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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Davies v Dennis & Ors [2009] EWCA Civ 1081 (22 October 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/1081.html Cite as: [2009] EWCA Civ 1081, [2010] 3 EG 104, [2009] NPC 117, [2010] 1 P & CR DG13 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
His Honour Judge Behrens (sitting as a Judge of the High Court)
Claim No: HC07C02128
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WILSON
and
LORD JUSTICE RIMER
____________________
ANTHONY STEPHEN DAVIES |
Appellant |
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- and - |
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(1) RICHARD AND MARGARET DENNIS AND OTHERS |
Respondents |
____________________
Mr Martin Hutchings (instructed by IBB Solicitors) for the Respondents
Hearing date: 3 June 2009
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Crown Copyright ©
Lord Justice Rimer :
Introduction
The background facts
'16. … 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.'
'The Purchaser for himself and his successors in title and with the intent to bind the Plot into whosesoever hands the same may come hereby 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 covenants and stipulations set out in the Third Schedule hereto PROVIDED THAT nothing herein contained shall prevent the Vendor or its successors in title from selling or otherwise disposing of any part or parts of the Estate free from any restriction or stipulation or from waiving compliance with or agreeing to vary any restriction or stipulation now or hereafter affecting any part of the Estate nor be deemed to create a building scheme.'
'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 and whose proper and reasonable fees shall be paid by the persons submitting such plans and elevations for approval
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 …
4. (a) Not to allow the wall fence or boundary posts along those boundaries of the Plot indicated by a "T" within the boundary on Plan 1 nor the rear wall or fence to fall into disrepair but to maintain the same in good condition
(b) Not at any time to erect or permit to be erected along any of the boundaries of the Plot any boundary structure of whatsoever nature other than as may exist at the date hereof (and where only boundary marker posts exist along such boundary not to erect any boundary structure of whatsoever nature) without the written consent of the Management Company which shall be entitled to grant or withhold its consent entirely at its discretion
(c) Not to erect construct or plant in front of the front or side building line any wall fence gate or other means of enclosure without the written permission of the Management Company and the Local Planning Authority'
It is not disputed that each claimant is entitled to the benefit of, and to enforce against Mr Davies, the restrictive covenants contained in those paragraphs. Paragraph 4(a), although expressed in negative terms, in fact looks more like a positive covenant; if so, it may not be so enforceable, although I express no final view on that.
'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.'
What is the reach of the covenant in paragraph 2?
'… 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'.
'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 opinions 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 4 De G. & Sm. 322. It is not sufficient in order to bring the case within the words of the covenant, for the Plaintiffs to show 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.'
Lindley LJ made like points. He said, at 95/96:
'The question which arises is, what is the meaning of the expression "shall or may be or grow to the annoyance, nuisance, or damage' [sic: he omitted 'grievance'] 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. … I cannot at all agree with the contention that these words "annoyance or grievance to the inhabitants" mean that which would be according to law a nuisance, or that the covenant is only against such acts as would produce pecuniary damage. … 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.'
Bowen LJ said, at 97/98:
'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. … "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.'
'Not to cause or permit or suffer to be done in or upon the property any act or thing which may be or become a nuisance, annoyance, danger or detriment to the transferor or owners or occupiers for the time being of other parts of the estate'
'Mr Macdonald's [leading counsel for the appellant] primary submission was that the covenant does not impose any restriction on the persons who may occupy the property. It only restricts the acts or things which the occupants, whoever they be, may do there. Although Ferris J thought that that was too narrow a view, I suspect that it accords with the construction which most conveyancers would put on a covenant in this form, again a very familiar one'.
Secondly, Lord Donaldson of Lymington MR said, at 390C:
'The position in relation to covenant 20 is quite different. Once again I have to look to the object and to the words. It is not directed to the use being made of the property, that being the subject matter of covenant 24(2). It is directed instead at conduct in or upon the premises which causes or may cause nuisance, annoyance, danger or detriment to other owners … or occupiers of other parts of the estate or to the plaintiff. No complaint whatsoever is being made in relation to the conduct of the occupants in or upon the premises. The evidence relied upon as constituting a detriment to the plaintiff relates solely to the use of the premises made by the Secretary of State and amounts to no more than that in a buyers' market a particular purchaser was astute enough to use the general nature of that use as a lever to obtain a small reduction in the purchase price. There has been no breach of covenant 20'.
'No less to be taken into account is that parties to a conveyancing transaction, having entered into a covenant in a long established and familiar form, must have intended that it should have the effect which earlier authorities have said that it has.'
That observation is a pertinent one in the present case because (i) paragraph 2 is undoubtedly drafted 'in a long established and familiar form' (covenants in essentially similar form can be found in the Encyclopaedia of Forms and Precedents, 2nd edition, 1925, Volume XV, page 874; and 5th edition, 2007 reissue, page 226); and (ii) it can also be said to have received a judicial consideration adverse to Mr Weekes' argument. The authority is Romer J's decision in Wood v. Cooper [1894] 3 Ch 671.
'To erect or build, or cause or permit to be erected or built upon the said piece or parcel of ground hereby appointed and demised, or upon any part thereof, any other building whatsoever save and except a stable and coach-house'
and (b):
'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 the tenant of the lessor parties'
'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 40 Ch D 80. In the first place, to adopt the language of Lord Justice Cotton, 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, 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 Justice Bowen, " '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."
I have come to the conclusion, therefore, that this is a clear breach of the last-mentioned covenant as well as of the first, and on both grounds I think the Plaintiff is entitled to succeed.'
Discussion of the reach of paragraph 2
Does Mr Davies have a written approval under paragraph 1?
'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 addition [sic] 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 Peverel OM that your boundary lines are not being altered in relation to the work. I note that you have submitted a surveyor's 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.' (Emphasis supplied)
'… the working drawings from [the] architect. We will need this to ensure the extension is in keeping with the existing properties on the island. These will also need to be inspected by the surveyor who I have now approached and he is happy to complete the survey in order for him to assess measurements etc.'
'I understand that there has been some opposition to this application and as a result I have sought further advice from our senior management team. They have now advised that legally, we would have no grounds to unreasonably withhold consent for this application providing that the applicant is able to satisfy certain criteria. The crucial clause which dictated the reasoning and rationale behind the decision is outlined in Schedule 3, 1 of the Freehold Transfer Document.
The planning stage of the application which is overseen by the local council should have been the main recourse for objection by those affected by the proposal.
[The letter then set out the covenant in paragraph 1 of the Third Schedule]
In effect, this clause merely states that the extension must be in keeping with the submitted plans.
We have asked Dunster & Morton Chartered Surveyors … to carry out an inspection of the project as an independent third party to ensure that the proposed extension work does not compromise or alter any of the private estate boundaries. Please note that the cost of this is being covered by the applicant and not your service charge.
Should you wish to make any comments regarding this decision or any legal interpretations of property transfer and covenants, I kindly request that any representations are sent in writing to our Luton office for the attention of our Company Solicitor, Mr Richard Sandler.'
'112. … 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.'
Lord Justice Wilson :
Lord Justice Ward :