Summary
The court found that the claimants' plans to build a school on their land would be in breach of a restrictive covenant since, taken in the round, the traffic issues of noise, parking and obstruction, and congestion resulting from the operation of the school would or might be or grow to be a nuisance or annoyance to the covenantees who owned properties nearby.
Facts
The claimant trustees had acquired a parcel of unregistered freehold land from the trustees of Sir Thomas White's Charity (STWC) by a conveyance in 1931. The conveyance of the land imposed a restrictive covenant on the claimant trustees' land for the benefit of land retained by STWC, which was registered against the land as a Class D(ii) land charge. The covenant included a restriction against the erection of any building for "any purpose which shall or may be or grow to be in any way a nuisance damage annoyance or disturbance to the Vendors and their successors in title...or which may tend to depreciate or lessen the value of the Vendors adjoining or adjacent property..."
In 2010, the claimant trustees obtained planning permission to develop part of the land (presently used as playing fields) into a school with associated parking and an access road. Having investigated the land which was originally intended to benefit from the covenant (which was subsequently sold by STWC), the trustees sent a circular letter to the owners of 1200 nearby houses. This letter explained the existence of the covenant and counsel's advice that it was unenforceable "because no person or persons has the benefit of the Covenant and/or because the development of the Site will not constitute a breach of the Restriction".
The letter also notified the owners of the trustees' decision to seek declarations under section 84(2) of the Law of Property Act 1925 as a matter of prudence and stated that the owners would be made defendants to the proceedings unless they confirmed consent to the development. Since no unanimous consent was given – and there were a number of objections – proceedings were issued by the trustees against some of the objectors (as representative defendants of the covenantees).
For the purpose of the declarations sought under section 84(2), the trustees submitted that the restrictive covenant was unenforceable on the basis that the "adjoining or adjacent" land retained by STWC was not easily ascertainable or, if the covenant remained enforceable, that the development would not constitute a breach of it.
Decision – enforceability
It was common ground that the benefit of the covenant could only run by annexation and the judge noted from the case-law in this field that the ability to ascertain easily the land enjoying the benefit of the covenant remained an important issue. Since the 1931 conveyance referred to the vendors having "adjoining or adjacent property" and attached a plan showing the relevant land, he held that the land intended to benefit from the covenant was easily ascertainable from this document.
In relation to the trustees' submission that there was some uncertainty from the conveyance as to the boundaries of the benefiting land, he felt that the investigations made with STWC and the City Archives Department by the trustees in order to ascertain this information was a "short, clear and well marked" trail, with results which were "clear and free from uncertainty and ambiguity". Although it was not easy to ascertain whether there was also other land retained by STWC in 1931 which was intended to enjoy the benefit of the covenant, the judge felt that this should not deprive the land which could easily be ascertained from the intended benefit of the covenant.
Decision – breach of covenant
Having found that the covenant remained enforceable by most of the defendants, the judge examined whether the development would breach the restrictions in the 1931 conveyance.
The defendants' submission that the process of erecting the school – or any other substantial building – would be noisy and/or a nuisance, damage, annoyance or disturbance was rejected as "hopeless"; the judge agreed with the claimant trustees that only certain types of building were prohibited by the covenant and that the relevant test was whether the use of the building was regarded as objectionable, rather than the process of erection itself. On the issue of the defendants' objections based on the use of the land as a school being a "noisy...pursuit or occupation", the judge considered it unlikely that the parties to the conveyance intended to prohibit a school on this basis and pointed out that the defendants already experienced noise from nearby schools.
Turning to whether the proposed use would tend to "diminish property values", the judge as accepted as having "considerable force" the trustees' submissions that: (a) the language of this part of the covenant was intended to benefit only STWC as "the Vendors" since – unlike elsewhere - there was no reference to "successors in title"; and (b) the covenant was designed to protect the land as a whole, rather than individual parts of it, since STWC had probably always intended to sell the land in one lot for development. The judge noted that, even if he was wrong on these points, the evidence did not indicate that any property value would be affected by more than the RICS' acceptable margin of 10% for differences of opinion on valuation.
The defendants also contended that the use of the land as a school would constitute an annoyance, as well as causing nuisance and damage, in breach of the covenant. In reviewing the relevant case-law, the judge noted that the distinction between "nuisance" and "annoyance" appeared to depend upon whether the problem affected the senses or intellect respectively. He stated: "In either case, the impact is to be judged by reference to the sensible person, whose qualities include a reasonable measure of robustness and common sense."
The judge did not feel that there was any evidential basis for finding that there would be nuisance or damage arising from: (i) the architectural design of the proposed development, (ii) the potential overlooking of the defendant covenantees' properties as a result of the development, (iii) the loss of covenantees' views over the playing fields, or (iv) the potential damage to wildlife.
The judge then proceeded to examine the potential nuisance or annoyance caused by traffic attending the school. The defendants had referred to 35 letters from residents concerned about traffic congestion and the judge described these as "not necessarily of no evidential weight whatsoever". From his site inspection, he had also noticed a number of banners in the nearby properties objecting to the claimants' proposed development and he accepted that any covenantee finding their driveway blocked by a parent collecting a child would not be indifferent to the problem and would reasonably consider it to be somewhere between an irritation and annoyance. The judge therefore concluded that there was very strong opposition to the development and concerns amongst covenantees about the impact of additional traffic at drop off and collection times.
In cross-examination, the evidence of a noise expert was that the increase in noise resulting from the likely level of additional vehicles from the school might be around 50% above an already noisy threshold. On the issue of traffic and parking management, the judge noted that the evidence – including photographic and DVD evidence from a nearby school – showed that parents tended to park obstructively or illegally in practice. He therefore preferred the evidence of the defendants' expert that the proposed access point and arrangements for drop off and collection of pupils would not avoid traffic congestion in the locality affecting covenantees wishing to access the relevant roads at school drop off and collection times. He also agreed that the obstruction of covenantees' driveways was a "realistic likelihood".
The judge rejected the trustees' submissions that annoyance at obstructive parking was a sensibility not designed to be protected by the covenant and that the risk of obstruction on around 400 occasions for up to half an hour during the course of a year was submitted as a "trivial fear". He therefore held that – on the balance of probabilities - the traffic issues of noise, parking and obstruction, and congestion resulting from the operation of the school would or might be or grow to be a nuisance or annoyance in breach of the covenant.
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