Davies v Dennis & Ors

A restrictive covenant prohibiting anything on land that may become a nuisance or annoyance can extend to the erection of a building, including an extension that materially interferes with neighbours’ enjoyment of their homes. A separate covenant requiring prior written approval for building works does not, without express words, limit the wider covenant. Approval under the building covenant therefore does not prevent a neighbour from proving that the building is an actionable annoyance. A communication stating that consent can be given if specified material is provided is ordinarily a non-binding statement of future intention, not conditional approval.

Anthony Davies appealed against an order of His Honour Judge Behrens in the Chancery Division. The judge had declared that proposed works to a three-storey side extension would breach restrictive covenants, granted an injunction, and ordered costs.

The appeal challenged the construction of two covenants in the transfer of the property and whether correspondence from the management company constituted written approval. The appellant did not pursue the challenge to the judge’s factual conclusion that the extension would be a nuisance or annoyance. The central issues were whether the nuisance-or-annoyance covenant could apply to building works and whether the management company had already granted the required approval.

1. Paragraph 2 covenant. The appeal on construction was dismissed. The covenant prohibited doing or suffering on the plot anything of any nature that might become a nuisance or annoyance. Its ordinary and natural meaning was sufficiently wide to include building an extension that, once built, would annoy neighbours. The expression extended beyond common-law nuisance and was directed to the wider protection recognised in Tod-Heatly v Benham (1888) 40 Ch D 80.
2. Relationship with paragraph 1. The building-approval covenant and the nuisance-or-annoyance covenant operated alongside each other. The existence of the former did not implicitly cut down the apparently unambiguous scope of the latter. A paragraph 1 approval was a precondition to carrying out building work, but it did not automatically prevent another covenantee from establishing an actionable annoyance under paragraph 2. The court declined to decide the precise scope of any implied obligations owed by Peverel when considering an approval application, particularly as Peverel was not a party.
3. Meaning of annoyance. The applicable assessment was objective. The question was whether reasonable and sensible people, having regard to the ordinary use of their houses for pleasurable enjoyment, would be annoyed or aggrieved. The court did not reopen the judge’s factual value judgment, which was based on the evidence and view of the properties.
4. Written approval. The alternative ground also failed. The phrase consent can be given on provision of specified material was not equivalent to consent being given conditionally on its production. It conveyed only that Peverel intended to give formal approval if the material was provided. It was non-binding and did not bind Peverel to approve the works after the conditions were met.
5. Disposition. Lord Justice Rimer dismissed the appeal. Lord Justices Wilson and Ward agreed.

• Court of Appeal (Civil Division) — Appeal from the order of His Honour Judge Behrens dated 21 November 2008. The appeal was dismissed.
• High Court of Justice, Chancery Division — The judge declared that the proposed building works would breach the restrictive covenants, granted an injunction restraining the works, ordered the appellant to pay the respondents’ costs, and gave permission to appeal.