Back in the late 1980s, a former mill on the banks of the river Thames got a facelift. It was transformed into 50 smart new homes, all carefully oriented to maximise views of the river through deliberately designed gaps between the houses.
Each purchaser entered into a restrictive covenant, not to “do or suffer to be done …anything …which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the estate or the neighbourhood”. The covenant was made with the developer, the management company and all the other property owners on the estate for the benefit of the rest of the estate.
Fast forward 20 years and one owner (Mr Davies) decided to build a three storey extension to his riverside pad, but his neighbours had other ideas. They argued that the extension would create an “annoyance”, by reducing their views of the river. Some pointed to a significant reduction in their view of the river through the gaps between the houses; others merely complained that the development was not in keeping with the rest of the estate. They also tried to argue that the extension would reduce the value of their own properties, although later expert valuation evidence revealed that this was not the case.
The owner accepted that he was bound by the restrictive covenant, but denied that his proposed extension would breach it. He also sought to argue (unsuccessfully) that the restrictive covenant only applied to what he did in the property, not to the building itself – there was a separate restrictive covenant dealing with alterations to the building, which required him to get all plans and elevations approved in advance by the management company.
What is a nuisance or annoyance?
The judge decided this is an objective test, to be determined by “robust and common sense standards”: would reasonable people, having regard to the ordinary use of the neighbours’ houses for pleasurable enjoyment, be annoyed and aggrieved by the extension? Would the extension trouble the mind of the ordinary sensible English inhabitant of the neighbours’ houses?
The judge decided that the answer to all these questions was yes. Based upon his visit to the site, he concluded that “the three storey red brick extension would trouble the minds of the ordinary sensible English inhabitant of any of those houses and in those circumstances it does constitute an annoyance.”
What does this mean?
- This case confirms that a covenant against annoyance and nuisance can apply to the alteration and construction of buildings.
- It also highlights the fact that would-be developers may need more than planning permission to go ahead with their building works. Mr Davies had already obtained planning permission but his troubles were by no means over. As well as the restrictive covenant against annoyance and nuisance, there was a further restrictive covenant requiring him to get his plans approved by the management company before starting work.
Possibly Mr Davies could have tried to obtain indemnity insurance, but it is unlikely in the circumstances that insurers would have considered this, especially if there had been objections to his planning application. An approach to the neighbours was clearly not going to receive a positive response so another option would have been to make an application to the Lands Tribunal to discharge or modify the restrictive covenant, but this is a slow and expensive process, with no guarantee of the desired result, especially as the reason for the covenant being imposed in the first place was still very much in existence.