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 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?
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.