Coventry School Foundation v Whitehouse & Ors

A restrictive covenant directed at activities on burdened land does not ordinarily extend to nuisance, annoyance or disturbance caused solely by third-party use of a nearby public highway. Traffic generated by a proposed development may be connected with the use of burdened land, but that connection is insufficient where the covenant targets activities carried out on the land itself. The covenant may cover effects, such as fumes, smells or noise, spreading from activities on the burdened land into the surrounding area. The scope depends on construction of the covenant as a whole. A covenant specifically drafted to regulate traffic or traffic increases could produce a different result.

The Trustees of the Coventry School Foundation appealed from an order of HHJ Simon Barker QC dated 10 September 2012. The High Court refused declarations that restrictive covenants in a 1931 conveyance were unenforceable under section 78(1) of the Law of Property Act 1925 and that the proposed construction and operation of a new school would not breach the covenants.

The respondents, owners of nearby properties, relied on anticipated traffic, parking, obstruction, congestion and noise on surrounding public roads. The appeal concerned statutory annexation and anticipated breach. The Court of Appeal decided the breach issue and considered it unnecessary to determine the section 78(1) issue.

The Court of Appeal allowed the appeal on the breach of covenant issue and ordered the declaration sought by the Trustees on that issue. The section 78(1) issue was left undecided.

1. The covenant had to be construed as a whole. Its structure showed restrictions directed to uses, occupations and activities taking place on the burdened land. It did not expressly prohibit either the construction or operation of a school.
2. A covenant in such terms could apply to nuisance or annoyance caused by activities on the burdened land, including effects such as fumes, smell or noise spreading beyond its boundaries. A covenant could also expressly regulate traffic or increased traffic, but this covenant was not directed to third-party traffic movements on the public highway.
3. The complaints concerned lawful use of nearby roads by parents and other members of the public, causing possible parking, obstruction, congestion and noise. Those activities did not take place on the burdened land and were outside the Foundation’s effective control. Their connection with the proposed school was insufficient to bring them within the covenant.
4. The Court accepted that the anticipated traffic problems might amount to nuisance or annoyance in the ordinary sense. That factual conclusion did not resolve the separate question of construction: the nuisance or annoyance contemplated by this covenant had to arise from a prohibited activity on the burdened land.
5. Tod-Heatly v Benham was distinguishable. There, the activity giving rise to the apprehended consequences—operating a hospital receiving people with infectious or contagious diseases—took place on the burdened land. The present apprehension concerned traffic on the public highway, not the school activity itself.

• Court of Appeal (Civil Division): allowed the appeal on the breach point and granted the declaration sought. The statutory annexation issue was not determined.
• High Court of Justice, Chancery Division, Birmingham District Registry: HHJ Simon Barker QC dismissed the claims for declarations that the covenants were unenforceable and that the proposed development and school operation would not breach them.