Brian Kilcoyne, head of property litigation, Lewis Silkin
A room with a view
Could social housing developments be stopped if deemed ‘annoying’ to neighbours?
A strange as it may sound, this could be a valid question to ask. Developments are often frustrated by third party rights, such as easements and restrictive covenants.
So what if the title reveals a (not uncommon) covenant prohibiting anything which may cause a nuisance or annoyance to neighbours? Could such a covenant be relied on to limit or stop a development?
The case
The answer is: yes, in theory - as the recent case Dennis v Davies (2009) shows. In this case, Mr Davies wanted to build a side extension to his house on Heron Island in the River Thames.
Although he had planning permission, Mr Davies’ house was subject to a restrictive covenant not to do anything which would be a nuisance or annoyance to his neighbours. Unfortunately Mr Davies’ proposed extension would have reduced the river view of five inland properties and the owners of those properties objected on the ground that they would find this ‘annoying’.
One might think that such a challenge was fanciful. For a start, it is established that there is no such thing in law as a right to a view.
Second, it is established that a covenant against causing a ‘nuisance’ only prohibits things which would be a common law nuisance - ie an unreasonable use of land which interferes with a neighbour.
Undertaking building work is a perfectly reasonable, everyday activity and so could not in theory be a ‘nuisance’ (albeit that in practice it might be if done without any due care for neighbours). And the words ‘or annoyance’ would not add anything - surely they proscribe the day-to-day use of the land or human behaviour rather than a one-off activity like building work?
The judgement
Not so, said the trial judge. Relying on case law from 1888 and 1894, he found that the word ‘annoying’ extended the covenant significantly and precluded any activity which would objectively ‘trouble the mind and pleasure of… the ordinary sensible English inhabitant of [a house]’.
As such it could apply to erecting a building and, on the facts of the case, he found that three of the five objectors would be thus annoyed by the likely loss of view. His decision was upheld in the Court of Appeal.
This case was based on particular facts and the court was evidently sympathetic to the objectors’ wish to preserve the somewhat special nature of Heron Island. However, one does wonder where the line will be drawn between activities which are objectively or reasonably annoying and those which are subjectively or unreasonably annoying.
Would a court allow a NIMBY to use this type of covenant to block a social housing development? No doubt this would be a matter of judgement on the facts of any particular case. But it would be naive to think that such judgements are going to be easy to make.
brian.kilcoyne@lewissilkin.com
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Readers' comments (2)
Bernard Townroe | 03/12/2009 8:58 am
Perhaps there is case law relating to 'annoying' objections that could rule them out of order in the first place.
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kass | 05/12/2009 10:43 am
"...Although he had planning permission, Mr Davies’ house was subject to a restrictive covenant not to do anything which would be a nuisance or annoyance to his neighbours. Unfortunately Mr Davies’ proposed extension would have reduced the river view of five inland properties and the owners of those properties objected on the ground that they would find this ‘annoying’...."
If planning permission included the restrictive covenant, then the neighbours have done nothing but uphold their rights. And why should have they forfeited their 'view'? Some properties values depend very much on the view they offer.
It is the issuers of the restrictive covenant, not the neighbours, the obstacle.
Any social housing development cannot override this just by claiming the moral right that there will be homeless people being housed. The neighbours have done nothing else but using the restrictions to protect the value and enjoyment of their assets, this is what most commonsense people would do in most similar circumstances.
Of course this case might be used by NIMBYs. But that's no different from any other law. As any other law any citizen having access to it will use it for whatever reason, good, bad or indifferent...
In the presence of restrictions as the one in this case, it is up to the social developer to pursue and promote a strategy inclusive of anyone who might oppose a development. How in practice to do this, and how well and effetively this is done, will depend on how resourceful the developper is.
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