Reynolds Report - January 2024
It is a sad truth, or perhaps just a reflection of human nature, that property owners will frequently be annoyed by development projects ongoing on land near to their own. They will feel that the project is too large, too close (overlooking etc) or simply not in keeping with the nature of the area.
In the past Local Authorities could be relied upon to exercise at least some control over projects of this type but in this era of Local Authority housing targets, permitted development and in-filling some may feel that this control is no longer being effectively exercised.
So what chances are there of ‘private enforcement’ – trying, yourself, to influence and control development taking place on land which is not your land?
Many properties in the UK have the benefit of restrictive covenants over adjoining land which require the owner of that land ‘not to do anything on the land which may become a nuisance or cause annoyance.’ The question then arises as to whether lawful building work, done in accordance with planning permission can be stopped (or restricted) by way of such a covenant?
This was one of the issues considered in the case of Dennis v Davies :
Mr & Mrs Dennis owned a house on Heron Island in the River Thames – a site developed in the mid-1980’s by Heron Homes as a residential estate comprising 47 three-storey houses. Mr Davies owned another property on the island – No 23.
Every house in the development had a waterside frontage with a view of the river. Each property also had the benefit of mutually enforceable restrictive covenants which included a covenant not to do or allow to be done on the property anything which might become a nuisance or annoyance to the owners or occupiers of other properties in the development.
In 2005 Mr Davis obtained planning permission for a three-storey extension to his property and in May 2007 building work started. Mr & Mrs Dennis applied to the High Court for an injunction to stop the work.
On 21 November John Behrens KC gave judgement in the Chancery Division of the High Court (Dennis v Davies  EWHC 2961 (Ch)) confirming the injunction. He also came down heavily in favour of the view that building work on an adjoining property – even if lawfully carried out in accordance with planning permission – could amount to a breach of a covenant not to do or allow to be done anything which might become a nuisance or annoyance citing the statement of Bowen LJ in Tod-Heatley v Benham  Ch D 81:
“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.”
John Behrens KC then went on to set out a three stage test as to whether or not the covenant would be triggered by the planned development:
- Would reasonable people, having regard to the ordinary use of the Claimants' houses for pleasurable enjoyment, be annoyed and aggrieved by the extension?
- would the extension raise an objection in the minds of reasonable men, and be an annoyance within the meaning of the covenant?
- 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 inhabitant of the Claimants' houses?
Applying these tests in accordance with ‘robust and common standards’ he found that the covenant was infringed and, for this and other reasons, found in favour of the Claimant (Mr & Mrs Dennis) and upheld the injunction.
Mr Davies subsequently pursued matters to the Court of Appeal (Davies v Dennis  EWCA 1081) but to no avail – the first instance judgement was upheld. (In fact Mr Behrens’ statements that the annoyance covenant had been breached were so clear that this issue was barely pursued in the Appeal.)
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