Coventry School Foundation v Whitehouse & Ors

Under Law of Property Act 1925 section 84(2), the owner seeking a negative declaration must prove entitlement to it on the balance of probabilities. A restrictive covenant benefits successors only where the land intended to benefit is easily ascertainable. External evidence may be used, but it must be readily accessible and sufficiently clear to remove uncertainty.

A covenant against use for nuisance or annoyance is assessed by robust common-sense standards, by reference to the sensible person. The assessment may include realistic future risks and need not be confined to the tort of nuisance. Regular school traffic causing noise, obstruction and congestion may fall within the covenant, while mere loss of a view, architectural dislike or speculative effects on property values will not necessarily do so.

The Trustees of the Coventry School Foundation sought declarations under section 84(2) of the Law of Property Act 1925 concerning a restrictive covenant in a 1931 conveyance. The first declaration sought to establish that the covenant did not benefit adjoining or adjacent land retained by the original vendor. The second sought to establish that construction and operation of a junior school, with associated parking and access arrangements, would not breach the covenant.

The defendants were representative owners of properties built on land formerly retained by the vendor. The issues were whether the covenant was enforceable by them and whether the proposed development might constitute a prohibited nuisance, annoyance, disturbance or diminution in value.

1. Burden of proof. Because the claimant sought negative declarations, it bore the burden of satisfying the court on the balance of probabilities. The standard remained the ordinary balance of probabilities, although the quality of evidence required for an unusual inference might be greater.
2. Benefit of the covenant. The benefit could run only by annexation. Section 78(1) of the Law of Property Act 1925 applied. The benefiting land had to be easily ascertainable. The conveyance and plan identified land to the north and north-east, and accessible archival evidence completed a short and clear chain of identification. The court therefore found that the retained land sold for housing development was capable of benefiting. Land occupied by one defendant outside that area was not shown to be within the benefiting land. The first declaration was refused.
3. Construction and noise. The covenant prohibited specified uses, not every act producing noise during construction. The operation of a junior school was not, on the evidence, use for a noisy pursuit or occupation within the covenant.
4. Nuisance and annoyance. These expressions were not treated as synonyms or as confined to the tort of nuisance. Nuisance concerned material interference with ordinary comfort, while annoyance concerned a real and reasonable apprehension affecting the mind and enjoyment of an ordinary sensible inhabitant. Both were judged with robustness and common sense, and by reference to circumstances and risks that might arise in the future.
5. Application. The additional traffic associated with school operation created a realistic risk of noise, parking obstruction and congestion. The evidence showed that obstruction of covenantees’ private accesses could occur regularly and was not a trivial or fanciful concern. Taken together, those effects might grow to be a nuisance or annoyance. The proposed development therefore could not be declared free of breach. The value-protection wording was directed to the retained land as a whole and, in any event, the valuation evidence did not establish the required tendency to diminish individual property values.
6. The second declaration was also refused. The claim was therefore dismissed.

First-instance decision. No appellate history is stated in the judgment.