UK: Trustees Of The Coventry School Foundation v Whitehouse & Ors [2012] EWHC 2351 (Ch) - Restrictive Covenants

Last Updated: 28 May 2013
Article by Emma Humphreys

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Emma Humphreys
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.