We are all familiar with the covenants in leases and on titles not to do anything which might be or become a nuisance or annoyance to others. Those in the real estate industry often see them as fairly innocuous and of limited impact. However, a recent court of appeal case which considered the scope of such covenants (Anthony Stephen Davis -v- Richard Dennis and Others [(2009)] EWCA Civ 1081) shows that anyone faced with having to comply with such covenants ignore them at their own risk.

Mr Davies was the owner of a residential plot on an estate built on an island in the middle of the River Thames. The plot was subject to a covenant "not to do or suffer to be done on the Plot ... anything of whatsoever nature which may be or become a nuisance or annoyance to owners or occupiers for the time being of the estate or the neighbourhood". This covenant was expressed to be for the benefit of the other home owners on the estate.

Mr Davies had obtained planning consent for a three-storey extension to his house. Once he started work, his neighbour Mr Dennis and other homeowners on the estate objected to the extension on the basis that it would impede their views of the river and as such was in breach of the covenant not to cause nuisance or annoyance.

The Court of Appeal agreed with Mr Dennis and held that the covenant was wide enough to extend to all activities carried out on Mr Davies' plot. This included building an extension which, when built, would be an annoyance. Mr Dennis and his co-claimants were granted an injunction preventing Mr Davies from building the extension.

Whether a particular building will actually constitute a nuisance or annoyance will depend on the facts in each case. The courts will consider whether reasonable people having regard to the ordinary use of the land in question would be annoyed or aggrieved by what is proposed. In this case the judge was of the opinion that the loss of view for some of the claimants was "significant". It is worth noting that views of the river were a particular feature of this estate and this may have been a factor in the judge's decision.

The lesson from this case is that anyone subject to a covenant of this type (as developer, investor or occupier) will need to bear in mind that it may be used by those wishing to object to a new development or extension. Conversely, it could (depending on the facts) be a useful tool for anyone who has the benefit of such a covenant and wishes to object to proposed building works, even those which have already been granted planning consent.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 13/11/2009.