Restrictive covenants prohibiting nuisance are usually considered vague and anodyne, but a recent case (Trustees of the Coventry School Foundation –v– Whitehouse [2013] EWCA Civ 885) shows that they could have teeth in the right circumstances.

A 1931 conveyance of land to the Trustees of the Coventry School Foundation, then known as the Bablake School Foundation, contained a restrictive covenant.  The covenant was expressed to prohibit various uses of the Foundation’s land and, as is often the case, included additional wording to prevent “any noisy noxious or offensive trade business pursuit or occupation or for any purposes which shall or may be or grow to be in any way a nuisance damage annoyance or disturbance” to the adjoining land owners, being the beneficiaries of the covenant.

The burdened land was used as school sports fields but the Foundation had obtained planning consent to build a new junior school on a small part of the burdened land.  The respondents owned land which they claimed had the benefit of the restrictive covenant.  They argued that, although there was no express prohibition against building the school, it would create a nuisance and annoyance due to the noise, parking and congestion caused by the increased traffic at certain times of the day.

The Court of Appeal looked at the purpose and scope of the covenant.  The intention was to prevent activity “on the burdened land” which may be or grow to be a nuisance and its affect on the benefitting land.  The increased traffic on the adjoining highway was not an activity taking place on the burdened land.  It was an activity occurring on the adjoining public highway.  As a result the Court found that there was no breach of the restrictive covenant.

Although the covenant was not directed at nuisance caused by the general public using the public highway, the Court did agree that the traffic issues described could potentially comprise a nuisance if the traffic was being generated on the land burdened by the covenant.

The case is a reminder that a simple “no nuisance” covenant could be used to delay or even halt development, even if the use which is proposed is not specifically prohibited by the covenant.