Woods & Anor v Riley & Anor

A restrictive covenant against use for a purpose that may be or become a nuisance or annoyance must be construed consistently with the grant. It does not prohibit the contemplated business use of the property. The court asks whether the particular use, including use of only part of the property, causes the relevant interference. Annoyance has no fixed legal meaning and is assessed by robust, commonsense standards, having regard to the pleasurable enjoyment of neighbouring land. A separate value limb is assessed by market-value evidence. Activities outside the land burdened by the covenant cannot breach that covenant, although ordinary nuisance principles may still apply. The assessment balances the parties’ reciprocal interests, but the court determines only complaints properly raised by the pleadings. On the evidence, the early-morning shop and post-office activities established neither breach nor nuisance.

Carole Woods and Richard Hughes owned and occupied a converted barn adjoining premises operated by Nigel and Ann Riley as a shop and Post Office. Restrictive covenants imposed by transfers in 1994 prohibited use for purposes capable of causing nuisance or annoyance, or tending to diminish the value of the retained land. The claimants alleged that building works, relocation of a sorting office, deliveries and associated noise breached the covenants and constituted common-law nuisance.

After a four-day trial and a view of the premises, HHJ Brunning dismissed the covenant and nuisance claims. The claimants appealed, alleging errors concerning diminution in value, mitigation and the expert noise evidence. The central questions were whether the complained-of activities breached the restrictive covenant and whether the activities outside the covenant land constituted nuisance.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. The appellants were ordered to pay the appeal costs, summarily assessed at £11,500. Permission to appeal was refused.
2. Construction of the covenant. The reference to use of the property or any part of it meant that the covenant was not confined to use of the property as a whole. However, because the premises had been conveyed as a Shop and Post Office, the covenant could not be construed so as to derogate from that grant. It was necessary to consider separately whether use as a sorting office fell within the contemplated business use and whether use of a previously unused part created a breach.
3. Nuisance and annoyance. The court applied the principles discussed in Tod-Heatley v Benham (1888) 40 CH 80 and Hampstead & Suburban Properties v Diomedus [1969] 1 Ch 258. Annoyance has no definite legal meaning. The issue is whether the activity interferes with the pleasurable enjoyment of neighbouring property, assessed by robust and commonsense standards and in connection with the purpose for which the property is used.
4. Value and balancing. The diminution-in-value restriction was separate from the nuisance or annoyance restriction. The trial judge was entitled to prefer the expert evidence showing no reduction in market value attributable to the complained-of works. The court also applied the good-neighbourliness and reciprocity principle described by Lord Millett in Southwark London Borough Council v Mills [2001] 1 AC 1. The parties’ residential and business uses had to be balanced, including the timing and necessity of deliveries, security considerations and steps taken to reduce disturbance.
5. Application. The evidence did not establish sufficient noise penetration from the sorting office itself. The newspaper van operated in the yard, which was outside the land covered by the covenant. Any common-law nuisance complaint concerning that activity had not been properly pleaded, so the judge was not required to determine it. The judge may have misunderstood the scale represented by the noise measurements, but he clearly understood the practical noise involved and was entitled to reach his overall conclusion.
6. Additional observation. Carnwath LJ considered that objective evidence showing significant disturbance from the sorting-office use itself could have justified a finding of breach, because it involved a distinct use of part of the property. That conditional observation was unnecessary to the result. He also noted that the ordinary law of nuisance could apply to a newspaper van if the use were not carefully controlled.

• Court of Appeal (Civil Division): On 4 July 2005, in [2005] EWCA Civ 1129, dismissed the appeal, ordered the appellants to pay the appeal costs summarily assessed at £11,500, and refused permission to appeal.
• Leicester County Court: HHJ Brunning made an order on 16 July 2004 dismissing the claims for breach of restrictive covenant and common-law nuisance.