nuisance. Since the judge’s findings were in relation to activities (namely potential traffic nuisance and annoyance) on the highway, these did not relate to prohibited activities on the burdened land and therefore could not be in breach of the covenant. In light of this finding, there was no need for the Court to consider the enforceability of the covenant.



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