Summary and implications
In a recent case1 the Court of Appeal held that building a house extension could breach a restrictive covenant against causing a nuisance or annoyance to the neighbours.
The decision confirms that a covenant against nuisance or annoyance will not be limited just to preventing nuisance activities on the land, but can also prevent the land being developed.
The Court of Appeal also reiterated the test for establishing breach of a restrictive covenant preventing a property owner from causing a nuisance or annoyance to another property owner.
- The test is an objective one, so will not be judged by reference to the neighbours’ opinions that they are suffering a nuisance.
- Instead, the court will look at whether the activity would annoy or aggrieve the reasonable neighbour, having regard to the ordinary use of the neighbouring houses for pleasurable enjoyment.
- The fact that planning permission has been granted for the extension does not stop a court finding that there has been a nuisance or annoyance.
Mr Davies bought a house and obtained planning permission for his extension
In 1987, a development company built an estate of 47 houses (all with river views). Each of the houses was sold and the communal areas were transferred to a management company. Each house buyer gave various covenants for the benefit of their neighbours and the management company (as set out in the box on the right).
Mr Davies bought one of the houses. He obtained planning permission for a three-storey extension to the house and started building. The work was halted when a number of his neighbours brought a court action to stop the extension on the basis that it would breach the nuisance covenant.
The arguments on both sides
Mr Davies’ neighbours argued that the management company had not consented to the extension in accordance with the approval covenant; and (even if it had consented), the extension would obstruct their view of the river and would diminish the value of their homes, causing them a nuisance or annoyance.
Mr Davies argued that he had email approval from the management company for the extension and that regulation of the work was controlled by the approval covenant. Therefore, his view was that the nuisance covenant could not extend to prevent building on the plot.
The High Court agreed with the neighbours: the extension would cause a nuisance
The High Court held as follows:
- Mr Davies did not have the approval of the management company; and
- the extension would cause a nuisance and annoyance to some of the neighbours and therefore the nuisance covenant would be breached.
An injunction was granted preventing Mr Davies from building the extension. Mr Davies appealed.
The Court of Appeal agreed with the High Court
The Court of Appeal upheld the decision of the High Court. The nuisance covenant was wide enough to cover activities of any nature on Mr Davies’ land, including the building of a house extension which, when built, would cause a nuisance or annoyance.
The nuisance covenant had to be interpreted in the light of the other covenants in the lease. However, there was no good reason why the approval covenant and the nuisance covenant could not operate alongside each other. Therefore, even if the management company had consented to the extension, this would not have limited the scope and effect of the nuisance covenant. The nuisance covenant could still be used to prevent development. The Court of Appeal agreed that the extension would cause a nuisance, even though Mr Davies had planning permission
If the parties had intended to limit the scope of the nuisance covenant, then they would have done so expressly in the wording of the covenant.
Developers must check for covenants against nuisance or annoyance before starting work
A developer of land will always check to see if there are any restrictive covenants preventing the land being used in a particular way. However, developers should now also look out for restrictive covenants preventing nuisance or annoyance to neighbours. Otherwise, the developer may find that a neighbour can rely on such a restrictive covenant to prevent its development from going ahead.
Click here to view 'restrictive covenants'