England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(HHJ BRUNNING)

		Royal Courts of Justice Strand London, WC2
		4 July 2005

1. LORD JUSTICE CHADWICK: This is an appeal from an order made on 16 July 2004 by HHJ Brunning, sitting at Leicester County Court in proceedings brought by Mr Richard Hughes and Miss Carole Woods against Mr Nigel Riley and his wife Mrs Ann Riley. Mr Hughes and Miss Woods (to whom I will refer to as "the claimants") own and occupy a property at 1B High Street, Silverstone in Northamptonshire. Mr and Mrs Riley own and occupy premises adjoining the claimant's property. The Riley's property includes a building known as Shop and Post Office fronting onto High Street, Silverstone, and a dwelling known as No 5, High Street, Silverstone.
2. The claimants are entitled to the benefit of covenants restricting the use of the Rileys' property. The covenants, which were imposed by transfers dated 25 November 1994, are in these terms:

"Not to use the property or any part thereof for any purpose which may be or become a nuisance or annoyance to the Transferors or their successors in title to the retained land and the land edged red on the said plan or any part thereof or which tends to diminish or lessen the value of the retained land or any building or erected thereon or any part thereof."

3. The claimants are the successors in title of part of the land, referred to in that covenant as the retained land, for which the benefit of those covenants were taken. There is one covenant in the transfer of the Shop and Post Office; the other covenant, which is in the same terms, is in the transfer of 5 High Street. The two transfers were made on the same day. It is only the covenant imposed in the transfer of the Shop and Post Office that has featured in argument.
4. The claimants acquired 1B High Street in July 2000. 1B High Street forms part of a small residential development at the rear of the properties known as 3 and 5 High Street and the Shop and Post Office. The whole of the development land had been in the ownership of Mr and Mrs Townsend. They acquired planning permission for its development; but they died before the development was completed. 1B High Street is a converted barn -- that is to say a barn converted to residential use -- which lies on the southern boundary of the whole plot. It is aligned from east to west and so is at right angles to the High Street and the three properties fronting the High Street. Behind those three properties -- and in the angle formed by 1B -- there is a yard. Access to the yard is gained from the High Street through an entrance at the northern end of No 3.
5. These proceedings were commenced in 2003. The claim form was endorsed with a claim for breach of the restrictive covenants. The relief sought was an injunction and damages. Particulars of claim were amended on 15 July 2003 to include a claim for trespass and for nuisance at common law, and to add a claim for exemplary and aggravated damages. The claim for trespass and the claim for exemplary and aggravated damages are not pursued in this appeal.
6. The matters relied upon as constituting a breach of the covenant which I have set out are pleaded at paragraph 8 of the amended particulars of claim. It is pertinent to have in mind what it was that the claimants were asserting constituted a breach. The paragraph was in these terms:

"Since in or about September 2001 the Defendants have carried on use of the Property in breach of their obligations under the Covenant:

(a) . . . in or about September 2001, the Defendants commenced work at the Property to convert the store immediately adjacent to the Claimants' premises into an area accessed internally from, and incorporated within, the Defendants' retail shop premises;

(b) In or about February 2002 the Defendants inserted two clear glazed and opening roof windows in the Property in a position overlooking the private amenity area of the Claimants' property. Both of these windows infringed upon the privacy of the private amenity area of the Property. The windows remain an infringement.

(c) On or about 7 November 2002 the Defendants commenced further building work at the Property to relocate the sorting office (5 High Street) to the New Structure immediately adjacent to the gable end wall of the Claimants' property and have affixed racking to the said wall.

(d) Further still, in or about February 2003, the defendants erected fences and gates at the rear of the Property with a view to leaving the Post Office as a separate business unit independent of their residential premises at (5 High Street) (formerly the Post Office was ancillary to the residential use). The effect of the fences and gates is that the employees of the Post Office now use a footpath immediately adjacent to Claimants' property causing increased noise and lack of privacy and conflicts with the claimants' own and only access gate and is in breach of the Claimants' right of access to the Claimants' property.

(e) Furthermore, the Defendants having been actively attempting to sell the Post Office as an independent commercial business unit in breach of Condition 6 of the 1991 planning permission (rather than, as already stated, using it as ancillary to the Post Office business) the obvious and inevitable effect will be a change of ownership of the Property into the hands of persons without any, or a significant lack of, interest in complying with the obligations of the Covenant as neighbours."

7. It would be difficult, perhaps, to appreciate from those allegations that this action, as it has developed, is really about noise. What is said, in summary, is this. The conversion of a former lean-to structure at the back of the Shop and Post Office -- and which abutted the western gable end of the barn -- into an integral part of the Post Office and the use of that space as a sorting room or sorting office has caused noise which penetrates through the western gable end of the barn and disturbs and annoys the claimants. Second, the use of that space as a sorting office has had the result that access to it is gained from the yard over a pathway which runs immediately to the north and west of the claimants' garage and is therefore close to their residential barn. Third, that the Post Office and Shop business results in deliveries taking place in the yard by vans which make an unacceptable level of noise in the early hours of the morning. That complaint can be found in the particulars of nuisance at paragraph 10 of the particulars of claim. In this context, the New Structure is the converted lean-to now used as a sorting office. It is said:

(a) The New Structure area is in use as a sorting office six days each week, from 6.45am each day. The Claimants are awoken by the noise of newspapers being delivered, Post Office employees reporting for work, the arrival and departure of delivery vans, the slamming of doors to vehicles and the fire door to the Post Office premises recently located immediately adjacent to the end gable wall of the Claimants' property, and the sorting of mail into pigeon holes affixed to that wall. The Claimants have suffered stress, inconvenience and loss of enjoyment. The Second Claimant has to date been off work for six months as a result of the Defendants' actions. The claimants have lost rental income.

(b) Generally there is increased noise from very early in the morning as vans arrive, motors idle for a moment, doors are opened, persons are heard using the pathway and accessing the sorting office from a single door (where the double door used to be when it was a storage area). All of this occurs as a matter of a metre or two from the Claimants' master bedroom. More recently, after an approach to the Royal Mail, the deliveries have been postponed until 6.45am.

(c) The noise of use of the sorting office is transmitted easily through the Claimants' gable end wall because of the keying in of the various structures against and into that wall.

(d) All of the incidents are sufficient to awake a normal person from sleep six days a week.

(e) Furthermore, there is no reason why the delivery of papers and mail could not be undertaken on the parking area beside the Post Office a sufficient distance away from the Claimants' property. Such used to be the case when the sorting office was part of No 5 High Street, prior to the works complained of which have encompassed the relocation of the sorting office."

8. The claim came before HHJ Brunning for trial over four days in July 2004. He took the opportunity to view the property. He described the background to the dispute at paragraphs 4 to 8 of his judgment. He observed that Nos 3, 5 and the Post Office (including the area behind) had for many years been owned by Mr Anthony Townsend and his wife. The Townsends -- in particular Mrs Townsend, who was a member of the local Council -- became aware that properties of this kind had development potential. The Townsends made a planning application in 1988. They made a further application in 1994. That led to the permission for the conversion of the lean-to shed immediately to the east of the Shop and Post Office and between the Shop, the Post Office and the barn. The judge pointed out that the Shop and Post Office premises had been used by the Townsends as a Post Office and village store for many years; that, in 1994, the Townsends set about selling part of that property; and that, in particular, they sold No 5 High Street and the Shop and Post Office next door to it to the Rileys.
9. Sadly, the Townsends died in 1995 and 1996. The land behind the buildings fronting the High Street was acquired by a development company. That company carried out the development and the developed properties, including the barn, were sold off. The barn was acquired by the claimants in 2000.
10. Disputes soon broke out between the claimants and the Rileys. Those disputes are described by the judge in paragraphs 13 and 15 of his judgment. Soon after the claimants acquired their property, the Rileys obtained planning permission to carry out work to the Post Office, and to detach the ground floor Post Office from No 5 so that No 5 became living accommodation for themselves and their child (or, now, children), and the Post Office was pushed further to the south, that is to say towards the right-hand end of the three properties as seen from the road.
11. At paragraph 15 the judge said this:

"As a result . . . of the planning permission and [the Rileys'] wish to convert the store into an integral part of the Post Office, trouble broke out. When drilling started to reinforce the floor of the store relations between the Rileys and Mr Hughes and Miss Woods went downhill. The store was altered despite protests by the claimants. A new Post Office counter was created linked by a secure door to the store. The Post Office itself entered into a shop smaller than the area previously used and the property of number 5, the living accommodation, was physically separated from the Post Office cum shop."

Since that work was carried out, the position had been and now is that the shop leads into the Post Office with the Post Office counter; and the sorting office -- being the old lean-to shed -- is to the rear or east of that counter. The sorting office abuts onto the wall of the barn conversion.

12. The claim for trespass was based on the work that had been done to the western wall of the barn, where the converted lean-to abutted it. The judge rejected that claim. As to the principal complaint, he found that the work complained of was done in 1995 with the approval of Mr Townsend. There were some relatively minor incursions into the wall for the purposes of fixing bolts for joists. The judge took the view that that was something that could be done to a wall which, as he thought, had become a party wall. The claim in trespass is not pursued.
13. At paragraph 44 of his judgment the judge turned to consider whether there had been a breach of covenant. He reminded himself of the observations of Bowen LJ in Tod-Heatley v Benham (1888) 40 CH 80, and of Mcgarry J in Hampstead & Suburban Properties v Diomedus [1969] 1 Ch 258. In particular he reminded himself of the passage, in the second of those two authorities, where Mcgarry J observed that "nuisance and annoyance will continue to be regarded by the court according to robust and commonsense standards".
14. The judge then observed that the business run by the Rileys was a Post Office and general shop; that that had been much affected in recent years by supermarkets in nearby Towcester and Brackley; and that, like all village stores, was doubtless struggling to survive. He explained the way in which the Shop and Post Office were operated. There was the sorting of mail, the delivery of mail and the sale of newspapers. Mr Riley delivered about 150 papers each morning on a paper round. Another 40 to 50 newspapers were sold through the shop each day. Bread was sold; but there is no complaint about the bread delivery because that takes place from the High Street in the morning.
15. The judge described four distinct activities which caused noise problems. The first was the arrival of a van with newspapers and magazines at about a quarter past four in the morning. The van entered the yard which lay to the rear of the High Street properties and which gave access to 1B, the claimants' barn. It parked next to Mr Riley's own vehicle. The van driver unloaded the bundles of newspapers into Mr Riley's vehicle. As the judge found, that all took about two to two and a half minutes. In the meantime, it seems that on many occasions the van driver -- as seems to be the custom of drivers of diesel vans -- left the engine running. That, of course, produced a noise which (no doubt) reverberated off the buildings around the courtyard.
16. There was then a second delivery, also of newspapers and magazines but by a different wholesaler, at about 5 o'clock. Between 5 and 6 o'clock in the morning, Mr Riley came out of his house, walked across to his van, collected the papers from it and took them back into his property in order to sort. He then went out again with those papers that he was going to deliver. That, of course, involved starting his car and reversing it into the common area and driving away.
17. The fourth activity which caused noise was the arrival of the Post Office delivery van at about 6.45 in the morning. That came from the High Street through the yard to an area behind No 5 High Street. The postman then opened the gate leading to the passageway which ran down the side of No 1B's garage to the door which gave access to the new sorting office. The judge observed that, depending on the volume of mail, there might be four or five journeys by the postman down that path in order to deliver all the bags to the sorting office. Sometimes there would be a trolley used for that purpose.
18. The judge then considered what else was going on at that time of the morning. He said this at paragraph 61:

"There are other movements. At about 6.45 Mr Rhone who occupies the property at 1A High Street [which is another of the development properties] leaves for work. His wife presumably does so as well to get to her own work. Mr Hughes himself leaves around seven."

The problem, as the judge indicated in paragraph 62, was that the noise created by those movements had affected Miss Woods. She was woken by it and she found it a nuisance.

19. As I have said, the judge took the opportunity to view the premises and the yard and came to the conclusion that what was being done was a reasonable use of the Rileys' property as a Shop and Post Office in a small village. He said this at paragraphs 77 to 79:

"It is in my judgment a use of premises which is reasonable. It is part and parcel of that to be expected from such a shop within a village in the early morning.

It is said that deliveries could be made in the street. I accept the evidence of the Rileys that for security reasons the deliveries need to be made at the back. I am satisfied that the decision Mr Riley made to transfer sorting the post from his own house to the store was made and was necessarily made at the instigation of the Environmental Health Officer. Had Mr Riley not effected the transfer it would have led to Health and Safety problems. It was not in any sense therefore done with deliberation to affect the Hughes'.

The use of the store is a use of the premises which, in my judgment, is a reasonable one. It is adjacent to the Post Office. It is not a use that I judge to be in breach of covenant or to be a tortious use. The coming[s] and goings that occur are ones that, it seems to me, those living in this area can reasonably be expected to accept as Mr and Mrs Riley are reasonably entitled to carry them out."

So the judge dismissed the claim for breach of covenant and the breach of common law nuisance.

20. The covenant includes the following elements. First, there is a covenant not to use "the property or any part thereof". So the covenant is not confined to use on the whole of the property. It can be broken by use of some part of the property. In the present context, the relevant question is whether the use of the part now used as a sorting office gave rise to breach of covenant.
21. Second, the use restricted is use for any purpose which may be or become a nuisance or annoyance. But that cannot have been intended to prevent the use of the Shop and Post Office as a shop and Post Office. The property was sold as a Shop and Post Office. That was the use that had been carried on there for many years. The parties cannot have intended that the covenant in the transfer should be construed in such a way as to derogate from the grant. But that gives rise to two questions. The first is whether use as a sorting office is within the contemplated use as a Shop and Post Office. The second is whether the use of part of the property not previously used as a sorting office gives rise to a breach of the covenant.
22. Third, what is restricted is use for a purpose which is or becomes a nuisance or annoyance to the transfers or their successors in title. We were reminded of the observations of Cotton LJ in Tod-Heatley v Benham at page 93. Cotton LJ explained that annoyance was a word with no definite legal meaning; but that what one had to ask was whether what was being done amounted to interference with the pleasurable enjoyment of the neighbouring property. Importantly in this case, however, the activity has to be something connected with the purpose for which the property is being used.
23. Fourth, the covenant includes, as a separate restriction, a restriction on the use of the property for a purpose which tends to diminish or lessen the value of the retained land, or any building thereon.
24. There are then three matters to consider. First, to ask whether what is being done in the yard in connection with the use as a Shop or Post Office constitutes a breach of the covenant -- a fortiori, when what is being done in the yard is not being done by Mr Riley or Mrs Riley, but is being done by the van driver. Second, to ask whether what is being done in the sorting office amounts to a breach of the covenant. On the evidence in this case, the activities within the sorting office do not cause sufficient noise penetration to amount to a breach of the covenant. Third, to ask whether the access over the pathway which connects the new sorting office to the yard is itself a breach of the covenant. The new pathway connecting the sorting office to the yard is within the property transferred in 1994, although the yard itself is not.
25. The notice of appeal, as elaborated in argument, relies on three grounds. First, it is said that the judge was wrong in law in failing to appreciate that a use which resulted in a diminution in value of the claimants' property could amount to a breach of covenant. Alternatively, that he failed to consider whether there was a potential diminution in value. That ground can, I think, be dealt with shortly. The judge heard the evidence of experts instructed on each side. The expert instructed by the Rileys, Mr Haselwood FRICS, addressed the question whether, comparing the value of the claimants' property as it is now, affected by the way in which the defendants currently use their property as a whole with the value which the property would have in the present market on the assumption that the defendants' use of their property had remained as it was prior to 2001, had there been a diminution in market value? He came to the conclusion that on that basis there had been no diminution in market value applying that comparison. In other words, his evidence was that the conversion of the former lean-to structure into a sorting office had not led to the value of the claimants' property being less than it was before.
26. The claimants had instructed Mr Scott FRICS. He came to the view that the value of 1B High Street had fallen by about £60,000. But, in reaching that view, he was influenced by the fact that "as he thought" a building which had previously been a detached property had become a semi-detached property as a result of the works of conversion to the lean-to shed. He was also concerned that there were serious noise problems associated with the deliveries of the newspapers. But he did not ask himself whether the noise associated with the delivery of the newspapers had been present before the works of conversion to the sorting office. In that context, it is important to keep in mind the allegation in paragraph 10(e) of the particulars, that the delivery of papers could be undertaken on the parking area beside the Post Office -- as used to be the case when the sorting office was part of No 5 High Street prior to the works complained. It appears, therefore, that the newspapers had been delivered in much the same way both before and after the conversion of the sorting office. What had changed was the method of delivering the mail. So the judge could place no reliance on the evidence of Mr Scott where it differed from that of Mr Haselwood.
27. Secondly, the criticism is made that the judge failed to consider what steps could be taken by the Rileys to alleviate the nuisance and annoyance of which the claimants complained. But, in fact, the Rileys had taken steps to alleviate the nuisance of which complaint was made. Whether through their activity -- or through the claimants' protest to the Post Office -- the deliveries by the Post Office were made later than they were previously. Secondly, the pathway leading from the yard to the sorting office which had been gravel was now paved down its centre with paving stones. That lessened the noise associated with use of the pathway.
28. The judge did consider, in terms, whether or not deliveries could be made to the front of the property rather than to the back over the yard. As he said -- in the passage to which I have referred -- the requirements of security were such that it was necessary to deliver at the back rather than leaving goods and newspapers in the High Street.
29. We were referred to the speech of Lord Millett in Southwark London Borough Council v Mills [2001] 1 AC 1 at page 20, D-E. Lord Millett pointed out there that it was not enough for a landowner to act reasonably in his own interest. He must be considerate of the interest of his neighbour. The governing principle is good neighbourliness, and this involves reciprocity. The landlord or landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him. There has, therefore, to be a balance, on both sides, between the use and enjoyment of one's own land and the use and enjoyment by one's neighbour of his land.
30. In the circumstances of this case, there has to be a balance between the claimants' desire to use the converted barn as a residence, and the need -- and, no doubt, the wish -- of the Rileys to use the Shop and Post Office to serve the requirements of the community. It is inevitable that a Village Shop and Post Office selling newspapers and distributing mail will need to have early morning deliveries. Newspapers need to be in the Village Shop at a time when those who buy newspapers wish to buy them. Mail needs to be in the sorting office at a time which allows it to be sorted for delivery to the recipients at the beginning of the day. The judge clearly thought that the right balance had been achieved in this case, when he said in the passage that I have read at paragraph 77:

"[The use] is part and parcel of that to be expected of a shop of this kind within a village in the early morning."

31. The third ground of appeal is that the judge gave too little weight to the expert evidence of the single joint expert instructed in relation to noise. That is the ground which has caused me the most concern. It seems obvious that a diesel van left with its engine running for two or three minutes at 4.30am in an enclosed courtyard is likely to cause annoyance. But the claimants face the difficulty that delivery of newspapers from one van to another takes place in the yard; and the yard is not part of the property bound by the covenant to which I have referred. Indeed, on the pleadings, the yard is not said to be property owned by the Rileys; although it seems to be common ground that they did, in fact, acquire it in 1998.
32. I have referred to the paragraph (paragraph 10(e)) in the pleaded particulars from which it appears that the delivery at the far side of the yard is what the claimants accept could properly be taking place. In the course of the argument, it was put to the claimants' counsel that reliance on the Rileys' ownership of the yard was inconsistent, first, with that pleaded allegation; second, with the skeleton argument prepared for this appeal; and, third, with the grounds of appeal. There is no hint in any of those documents that it is alleged that the defendants commit common law nuisance by allowing the delivery van to make noise in the yard.
33. Be that as it may, the judge's view was that the noise from the van was the sort of short and intermittent noise that one must expect in a village in which deliveries are being made at an early hour to the village Shop and Post Office. He addressed the expert evidence at paragraph 74. After referring to the data provided by the expert, Mr Kettlewell, in his report, the judge said this:

"The extent to which these measurements are of any assistance to me is limited. It helps to see the level at which noise is measured. It is also interesting that throughout the period there is what is called background noise which is within 15 per cent, at most 20 per cent, of the level caused by the van arriving."

34. When that passage was explored with counsel in this court, it became clear that the judge may have misunderstood the figures. He failed to appreciate that what appeared to be 15 or 20 per cent increase in the relevant figure, in fact reflected much greater than 15 to 20 per cent increase in noise level. That was because of the exponential feature of the data. But what the judge clearly did appreciate was the noise a diesel van left in this yard with its engine running for two or three minutes would be likely to make. After all, the noise of a diesel engine in a delivery van is a matter of general experience. The judge clearly thought that that was the sort of noise which the claimants could reasonably be expected to tolerate. It is a noise which, of course, could be reduced if the engine was switched off. But it does not lie within Mr Riley's power to ensure that the van driver always switches off his engine. The only complaint that can be made of Mr Riley's conduct is that he arranges for newspapers to be delivered from one vehicle to another in the yard that he owns. But that complaint was not being made in the pleadings. The judge could not be expected to rule upon a complaint which was not made. To do so he would have had to consider in much more detail whether it really was a viable option to leave the newspapers outside the door fronting onto the street in this village in the early hours of the morning.
35. My view, the suggestion that the judge gave too little significance to that part of the evidence cannot be sustained. Insofar as he was concerned with the complaint of noise from the Post Office van at 6.45 am, he took into account, first, that that was at a time when there was considerable other activity in the area. Mr Rhone and his wife were going to work at that time. Indeed that was the time by which one would expect the mail to be delivered. It could hardly be delivered any later. For those reasons, I am not persuaded that the judge was wrong either (i) to find that there had been no breach of the covenant in this case, or (ii) insofar as the activities were taking place on land which was not covered by the covenant, to find that there had been no common law nuisance committed by the Rileys in this case.
36. I would dismiss this appeal.
37. LORD JUSTICE RIX: I agree.
38. LORD JUSTICE CARNWATH: I also agree. I would just add two points. First, I have some sympathy for the claimants' reaction to the move of the sorting room to a position directly next to their property apparently without any consultation with them. It may have been necessitated by the Environmental Health Officer's objections to the previous position, but nonetheless one can understand why they thought it would cause serious disturbance to them.
39. Further, had there been any objective evidence that the sorting office use as such was likely to cause significant disturbance, I would have been inclined to find that this was a breach of the covenant. A part of the property would be being used for a distinct purpose, viz the sorting office, for which it had not been used at the time of the transfer and which was capable of giving rise to nuisance or annoyance. However, as my Lord has said, the evidence in particular of Mr Kettlewell, the joint expert, did not support the case that the sorting office activities as such caused any such significant disturbance. Certainly the judge was entitled to find that they did not.
40. The second point relates to the newspaper van. Like my Lord, I am concerned that the arrival of a van at 4.30 in the morning is capable of causing serious disturbance. I do not see how it could be brought within this covenant as it is not on land which is covered by the covenant. But the ordinary law of nuisance is relevant, and could be infringed if such a use were not carefully controlled. For the reasons my Lord has given, I do not think that the judge's conclusions on this can be faulted, particularly having regard to the way the matter was pleaded. But I would expect the Environmental Health Office of the Local Authority to be astute to ensure that such a use is carefully controlled in the future.

Order: appeal dismissed. Appellants to pay costs of appeal, summarily assessed at £11,500. Permission to appeal refused.