Dennis v Davies involved a small upmarket housing estate. However, it has ramifications for those seeking to develop any property which is subject to a covenant not to cause a nuisance or annoyance.
The estate in question was situated next to the River Thames. It had been designed so that each house on the development had a view of the river. The defendant was proposing to build a three-storey extension on the side of his house which would partially block some of the other residents' river views.
Planning permission for the development was obtained (albeit on appeal). However, the defendant's property was subject to a number of covenants. One covenant prohibited building except in accordance with plans approved by the management company. By a second covenant, the defendant covenanted "not… to do or suffer to be done [on the property] … anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the estate…".
The claimants alleged that the proposed extension would constitute a nuisance or annoyance, in breach of the second covenant. The planning inspector who determined the appeal acknowledged that the outlook from one of the houses would be affected but did not consider that there would be any material reduction in their living conditions. The claimants argued that the function of the planning system was to protect the interests of the public at large, not the private interests of one person against the activities of another.
It is well established that there is no such thing as a right to a view at common law. Nor (unlike a right to light) is it possible to acquire such a right by prescription. In this case however, the claimants were using the covenant to protect the existing views from their properties.
The High Court considered previous authorities on the meaning of "annoyance". This is a wider term than nuisance. Previous cases had held that an act which is an interference with the pleasurable enjoyment of a house is an annoyance or grievance. The test is objective. The question was therefore whether reasonable people living in the affected houses would be annoyed by the extension. The court found that some of the claimants' objections did not meet this test. However, it found that in several cases the loss of the view was significant, and on this basis it concluded that the proposed development would be an annoyance.
The defendant also tried to argue that the first covenant, requiring the consent of the management company, was the only covenant which was intended to apply to building works, and that the nuisance and annoyance covenant did not apply. This was rejected by the court.
Things to consider
It has always been the case that developers must obtain the requisite consents under restrictive covenants preventing building, as well as planning permission. This decision underlines that developers must also pay special attention to covenants prohibiting nuisance and annoyance.
The historic case law on the "annoyance" test has focused on residential properties. It is unclear to what extent phrases like "the ordinary use of a house for pleasurable enjoyment" can be applied by analogy to commercial properties where, in most cases, factors such as the view are less important. However, a judge in one of the cases expressed the test in more general terms: "Anything which raises an objection in the minds of reasonable men may be an annoyance within the meaning of the covenant".
Those negotiating the terms of covenants may wish, when acting for the covenantor, to remove the words "annoyance" from the scope of the covenant. Those building on land subject to existing covenants must consider carefully the terms of all of the covenants on the property. Insurance may need to be considered in the light of this case.
Another interesting point to come out of the judgment is the approach of the court to determining whether the management company had given its consent to the extension, under the terms of the first covenant. Given the court's conclusion that the development would breach the nuisance and annoyance covenant, it was not strictly necessary to decide the consent point; however, it went on to do so.
The management company, which was fully aware of the residents' objections, had taken some time to consider the defendant's application. Eventually the estate manager sent an email, which said
"I have now been advised by [the] company solicitor that consent for the application can be given on provision of the following
- Professional drawings confirming that the extension is in line with existing properties…
- Confirmation by an independent RICS surveyor … that your boundary lines are not being altered in relation to the work."
Was that a consent within the meaning of the covenant? The court found that it was not. It was at best a statement that consent would be given in the future if the two conditions were satisfied. It did not bind the management company to grant consent if, on further investigation, other reasonable objections to the granting of consent arose.
This forms an interesting contrast with the recent decision of the High Court in Alchemy Estates v Astor. That case concerned an application for consent to the assignment of a lease. The landlord wrote to the tenant stating that it was prepared in principle to grant consent, but that this was subject to payment of the landlord's costs and the completion of a licence to assign. The question was whether the landlord had in fact already granted consent by virtue of this letter. The court found that it had. The two cases do of course arise in different contexts. Perhaps a further distinction can be drawn on the basis that the conditions the landlord imposed in Alchemy were more procedural than substantive.