Dennis & Anor v Davies

A restrictive covenant against anything which may become a nuisance or annoyance can apply to the effect of building works, even where a separate covenant requires management-company approval of plans. The covenant is assessed objectively by asking whether reasonable, sensible people, having regard to the ordinary pleasurable enjoyment of their homes, would be annoyed or aggrieved. The assessment must use robust and common-sense standards. A significant loss of an attractive river view may satisfy that test. Separate approval of plans does not remove the individual purchasers’ rights under the nuisance and annoyance covenant. An email stating that consent can be given if specified conditions are met is not formal written approval; it is only a statement of intended future consent.

The claimants, owners of neighbouring properties on a riverside housing estate, sought to enforce restrictive covenants against the defendant’s proposed three-storey extension. The covenants prohibited building without written approval from the management company and prohibited anything on the plot which might become a nuisance or annoyance to estate owners or occupiers.

The defendant had planning permission and relied on an email from the management company as written consent. The claimants alleged that the extension would materially reduce their river views and breach the nuisance and annoyance covenant. The issues were whether that covenant applied to building works, whether the extension constituted an annoyance, and whether the email amounted to approval.

1. Application of the nuisance and annoyance covenant. The covenant was not confined to activities or uses of the plot. Its wide wording could apply to the effect of alterations to an existing building. The separate permission covenant and the nuisance and annoyance covenant were cumulative. Approval of plans by the management company did not prevent a purchaser from enforcing the latter covenant.
2. Applicable test. Applying Tod-Heatly v Benham 40 Ch D 81, the question was whether reasonable people, having regard to the ordinary use of the claimants’ houses for pleasurable enjoyment, would be annoyed or aggrieved. The test was objective and had to be applied by robust and common-sense standards. Wood v Cooper [1894] 3 Ch 671 confirmed that a covenant of this kind could operate in relation to buildings.
3. Application to the evidence. The significant reduction in the river views from properties 16, 17 and 46 would trouble the minds of ordinary sensible inhabitants and therefore constituted an annoyance. Objections based only on the reduced gap, the approach to another property, or visiting the riverfront did not satisfy the objective test.
4. Other rights and planning permission. The transfer provision reserving the vendor’s right to build and rebuild did not regulate claims between purchasers. Planning permission did not determine compliance with the private covenants.
5. Written approval. The email stating that consent could be given upon provision of drawings and surveyor’s confirmation was, at most, a statement of intended future consent. It did not constitute formal approval in writing and did not bind the management company to grant consent if further reasonable objections arose.

Not stated in the judgment.