England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		21 November 2008

1. Introduction

1. This is the trial of the Claimants' claim to enforce restrictive covenants to prevent the building of an extension to the Defendant's property. The parties live on Heron Island which is situated on the River Thames at Caversham just outside Reading. It was the site of a former mill complex. In 1987 it was re-developed as a housing development consisting of 47 units of 3 storey 3, and 4 bedroom properties. The development was carried out by Heron Homes Limited. A feature of the development was its closeness to the river and the views that each house was afforded of the Thames.
2. The Claimants are the owners of (respectively) Numbers 16, 17, 46, 22 and 21 Heron Island. The Defendant is their close neighbour at no 23 Heron Island. The location of the properties is shown on the plan attached to the Particulars of Claim.
3. Heron Homes Ltd ("Heron"), sold off the houses by a series of (materially) identical transfers between itself, the Management Company; - Peverel OM Ltd^[1] ("Peverel"); and the original purchasers. Subsequently Heron transferred the communal areas and the mooring facilities to Peverel; Peverel covenanted to manage and maintain those communal areas and mooring facilities; and the purchasers of the houses covenanted to reimburse Peverel the costs involved.
4. Every transfer on the Estate contained a series of restrictive and positive covenants set out in schedules to the transfers, some of the covenants being with the Vendor and Peverel alone, and some with the Vendor, Peverel, and with any current owners of plots on the Estate.
5. Thus by clause 4(a) in each transfer the purchaser:

'for himself and his successors in title and with intent to bind the Plot into whosoever hands the same may come covenants with the Vendor and the Management Company and also as a separate covenant with every other person who is now the owner of any part of the Estate for the benefit of the remainder of the Estate including any part thereof for the time being unsold to observe and perform the restrictive and other covenant and stipulations set out in the Third Schedule hereto'

6. The Third Schedule contained an extensive series of restrictive covenants, including the following:

1. Not to erect on the Plot or any part thereof any building whether of a permanent or temporary nature except such as shall be in accordance with plans and elevations which shall have been approved in writing by the Management Company.("the permission covenant")

2. Not to use the Dwellinghouse for any purpose other than that of a private residence or ancillary thereto and not to carry on from the Plot or any part or parts thereof any trade business or manufacture whatsoever nor to do or suffer to be done on the Plot or any part thereof anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood' ("the nuisance and annoyance covenant")

7. Mr Davies proposes to erect a 3 storey side extension to his property at No 23. Planning permission for the extension was initially refused but subsequently granted on 19^th October 2005 on appeal. Work on the extension commenced in May 2007 but ceased pending the outcome of these proceedings.
8. The Claimants contend that the extension has not been approved by Peverel and that it will constitute a nuisance or annoyance to the owners or occupiers of the estate. They contend that if constructed the extension will wholly or partially obscure attractive views of the Thames which they currently enjoy and/or diminish the value of their properties.
9. Mr Davies denies that the construction of the extension breaches the restrictive covenants. Until the third day of the trial he contended that the extension was not a building within the meaning of the covenant and that no permission was accordingly necessary. He abandoned that submission on the third day of the trial as he wished to submit that the extension was a building for the purpose of the true construction of the nuisance and annoyance covenant.
10. However he contends that permission was granted in an e-mail sent on 15^th May 2007. He further contends that there is no breach of the nuisance and annoyance covenant. He contends that such covenants are directed to activities on the plot or interferences with occupation and user of the plot. In any event any interference is either non-existent or far too trivial to amount to a breach of covenant.

2. Representation

11. The Claimants were represented by Martin Hutchings instructed by IBB, Solicitors of Capital Court, 30 Windsor Street, Uxbridge UB8 1AB. Mr Davies was represented by Tom Weekes instructed by Pitmans of The Anchorage, 34 Bridge Street, Reading RG1 2LU.
12. Both Counsel prepared full and very clear skeleton arguments in a by no means straightforward case. I am grateful to them.

3. Evidence

13. There was little dispute as to the primary facts. I heard evidence from Mr Dennis, Mr Giles, Mr Cameron and Mrs Yentis on behalf of the Claimants and Mr Davies on his own behalf. All were honest witnesses doing their best to assist me. I read a witness statement from Mr Tilsley pursuant to the Civil Evidence Act
14. In addition there was expert evidence from planning experts Michael Derbyshire on behalf of the Claimants and James Fennell on behalf of Mr Davies. I read a valuation report from Mark Hepple which turned out to be uncontroversial.
15. On the first day of the trial at the request of the Claimants and without serious objection from Mr Davies I attended the site where I saw for myself each of the Claimants' properties and in particular the current views from the various windows and balconies of Numbers 16, 17 and 46 Heron Island.

4. The Facts

4.1 The Development

16. The Heron Island Estate is a relatively modern development comprising 47 3 to 4 storey bedroom properties situated on the River Thames at Caversham just outside Reading. It is described by Mr Derbyshire as relatively high density. A particular feature of the development was its closeness to the river and the views that each house was afforded of the Thames. The island was described in the advertising brochures at the time as a unique development 'lapped by the waters of the Thames on three sides' and, as providing purchasers with a 'waterside lifestyle'. The open river views were a feature of the development and many houses were also given mooring rights. Nearly every house has a waterside frontage. Views of the River are gained by deliberately designed gaps between the houses and the houses have been carefully orientated in order to take advantage of the river view.

4.2 The Properties

17. There is attached to the Particulars of Claim a helpful plan showing the layout of the Estate. It also shows where Numbers 16, 17, 21, 22, 23 and 46 are located.
18. Mr and Mrs Dennis bought Number 16 Heron Island in March 1996. According to Mr Dennis it has river views from all its rooms. In particular it has a vista of the Thames from the living room and balcony through the opening adjacent to No 23. He has arranged his living room furniture to view the Thames through he window leading to the balcony. There are helpful photographs showing the view from the living room and balcony.
19. Mr and Mrs Cameron bought Number 17 Heron Island in December 2006. According to Mr Cameron a major factor was that they wanted a waterside lifestyle. They are keen amateur canoeists. Amongst other things they appreciated the constant view of the Thames from the front of the house. There are photographs showing the view of the Thames from the front of No 17 and from various rooms within it.
20. Mr and Mrs Giles purchased Number 46 Heron Island in January 2003. Their house does not have direct water frontage but due to the design still has views of the water from both the front and the back of the house. There is a photograph showing the view from the bay window at the front of the house.
21. Mrs Yentis purchased 21 Heron Island in March 1988. She enjoys a view up and down the Thames from her front window and enjoys bird watching from her front window.
22. Mr and Mrs Tilsley purchased 22 Heron Island in 1987. They enjoy extensive river and garden views from their property. They were attracted to the Island because of its close proximity to the River Thames and the design that afforded the majority of the houses views of the water.
23. Mr Davies purchased 23 Heron Island in November 1993. He has lived there since then with his partner Dionne Haynes and her 2 sons now aged 16 and 15. Number 23 is a semi detached property with a frontage to the northern bank of the Thames. As can be seen from the plan it currently comprises a garage, family room and hallway on the ground floor, a balcony, sitting room, dining area and kitchen on the first floor and 3 bedrooms on the second floor.

4.3 The covenants in the transfers

24. I have set out in the introduction the covenants that the Claimants contend that Mr Davies will break if the extension is constructed. As already noted Mr Davies accepts that he is bound by those covenants but contends that there will be no breach.
25. In the course of his opening Mr Hutchings drew to my attention the extensive nature of the covenants contained in the Transfers. He pointed out that the covenants in clause 4(a) were with the Vendor, the Management Company, and with the owners of any part of the estate; he pointed out the extensive nature of the covenants including covenants such as are more usually found in leases such as covenants to keep the house in good repair and to cultivate the garden and obligations to pay a Management Charge. There are in fact some 22 covenants – some positive and some negative regulating the use of the relevant property.

4.4 Other Developments.

26. Since the construction of the Heron Island Estate in the late 1980s the records at Reading Borough Council indicate that some 45 planning applications for alteration and extensions to dwellings have been submitted for approval. 43 have been granted and 2 have been refused. Some of these applications have related to the Claimants' properties although not all of the permitted developments have been carried out.
27. Number 16 has the benefit of a permission in 2001 for a single storey rear conversion; Number 17 benefits from planning permission for the alteration from a second garage to a river room and balcony extension. Number 21 has 6 separate planning permissions dating from 1998 to 2003. Not all of these have been carried out. Number 22 has the benefit of 2 permissions in 1988 and 1991 relating to a conservatory extension and the erection of a domestic lift shaft.
28. Whilst the Claimants acknowledge these permissions they make the point that their developments did not interfere with other members of the estate. In her witness statement Mrs Yentis specifically makes this point. Indeed she says she only extended her rear first floor balcony after discussing it with her neighbour at number 20 and after he confirmed that he had no objection. When he gave evidence Mr Dennis acknowledged that other developments were acceptable provided they did not constitute a "nuisance or annoyance" to adjoining properties.

4.5 The proposed extension.

29. The proposed extension is to the western side of Number 23. The layout can be seen in the plans prepared by Four Square Design Limited. It is a 3 storey extension. On the ground floor there is a study and utility room; on the first floor there is an extension to the sitting room and balcony and on the second floor there is an additional bedroom.
30. The extension measures 3.2 metres wide, 6.3 metres deep. It is 7.5 metres to the eaves and 9.5 metres to the ridge. It is set back some 5.4 metres. Its construction makes use of bricks and tiles that match the original build.
31. The foundations for the extension could clearly be seen at the view and in the photographs.

4.6 The Claimants' objections to the extension

Mr and Mrs Dennis

32. Mr and Mrs Dennis' principal objection is to the reduction to their view from their balcony, their living room and from 2 bedrooms on the second floor.
33. In his second report Mr Derbyshire exhibited (without objection) what was a report from 'CAD Solutions' who had been instructed to create an accurate three dimensional model of the side extension and produce a photomontage of key views. 3 photographs were taken from Number 16, two from different positions in the first floor balcony (C2 and C3) and one from the second floor bedroom (C4). The resulting photographs (143L, N and P) show the view of the river from these positions. There are a number of other equivalent photographs in Volume 3 (835 – 845). In addition I was able to see the view for myself at the view held on the first day of the trial. I found it of considerable assistance.
34. CAD Solutions have produced (143M, O and Q) photomontages showing the equivalent view after the construction of the extension. As can be seen from 143M and 143Q the view of the Thames from the left hand side of the balcony (C2) and the second floor bedroom is very significantly reduced.
35. In his witness statement Mr Dennis makes a number of points about the importance of the view to him. He says he was originally attracted to the house because of its river views from all rooms; he says the furniture in the lounge is positioned to view the Thames through the window leading to the outside balcony; he says that he frequently sits outside on the balcony watching the Thames. In his view the amenity of the river views will be greatly curtailed and the windows in front of the development will interfere with his privacy.
36. He also makes the point that he would visit the river edge adjacent to Number 23 less due to the intrusion of the extension.
37. A number of points were put to Mr Dennis in cross-examination. He was taken to the letter he wrote to the planning authority in March 2005 when he objected to the proposal. He adhered to the views he expressed in that letter. Thus he still believed that the development would generate additional traffic, was out of character and conflicted with previous planning decisions. It was pointed out to him that the planning inspector had considered and rejected many of his points when granting permission. He disagreed with the planning inspector and referred me to the decision of the local authority when granting permission.
38. It was suggested to him that he would soon get used to the new view. He made the point that he had lived in the house for 13 years having the view shown in the photographs. He regarded the extension as a considerable nuisance and annoyance.

Mr and Mrs Cameron

39. Mr and Mrs Cameron's principal objection is to the reduction of their view from their living room on the first floor, and from the main bedroom on the second floor. There are 3 views shown in the photomontage – a view from the front door (143V and W), a view from the first floor living room (143Z and Z(1)) and a view from the second floor bedroom (143X and Y). The windows from Number 17 do not face the river Thames and it may be that the camera was held outside the window to obtain the photographs.
40. The rear of the house faces the moorings but Mr Cameron says that they were attracted to the views of the Thames from the front of the house. He says he uses the view from the front of the house to assess the river conditions for canoeing. This will not be possible if the development proceeds. Mr Cameron believes that his enjoyment of the common parts will be restricted slightly if the development proceeds. In cross examination he made the point that this was virtually the only open area on the estate where people can meet. He did not agree with the planning inspector that the gap was not reduced to any material extent by the extension.

Mr and Mrs Giles

41. Mr and Mrs Giles' principal objection related to the reduction of the views out of the bay window on the first floor and (to a lesser extent) out of the main bedroom on the second floor. These are shown in the photomontages (143R, S, T and U). There was some debate during the evidence as to the effect of a sycamore tree that Mr Davies says he removed in March 2007. This sycamore only became apparent when Mr Davies removed some conifers in the mid 1990s. It had grown since then and was, according to Mr Davies some 20 foot high when he had it removed. None of the Claimants appear to have noticed this sycamore tree and made the point that it cannot have significantly reduced their view of the Thames. As Mr Giles pointed out "the density of any tree was never sufficient to remove our view of the water".
42. In cross examination it was suggested to Mr Giles that he would get used to the new view. He disagreed. In his view the overall vista, which he described as the combination of the tree with the playing field behind and the water past the trunk would be replaced by red brick. In his view it was a significant part of the view. It had been reduced.

Mrs Yentis

43. Mrs Yentis accepted that the view from her property was not affected by the development. She believes that the proposal is not in keeping with the rest of the estate and spoils a view from the one part of the estate that she is used to seeing when she walks round the estate. She was also concerned that there might be some interference with the sunlight from the south west in the evening to the front of her property.

Mr and Mrs Tilsley

44. Mr and Mrs Tilsley accept that the proposed extension will not obscure their view. However it will close the gap between number 23 and 22 and thereby reduce the much enjoyed view as they approach their house. It will in addition reduce the feeling of openness and green landscaping envisaged when the development began.

4.7 Planning History

45. On 25^th February 2005 Mr Davies submitted the planning application for the 3 storey extension to Reading Borough Council. A number of representations were made to the Council including letters from Mr and Mrs Dennis. On 3^rd May 2005 the application was refused. Four reasons were given of which three are relevant:

1. The proposed extension encroaches into an important gap within the built environment which adds to the character of the area and the street scene.

2. the extension would appear as an overbearing element and detrimental to the outlook of adjacent properties

3. the extension would be out of character with existing nearby properties

46. Mr Davies appealed to the Secretary of State. His appeal was determined by an Inspector who on 19^th October 2005 granted permission. In paragraph 8 of his decision the Inspector accepted that the gap was important but did not feel that the extension which was only 3 metres wide reduced the gap to a significant degree. He considered the impact on Numbers 16 and 17 (but not Number 46). He acknowledged the outlook from Number 16 would be affected but did not consider there would be any material reduction in their living conditions. He did not consider that the 3 extra windows materially affected their privacy. As the proposed extension was some 10 metres from Number 17 and at a lower height he did not consider that material harm would be caused to the outlook of Number 17. In his view the proposed development was not out character with surrounding dwellings and the materials matched the existing materials.

4.8 Permission from Peverel

47. On 10^th January 2007 Mr Davies submitted to Peverel an application for permission to carry out the proposed extension. On or about 7^th February 2007 there was a meeting of Heron Island Residents Association ("HIRA") which was attended by Mr Davies. Mr Davies formed the view that the main objection to his proposal related to the boundaries in that HIRA was concerned that the extension encroached onto the common parts. It does, however seem clear that a number of other concerns were expressed including the question of whether the covenants in the transfer had been broken.
48. A number of residents (including Mr Dennis and Mr Giles) sent letters of objection to Peverel following the meeting of HIRA. In his letter dated 11^th February 2007 to the estate manager, Mr Sheehan. Mr Dennis expressed concern about the boundaries but in addition made the point that the extension would be detrimental to numbers 16, 17, 18 19. In his view Number 16 would be worst affected. Mr Giles made the point that the extension would significantly reduce the width of the gap giving a view of the Thames and affect the resale value of the property.
49. There was further correspondence in March 2007 during which Mr Dennis repeated his objection and Mr Davies provided a surveyor's report on the boundaries. Mr Davies made the point that the objections should have been made before the planning inspectorate.
50. On 2^nd April 2007 Mr Sheehan sent Mr Davies an e-mail stating that the matter was on hold until after a meeting of HIRA on 4^th April 2007. On 17^th April 2007 the occupier of Number 47, a solicitor, wrote a detailed 5 page letter to Mr Sandler, Peverel's company solicitor setting out a number of objections to the proposed extension.
51. On 18^th April 2007 Mr Davies wrote to Peverel asking for a response before 4^th May 2007 because work on the extension was scheduled to begin on 7^th May 2007. Mr Sheehan replied that all necessary information had been received and that he was passing the file to Mr Sandler to make a final decision.
52. No decision had been made by 13^th May 2007 (a Sunday). On that day Mr Davies was informed by his builder that he was going to start work the following day. Thus at about 8.30 p.m on 13^th May 2007 Mr Davies informed a few of his neighbours that work was to commence even though he did not at that time have consent.
53. Not surprisingly there was a great deal of telephonic/electronic communication on 14^th May 2007. It is not necessary for me to set it out in detail.
54. At 10.54 Mr Dennis e-mailed Mr Sheehan asking him to take immediate action to have the works suspended. Similar letters were sent at about the same time by the owners of Number 47 and Mr Cameron.
55. At 12.18 Mr Davies sent a letter to Mr Sheehan complaining about the delay and stating that he assumed that there was no valid objection. He threatened legal action in the event of objections or delays.
56. At 12.28 Mr Sheehan replied to Mr Davies. He made the point that Mr Sandler would be advising on the application. He referred to the numerous complaints and recommended that work on the extension did not commence until the decision to approve had been made.
57. At 14.29 Mr Davies replied to Mr Sheehan. He pointed out that the work was at that stage only preparatory and made some points on the suggestion that his service charge would increase. He commented that he had been informed that the decision would be made on the following day.
58. At 15.56 on 15^th May 2007 Mr Sheehan sent an e-mail to Mr Davies in the following terms:

"I have now been advised by my Regional Manager and company solicitor that consent for the application can be given on provision of the following

1. Professional drawings confirming that the extension is in line with the existing properties. If you have additional plans in this regard, please can you forward them to me at your earliest convenience to avoid any further delays. Working drawings of the plans/elevations in colour would be helpful.

2. Confirmation by an independent RICS surveyor appointed by Peveral OM that your boundary lines are not being altered in relation to the work. I note that you have submitted a surveyors report but they are unfortunately not RICS.

(please note that the cost of this will be rechargeable to the applicant as per the terms of your transfer. – Schedule 3; 1)

I will be confirming the above by way of hard copy for your records."

59. This is the e-mail relied on by Mr Davies as consent within the meaning of the covenant.
60. There was in fact no hard copy ever sent to Mr Davies. In May there was further correspondence but it is not necessary to refer to it in detail.
61. On 23^rd May 2007 Peverel sent a letter to residents setting out their understanding of the position. In summary Peverel was waiting for detailed working drawings to ensure that the extension was in keeping with the rest of the estate and that the scope of the work did not encroach or alter private boundary lines. It was Peverel's view that the purpose of the covenant was to ensure that the extension was in keeping with the plans submitted to the council.
62. There was a meeting of HIRA on 31^st May 2007. There was a practically unanimous vote by those present against the extension.
63. At 10.42 on 31^st May 2007 Mr Sheehan sent an e-mail to Mr Davies chasing up the plans. The e-mail stated that the surveyor was ready and that "we can then grant consent providing all is in order. Please note to date this has not been granted".
64. On or about 14^th June 2007 the relevant plans were sent to the surveyor. The surveyor inspected the site on 20^th June 2007 and prepared a report dated 25^th June 2007. It is plain from the report that he was instructed to check the boundary and also whether the proposed extension breaches any covenants with regard to communal service installations/pipes/drains. It is also plain that this latter instruction was not mentioned in the 15^th May 2007 e-mail. In any event he reported that the extension shown by Mr Davies lay within the freehold title area of his plot. However he also reported that there were possible breaches of covenant 4 in relation to the moving of fences and covenant 9 in that Mr Davies is building over a main drain run.
65. Following a conversation on 26^th June 2007 Mr Sheehan sent Mr Davies an e-mail in which he re-iterated that no consent had been approved by Peverel and that no work should commence until further notice.
66. On 28^th June 2007 Peverel wrote to Mr Davies enclosing a copy of the report. It drew attention to the fact that the foundation piles were within 1.5 metres of a storm water sewer and no approval could be given and suggested that the plans be amended. The letter insisted that work cease immediately.
67. On 3^rd July 2007 Mr Davies replied to Peverel. In the letter he suggested that due to the conduct of Peverel it would be unconscionable to withhold consent. He therefore proposed a meeting.
68. On 11^th July 2007 Mr Sheehan sent an e-mail to Mr Davies reminding him not to start work before revised plans are submitted. On 17^th July 2007 Pitmans on behalf of Mr Davies wrote to IBB on behalf of the Claimants. In the letter they assert that Mr Davies considers he already has the consent from Peverel.
69. Shortly thereafter Mr Davies ceased work on the extension. It remains in abeyance pending the outcome of the litigation.

5. The experts' views

70. There was a difference between the approach of Mr Derbyshire and Mr Fennell. Mr Derbyshire visited each of the properties on 18^th April 2008 and focussed on the loss of views that each of the Claimants will suffer. In paragraph 4.1 he makes the point that the development is relatively high density but that it is clear that the developer sought to take full advantage of the riverside location when designing the layout of the site. He agrees with both the Council and the Inspector that the length of open River frontage adds to the character of area. He points out that it is not the function of the planning system to protect the private interests of one person against the activities of another. It is concerned with the public interest.
71. In Mr Derbyshire's view the extension is not minor; it is in a prominent location; it will be noticeable to all residents. He relies on the photographs and the photomontages to demonstrate better than he can describe the loss of amenity to be suffered by Numbers 16, 17 and 47 if the development proceeds. In his view both numbers 16 and 17 would suffer a significant loss of amenity and he could well understand how this could give rise to them suffering an annoyance or nuisance. Mr Derbyshire made the point Number 46 only has very limited views of the Thames. In those circumstances it is perhaps more important that those views are preserved.
72. In cross-examination Mr Derbyshire stood his ground. He agreed that Mr Fennell's approach might be regarded as more scientific and that some of the matters relied on by Mr Fennell were relevant matters. He made the point that he had stood on the balcony of Number 16 and looked out of the window at Numbers 17 and 46. He thought the impact of the extension was significant. He had sympathy with the views of the Council. He repeated his view that loss of view was not something with which the public interest was concerned. There was some debate as to the effect of Mr Davies planting trees or high shrubs. He found it difficult to imagine what was being suggested but made the point that it would be a wholly different order of obstruction from a solid 3 storey red brick extension.
73. Mr Fennell adopted what might be regarded as a more analytical approach to the problem. He visited the site but did not find it necessary to visit individual properties so as to see for himself the view from the windows. He carried out a lot of helpful research on the character of the estate and discovered all of the planning permission that had been granted since 1988. However he agreed that with the exception of the installation of a lift shaft to No 22 in the 1980s all of the works and alterations that had been carried out were significantly smaller than those proposed by Mr Davies.
74. He carried out a number of calculations and prepared a number of plans. He analysed the reduction in the gap between number 22 and 23 and agreed with the inspector that the reduction was not significant. The gap between number 22 and 23 is reduced from 32.8m to 29.3 m. The gap between 23 and 17 is reduced from 9.8m to 9.7m He produced a plan showing the reduction in visibility from the public areas caused by the extension. He produced a plan showing the reduction in visibility from Number 16. This takes as its centre point a point in the centre of the balcony at number 16. It shows a 48^o splay to the north east of the moorings which is unaffected by the development; it shows an 18^o splay to the east towards the Thames itself of which 5^o are affected by the development. He pointed out that the view over the Thames is in any event surrounded by buildings. He made the point that the human eye has a larger field of view than a camera and in any event a larger view can be obtained by walking around the balcony. He acknowledged that the residents of Number 16 might not like the prospect of reduced views to the river but he did not consider that the extension will materially affect the enjoyment of the view.
75. He made the point that north facing windows of Number 17 have unobstructed views of the moorings. These and the view from across the river would be unaffected by the extension. He accepted there would be some reduction in the view from the bay windows at first and second floor. However due to the orientation towards the centre of the estate he considered they provide limited views of the river.
76. He accepted that Number 46 enjoys views from the bay window through the gap. He suggested that the view over the river is in any event limited. It is further limited in summer by vegetation. In the result he concludes that any loss of view is not material to either Number 17 or 46.
77. In cross-examination Mr Fennell stood his ground. In his view the loss of 5% of the view of No 16 would not have a significant impact on the amenity and enjoyment of their property.
78. He agreed that he was looking at matters from a planning point of view and that he felt able to form his views without actually visiting the instant properties.
79. Mr Hepple's report was uncontroversial and he was not cross-examined. He described the estate in some detail. He valued the properties at between £450,000 and £550,000. He assessed the increase in value of Number 23 if the extension was built as being of the order of £100,000. However the cost of the extension was between £75,000 to £95,000 and he concluded that there was no commercial gain to Mr Davies in carrying out the extension. He was unable to identify any significant loss in market value in any of the Claimants' properties as a result of the extension being built.

6. The nuisance and annoyance covenant.

6.1 The law

80. Mr Weekes submits that it is relevant to consider the position "at common law". In his skeleton argument he referred me to a number of authorities including Hunter v Canary Wharf Ltd [1997] AC 655 where Lord Hoffmann said at page 709 that:

"The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land...

In the absence of agreement, therefore, the English common law allows the rights of a landlord to build as he pleases to be restricted only in carefully limited cases and then only after the period of prescription has elapsed".

81. Lord Goff said at page 685 that:

"As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls. Moreover, as a general rule, a man's right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour's enjoyment of his land...[H]is neighbour generally cannot complain of the presence of the building, though this may seriously detract from the enjoyment of his land."

82. The Claimants, however, do not rely on "the common law". They rely on the covenants in the transfer. As Mr Hutchings points out covenants such as are to be found in these transfers are familiar and have been considered by the courts on a number of occasions.
83. The leading authority is, I think, still the decision of the Court of Appeal in Tod-Heatley v Benham 40 Ch D 81. That case concerned a lease of a dwelling-house which included a covenant

"nor do or wittingly or willingly cause or suffer to be done any act, matter, or thing in or upon or about the said premises, which shall or may be or grow to the annoyance, nuisance, grievance or damage of the lessor, her heirs and assigns, or the inhabitants of the neighbouring or adjoining houses."

84. The premises were opened as "the Queen's Jubilee Hospital and Surgical Appliance Department for the treatment of diseases of the throat, nose, ear, skin, eye, fistula, and other diseases of the rectum, and various deformities of the human frame" - the Institution, which was intended for poor out-patients, being supported by voluntary contributions. An action was brought to restrain this activity. The action succeeded in the Court of Appeal. In the course of his judgment Cotton LJ (at p 93) said:

Then comes the question whether there is an annoyance or grievance either to the adjoining houses or to the houses on the property in question. Now "annoyance or grievance" are words which have no definite legal meaning. It has been pressed upon us that we cannot say that it was that which was an annoyance or grievance to reasonable people, because the Judges, in speaking of what would be an annoyance to reasonable people, are only speaking of what they themselves really think would be an annoyance or grievance. That is the difficulty that Judges very often have to deal with; they must not take that to be an annoyance or grievance which would only be so to some sensitive persons. They must decide not upon what their own individual thoughts are, but on what, in their opinion and upon the evidence before them, would be an annoyance or grievance to reasonable, sensible people; and, in my opinion, an act which is an interference with the pleasurable enjoyment of a house is an annoyance or grievance, and within the definition given by V.-C. Knight-Bruce in Walter v. Selfe (1). It is not sufficient in order to bring the case within the words of the covenant, for the Plaintiffs to shew that a particular man objects to what is done, but we must be satisfied by argument and by evidence, that reasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved by what is being done. In my opinion, it is not necessary in order to shew that there has been reasonable ground for annoyance or grievance, to prove absolute danger or risk of infection. In my opinion a reasonable apprehension of nuisance from acts done by the Defendant is a matter which will produce such interference with the pleasurable and reasonable enjoyment of the adjoining houses as to come within the words "annoyance or grievance"; not that any particular person is annoyed or aggrieved, but that there is annoyance or grievance to persons who entertain reasonable views.

85. In his judgment Lindley LJ said (at p95):

The question which arises is, what is the meaning of the expression "shall or may be or grow to the annoyance, nuisance, or damage" of the persons named. Certainly that string of words is introduced in order to give the covenantee a greater protection than he would have had without any such words at all, or if only one of those words were used. There is no use in putting in the words "any grievance or damage" as additions to nuisance except for the very purpose of giving some greater protection than he would have had if the word "nuisance" alone were used and included in the covenant.

Still we come back to the question whether that which has been done is not within those words, "such as shall cause or may be or grow to the annoyance or grievance of the lessor." Now what is the meaning of annoyance? The meaning is that which annoys, that which raises objections and unpleasant feelings. Anything which raises an objection in the minds of reasonable men may be an annoyance within the meaning of the covenant. Then to whom is it to be an annoyance? It must be to "the lessor, her heirs or assigns," or the inhabitants of the adjoining houses; the lessor is represented by Mr. Tod-Heatly, the owner of the reversion of this property. In this case he says: "It is not because I live there, but because my tenants come to me and complain, and it gives me trouble and vexation, since what annoys them is a trouble and vexation to me." But the under-tenants, are they not annoyed? Is there nothing done here which raises an objection on their part, looking at them as reasonable beings? Is it a fanciful feeling of distaste? I must say at one time I thought that the Appellant might succeed in shewing that there was really nothing to complain of here except fanciful annoyance to the proprietor and to the inhabitants of the adjoining houses. It struck me there might be some doubt whether there was any annoyance to the neighbouring or adjoining houses - more than some fanciful distaste, which would not be sufficient. But upon the evidence I am satisfied that what has been done really does annoy a great many people on this estate. It appears to me to be unnecessary to decide whether the doctors on the Defendant's side are right in saying that there is nothing to be

86. Bowen LJ said (at p 98):

Now, all we have to consider is, on the evidence before us, whether this hospital is a thing which is an annoyance to the lessor or to the inhabitants of the neighbouring or adjoining houses. What is the meaning of the term "annoyance"? It implies more, as it seems to me, than "nuisance." The language of the covenant is, that nothing is to be done, "which shall or may be or grow to the annoyance, nuisance, grievance, or damage of the lessor or the inhabitants of the neighbouring or adjoining houses." Now, if "annoyance" meant the same thing as "nuisance" it would not have been put in. It means something different from nuisance. If guided strictly by the Common Law, we know what nuisance is. Whether the term is employed in the covenant in the exact sense of the term at Common Law or not, is a matter that may be doubted, but I will assume as matter of argument only, that "nuisance" in this covenant means only a nuisance at Common Law…

"Annoyance" is a wider term than nuisance, and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house - if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment to comfort. You must take sensible people, you must not take fanciful people on the one side or skilled people on the other; and that is the key as it seems to me of this case

87. Mr Hutchings next referred me to the decision of Romer J in Wood v Cooper [1894] 3 Ch 671. That was a case which, on one view has similarities to this case. It involved a long lease of a piece of land with a dwelling house. The lease contained a number of covenants including

not to erect or build or cause to be erected or built upon the said piece of ground thereby demised, without the previous license in writing of the lessor parties, "any other building whatsoever," …

"; and "not to do or suffer to be done on the said premises or any part thereof any act, matter, or thing which may be or become an annoyance, nuisance, or disturbance to the neighbourhood or to any tenant of the lessor parties."

88. A neighbour built a house on neighbouring land in accordance with approved plans. Shortly after he went into occupation the Defendant commenced to erect a substantial trellis-work screen on the northern side of his land fronting the new house. This screen stood on the Defendant's land about a foot from the boundary fence (which was a brick wall eight feet high) and was fifty-eight feet six inches in length, and stood twelve feet above the boundary wall. The claim for an injunction succeeded on 2 grounds. First the trellis was held to be a building within the meaning of the covenant. In the light of Mr Weekes change of tack this finding is no longer relevant. Second it was held to be an annoyance within the meaning of the covenant. At page 676 Romer J said:

. In the second place, I have no doubt whatever in my own mind, that it is a breach of the covenant that the lessee "will not do or suffer to be done on the premises, any act, matter, or thing which might be or become an annoyance to any tenant of the lessor." To my mind, undoubtedly, what the Defendant has done is an annoyance to Mr. Neale, the tenant of the lessor. I think, in the first place, that it does substantially interfere with the access of light to the windows on the ground floor of this building, and that, notwithstanding some parts of the expert evidence; and I feel satisfied beyond that, and irrespective of that, that it causes an annoyance to Mr. Neale, the tenant, within the meaning of the words used in the covenant. It falls within the definition of the word "annoyance," in a covenant like this, which was given by the three Lords Justices in the case of Tod-Heatly v. Benham (1). In the first place, to adopt the language of Lord Justice Cotton(2), I am satisfied by the evidence before me that reasonable people, having regard to the ordinary use of Mr. Neale's house for pleasurable enjoyment, would be annoyed and aggrieved by what has been done by the Defendant. It would be an annoyance or grievance to reasonable, sensible people. It is an act which is an interference with the pleasurable enjoyment of the house. Then, to adopt the words of Lord Justice Lindley(3), I think it does raise an objection in the minds of reasonable men, and is an annoyance within the meaning of the covenant. Lastly, as pointed out by Lord JusticeBowen(4), "'Annoyance' is a wider term than nuisance, and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house - if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment to comfort."

89. The significance of this case is that it shows that covenants of this kind can be used in relation to buildings.
90. Both Counsel referred me to an observation of Megarry J where he said that what is a nuisance or annoyance will continue to be judged by robust and common sense standards.

6.2 Legal Submissions

91. Mr Weekes divided his submissions into 3 parts. First he submitted that the nuisance and annoyance covenant has no application to the erection of or alteration to a building. He submitted that the 22 covenants should be viewed as creating a unified scheme and should not be viewed in isolation. He submitted that covenant in relation to approval of plans was the covenant controlling building and that there was no need for this covenant to apply to buildings. He submitted that the explicit nature of the covenant in paragraph 1 should take priority over the covenant in paragraph 2. He submitted that the covenant was designed to regulate activities rather than the effect of buildings. He submitted that the covenant was, what he described as "a close relative of common law nuisance" He drew to my attention that at common law there was no protection for a view and that a view cannot be protected by prescription. He said that the scheme of the transfers was that buildings and alterations were to be controlled by the management company and it would be surprising if, in those circumstances the parties had intended that individual purchasers would have an additional right to control buildings. He pointed to the uncertainty of the assessment of whether a right to a view was a nuisance. He submitted that there was no reason why the parties would have wanted to regulate the nature and design of buildings by reference to the law of nuisance. He drew my attention to the planning system which regulates proposed developments.
92. Mr Weekes recognised that Wood v Cooper might be thought to be something of an obstacle to these submissions. He sought to overcome that hurdle in the following way. He cautioned me against interpreting the covenant in the instant case by reference to a covenant in another case however similar it might appear. He drew my attention to the striking nature of the facts in Wood v Cooper; he made the point that the building was not an ordinary building such as the extension in this case^[2]. It was a 20 foot high trellis fence that was plainly objectionable. He made the point that there was no planning system in place in the 1890s. He suggested that the arguments that he had advanced were not advanced before Romer J
93. I cannot accept these submissions. To my mind there is no inconsistency between the requirement for the approval of plans by Peverel and the nuisance and annoyance covenant. Thus there is no reason why they should not both be applicable. If a building is a nuisance and annoyance to a particular purchaser I do not see why he should be prevented from exercising his right simply because the plans have been approved by Peverel. As Mr Hutchings pointed out the nuisance and annoyance covenant is in a relatively standard form. Its meaning has been well-known to conveyancers for a long time. The decision in Ward v Cooper is well known. I accordingly agree with the submission of Mr Hutchings that if the parties had wanted to cut down the ordinary meaning of the nuisance and annoyance covenant they should have done so expressly.
94. Whilst it is true that part of the covenant refers to activities on the part of the covenantor the covenant is in fact wider than that. It includes the words:

nor to do or suffer to be done on the Plot or any part thereof anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood

95. The emphasised words are wide. There is no reason why, as a matter of construction, they cannot apply to the effect of alterations carried out to existing buildings.
96. Under clause 2 of the transfer the property was conveyed subject to the rights set out in the Second Schedule. Mr Weekes next submitted that the Claimants' rights were excluded by Paragraph 2 of that schedule in their respective transfers:

"The full right to use all or any other parts of the Estate for building and rebuilding or any other purposes without claim by the Purchaser or his successors in title to any right of light or air or other easement or right which would restrict or interfere with such use."

97. With the greatest respect to Mr Weekes this is a hopeless argument. In my view this is a clause permitting the vendor to build and rebuild on the estate. It in no way affects or regulates the rights of the purchasers in claims between themselves. It does not purport to do so. As Mr Weekes was forced to accept his construction of the clause does not fit well with covenant 1 which requires plans to be submitted for approval.

6.3 Factual submissions and conclusion

98. In my view therefore the question is whether applying the guidance afforded by the case of Tod-Heatly v. Benham this extension would be or become a nuisance or annoyance to the Claimants. Would reasonable people, having regard to the ordinary use of the Claimants' houses for pleasurable enjoyment, be annoyed and aggrieved by the extension? To adopt the words of Lord Justice Lindley, would the extension raise an objection in the minds of reasonable men, and be an annoyance within the meaning of the covenant? Lastly, would the extension reasonably trouble the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of the Claimants' houses?
99. As I have noted the test is an objective one and must be judged by robust and common sense standards.
100. At the end of the day the issue is a relatively narrow one. As I indicated in the course of argument I think that some of the objections of the Claimants contained in their witness statements would fail that objective test. Thus I agree with Mr Weekes that the objections with regard to the size of the gap, the view on the approach to Number 22, and the visiting of the water front would not reasonably trouble the minds of an ordinary sensible inhabitant of the Claimants' houses.
101. However I have had the benefit of a view from each of the Claimants' houses. I have seen the view of the river – admittedly in November. I have seen photomontages of the effect of the extension. I agree with Mr Derbyshire that the loss of view is significant from Numbers 17, 46 and especially from Number 16. In my view the three storey red brick extension would trouble the minds of the ordinary sensible English inhabitant of any of those three houses and in those circumstances it does constitute an annoyance within the meaning of the covenant.

7. The Permission Covenant

102. On any view this is very much a subsidiary point. If, as a matter of construction, Peverel have not granted permission, there would be nothing to prevent them from reconsidering revised plans and granting permission. Furthermore, in the light of my conclusions on the nuisance and annoyance covenant it is not strictly necessary for me to come to any conclusion on this covenant. However as the matter has been fully argued before me I propose to express my views briefly.
103. As already noted the covenant is in the following form:

Not to erect on the Plot or any part thereof any building whether of a permanent or temporary nature except such as shall be in accordance with plans and elevations which shall have been approved in writing by the Management Company.

104. It is now conceded that the extension is a "building" within the meaning of the covenant; so the crucial question is whether the plans and elevations have been approved in writing by the Management Company – Peverel.
105. The only document relied on by Mr Davies is the e-mail dated 15^th May 2007 which I repeat for convenience:

"I have now been advised by my Regional Manager and company solicitor that consent for the application can be given on provision of the following

1. Professional drawings confirming that the extension is in line with the existing properties. If you have additional plans in this regard, please can you forward them to me at your earliest convenience to avoid any further delays. Working drawings of the plans/elevations in colour would be helpful.

2. Confirmation by an independent RICS surveyor appointed by Peveral OM that your boundary lines are not being altered in relation to the work. I note that you have submitted a surveyors report but they are unfortunately not RICS.

(please note that the cost of this will be rechargeable to the applicant as per the terms of your transfer. – Schedule 3; 1)

I will be confirming the above by way of hard copy for your records."

106. Mr Weekes submits that whether the e-mail should be interpreted as granting a consent falls to be determined objectively against the background of the circumstances surrounding the sending of that e-mail. He thus submits that I have to consider how a reasonable person in the position of Mr Davies would have understood the e-mail.
107. Mr Weekes submitted that events that occurred after 15^th May 2007 cannot be a guide to the construction of the e-mail. Thus the fact that Peverel, on at least 2 occasions after 15^th May 2007 stated that there was no permission, and the fact that Mr Davies did not suggest that there was permission until the letter of 17^th July 2007 does not assist in determining whether the e-mail constituted a permission.
108. Mr Weekes relies on 3 matters in support of his submission that the e-mail is to be treated as a consent:

1. He submits that it is the natural interpretation of the statement that "consent can be given on provision of [the matters listed in points 1 and 2]".

2. He submits that by stating that confirmation of the contents of the email would be provided by hard copy for Mr Davies' records, Mr Sheenan implied that he was communicating an important decision that was intended to have legally binding effects.

3. Finally, the circumstances surrounding the sending of the e-mail indicate that it was intended to communicate a consent under paragraph 1 of the Third Schedule. In support of this he relies on the e-mails dated 18^th April 2007, and 14^th May 2007 in which Mr Davies was told that a final decision would be made by the Regional manager on the following day.

109. Mr Hutchings on the other hand submits on its true construction the e-mail cannot amount to consent within the meaning of the covenant, nor was it ever considered to be a formal consent. It is not an 'approval in writing' as required, because:

1. It is at its highest, a conditional consent -which the covenant does not permit; but, more likely it is not a consent at all. The phrase 'can be given' meant 'might be given' not 'will be given'. Furthermore it purports only to be an 'advice' of certain individuals – not consent as such.

2. It is too vague to amount to a consent - the reference to an extension 'in line' with the existing properties is wholly ambiguous. It cannot have been treated or meant as a formal consent within the covenant.

110. The circumstances surrounding the sending of the e-mail include the following; first Mr Davies had applied for permission from Peverel in January 2007 and thus there had been 4 months delay in making a decision; second, there was opposition to the plans from the other residents both on the grounds of boundaries and breach of covenants; third Mr Davies had commenced work in breach of the covenant; fourth Peverel were under considerable pressure from both sides on 15^th May 2007 – the residents were demanding that steps be taken to stop the work; Mr Davies was threatening to sue for delay.
111. The problem that has arisen in this case arises because Peverel did not limit the instructions given to the Surveyor to the narrow question of the boundaries which had been referred to in paragraph 2 of the e-mail. Instead it sought confirmation on the (equally relevant) question of whether the proposed extension breached covenants relating to the common parts that it was responsible for. Whilst the surveyor was able to confirm that the boundaries were within Mr Davies's land he was also of the view that there would be a breach of covenant.
112. In the end the question of construction is a narrow one. In my view the e-mail is not a formal consent within the meaning of the Transfer. It is at best a statement of intent that consent will be given in the future if the 2 conditions are satisfied. It does not, however, bind Peverel to grant consent if, on further investigation, other reasonable objections to the granting of consent arise.
113. Accordingly I prefer the submissions of Mr Hutchings. There was and is no consent to the extension within the meaning of the covenant.

JOHN BEHRENS

Friday 21 November 2008

Note 1   Technically the management Company was OM Limited but nothing turns on this distinction    [Back]

Note 2   No doubt this was the reason he abandoned an earlier submission that the extension was not a building    [Back]