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Cite as: [2015] EW Misc B28 (CC)

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Case No: B80LS039


The Court House
Oxford Row
Leeds LS1 3BG
17 September 2015

B e f o r e :

His Honour Judge Behrens


- and -



Paul Wilson (instructed on a direct access basis) for the Claimants
Paul Lakin (instructed by Burr Sugden) for the Defendants
Hearing dates: 7 – 9 September 2015



Crown Copyright ©

    Judge Behrens :

    1. Introduction

  1. Heather View is a housing development dating from the mid 1970's centred on a cul-de-sac in Eldwick, near Bingley. The Claimants are the freehold owners of numbers 1, 3, 4 and 5 Heather View, and the Defendant ("Mr Firth") is the freehold owner of the remaining property, 2 Heather View.
  2. 2 Heather View was the first property to be sold from the development by the developer, James Philip Taylor ("Mr Taylor"). It is subject to restrictive covenants against building ("the building covenant") and against permitting the property to be used to cause a nuisance or annoyance ("the annoyance covenant").
  3. On 21st July 2011 Mr Firth first obtained planning permission for the construction of a single storey bungalow within the grounds of 2 Heather View. That permission was renewed in November 2014. The Claimants contend that the construction of the bungalow would breach each of the above restrictive covenants. Mr Firth contends that there would be no such breach.
  4. In summary he contends that there are two reasons why there is no breach of the building covenant. First he contends that he has the consent of a surveyor appointed by Mr Taylor's executors and that is sufficient to comply with the covenant. Second (and in the alternative) he contends that the building covenant lapsed with the death of Mr Taylor. In the event that he is wrong about the construction he contends that the covenant is subject to an implied term that consent will not be unreasonably withheld and that the Claimants' refusal to consent is unreasonable.
  5. He also contends that the construction of the bungalow would not amount to a nuisance and annoyance within the meaning of the annoyance covenant.
  6. These proceedings were commenced in the High Court on 28th April 2014. The Claimants seek declarations under s 84(2) of the Law of Property Act 1925 ("the 1925 Act") that the covenants are enforceable by the Claimants and that the construction of the proposed bungalow is prohibited by each of the covenants. For the reasons I have summarised Mr Firth disputes that the Claimants are entitled to any of the declarations they seek and has Counterclaimed (so far as necessary) for a declaration that the Claimants refusal to consent to the variation of the building covenant is a breach of the implied term of the covenant.
  7. Three witnesses were called on behalf of the Claimants - Professor Tupholme, Mr Parker, and Mr Howard. In addition I read a statement from Mrs Newby who is almost 90 and not able to attend. Mr Firth gave evidence on his own behalf.
  8. I have the benefit of a report from a joint expert Fineline Architectural Design Ltd ("FAD") dated 28th April 2015. FAD's report contains site information including the dimensions of the new bungalow. It contains plans of the existing 5 dwellings in Heather View and the new bungalow. It also contains some computer generated images showing the effect of the proposed bungalow to views from various aspects of the Claimants' respective properties.
  9. At the conclusion of the evidence I visited the site and was shown both inside and outside of each of the Claimants' properties. Thus I could see for myself the views enjoyed by each and form my own view of the effect of the proposed bungalow.
  10. It is important to note that this case is concerned with the enforceability of the covenants under s 84(2) of the 1925 Act. It is not concerned with the power of the Upper Tribunal (Lands Chamber) ("the UT") to modify or discharge the covenants under s 84(1) of the 1925 Act.
  11. 2. The facts

    The site
  12. Heather View is located to the east of Eldwick, a small village just off the main road from Bingley to Baildon. The elevated village falls from north to south. Heather View is a cul-de-sac off Glen Road.
  13. There are 5 dwellings on Heather View. Heather View runs approximately from north to south. The layout of the dwellings is shown on the key plan attached to the FAD report shown below. Two properties (Nos 1 and 2) lie to the east of Heather View, the other 3 (Nos 3, 4 and 5) lie to the west. Nos 1 and 2 are two storey buildings. Nos 3, 4 and 5 are bungalows. As can be seen from the plan the proposed dwelling is at the northern end of the land comprised within No 2 just to the south of the boundary between No 1 and No 2.
  14. Picture 1

  15. The whole of the site area comprises 1.4 acres. The buildings are each constructed using quality materials and sit within large garden plots. The boundary between No 1 and No 2 is delineated by a beech hedge which varies from approximately 1.82 metres high at the north west corner of No 2 to 2.20 metres high at a point adjacent with the middle of the three birch trees in the garden of No 1. There is a hedge to the west of No 1 and a hedge at the north west corner of No 2. Part of this hedge will be removed to permit vehicular access to the proposed dwelling.
  16. There are hedges between Nos 3, 4 and 5 and also to the east of Nos 4 and 5. The hedge to the east of No 4 was measured (from the road side) at 2.37 metres high
  17. The FAD report contains a table showing the area of the site in comparison with the footprint of the dwelling:
  18.   Site area (m2) Dwelling area (m2)
    1 Heather View 1198 118
    2 Heather View 1262 156
    3 Heather View 1168 240
    4 Heather View 800 223
    5 Heather View 674 213

  19. As can be seen from the plan 2 Heather View is situated at the southern end of Mr Firth's site. The proposed bungalow is at the northern end just to the south of the hedge separating 1 Heather View from 2 Heather View. The footprint of the proposed bungalow is 186 m2. The area of the site is 443 m2 leaving the remainder of 2 Heather View with 818 m2.
  21. It is no part of the Claimants' case that Heather View is a totally rural location. It is an elevated cul-de-sac within a village environment. The aerial view in the FAD report shows a number of other houses in the vicinity. It also shows as Professor Tupholme pointed out large areas of undeveloped land. Due to its elevated position many of the properties have views to the south and east over Baildon Moor and to Saltaire. It may be that the name "Heather View" was deliberate.
  22. The development
  23. The development of the 5 dwellings in Heather View took place between 1973 and 1975. The developer was Mr Taylor. The dwellings were all constructed by a local builder – Brian Kay who was also the purchaser of 2 Heather View.
  24. The history of relevant purchases of the 5 properties is set out in the following table:
  25. Property Date Event
    1 Heather View 13 Feb 1974 Conveyance to Professor and Dr Tupholme
    2 Heather View 21 Jan 1974 Conveyance to Mr Kay
      16 Jul 2008 Mr Firth becomes registered proprietor.
    3 Heather View 26 Mar 1975 Conveyance to Mr and Mrs Newby
    4 Heather View 2 Dec 1975 Conveyance to Mr and Mrs Parker
    5 Heather View 3 Aug 1975 Conveyance to Mr and Mrs Calloway
      12 Jun 2000 Mr and Mrs Howard become registered proprietors

    Restrictive Covenants
  26. Each of the conveyances from Mr Taylor contains materially identical covenants. The material parts of the covenants in the Conveyance of 21 January 1974 ("the 1974 Conveyance") are contained in clauses 3 and 4 which provide:
  27. 3 For the benefit and protection of the adjoining or neighbouring properties now or formerly of the Vendor so that this covenant shall be binding on the property hereby conveyed into whosesoever hands the same may come the Purchaser for himself and his successors in title hereby covenants with the Vendor that he and his successors in title will at all times hereafter observe and perform the following restrictions and stipulations:-
    (i) That he will not carry on or permit to be carried on on the property hereby conveyed any trade or business of any description nor use nor permit the same to be used for any purpose which may cause a nuisance or annoyance to the Vendors or to the Adjoining or neighbouring owners or occupiers…
    (iii) That he will not erect on the property hereby conveyed any building of any kind whatsoever either temporary or permanent without first obtaining the written consent of the Vendor's Surveyor…
    (ii) that the Vendor or his successors in title owners of the adjoining or neighbouring properties remaining unsold may at any time release or vary any of the said aforesaid provisions and restrictions and the covenant by the Purchaser in respect thereof shall not operate to impose any restriction on the manner in which the Vendor may deal with any of the adjoining or neighbouring properties or to be deemed to create a building scheme…
  28. It will be necessary to consider the effect of these provisions later in this judgment.
  29. The proposed development
  30. Mr Firth has made a number of attempts to obtain planning permission for the development of the northern part of the garden of No 2. Early attempts involved the construction of a two storey dwelling and were turned down.
  31. In July 2011 he was granted permission for a one storey bungalow. That permission lapsed after 3 years but was renewed in November 2014. The 2014 permission was based on the same plans as the 2011 permission.
  32. Each of the applications was opposed by the Claimants. However, as noted above permission was granted.
  33. The permission contemplates that the bungalow will be constructed using elements of natural stone but with large panels of sand/cement render, concrete roof tiles and UPVC fascias and gutters. When he gave evidence Mr Firth told me that he no longer intended the panels of render. Instead he would use stone. It was his intention to apply for any necessary amendment to the permission.
  34. The site layout can be seen from the plan prepared by FAD
  35. Picture 2

  36. As can be seen the maximum height of the bungalow (the chimney) is 6340 mm only 115 mm lower than the height of No 2 at 6455 mm. More importantly the northern gable end (at 5170 mm) is significantly higher than the boundary hedge between No1 and No 2 (between 1820 and 2200 mm).
  37. Another feature to which my attention has been drawn is the single garage at the northern end of the bungalow facing Heather View. A number of points have been made. First it is only a single garage whereas all the other properties have double garages. Second there is only room for one car between the garage and the road. All of the other properties have space for a number of cars. This is said to be likely to give rise to problems with people parking on the road. Third, as already noted, there would be need to be made a gap in the hedge to allow access to the garage.
  38. During the cross-examination of Professor Tupholme my attention was drawn to the planning officer's report dated 21st July 2011 prior to the grant of permission. In his report the planning officer noted that the new bungalow was in close proximity with the boundary of No 1. However he noted the presence of the beech hedge over 2 metres high and pointed out that No 1 itself was more than 20 metres from the boundary and thus would not suffer from any overlooking or overshadowing.
  39. He considered that the reduction from two storeys to one storey reduced the impact of the new building, that it was more in keeping with Nos 3, 4 and 5 Heather View and that it reflected some of the design features of Nos 3, 4 and 5 – particularly the chimney feature. He concluded that with appropriate materials the proposed building would sit appropriately into the site and respect the local character in particular the bungalows at 3, 4 and 5 Heather View.
  40. Death of Mr Taylor and consents.
  41. Mr Taylor died on 19th June 1992. On 17 September 1992 a grant of probate of his estate was made to the two executors – his widow, Mrs Taylor and his solicitor Terence Cowdell. In the events that happened and subject to legacies in favour of his two sons the residue of the estate valued at over £800,000 passed to his widow – Mrs Taylor.
  42. There is no evidence that Mr Taylor appointed anyone during his lifetime to act as his Surveyor for the purpose of the covenant in clause 3(iii) of the 1974 Conveyance.
  43. On 13th May 2013 two documents were signed – one by Mrs Taylor and the other by Simon Paxford of SKP Design Services.
  44. Mrs Taylor confirmed that as one of the two executors of Mr Taylor's will she appointed Mr Paxford as Surveyor for the purpose of the restrictive covenants in the 1974 Conveyance. [In his document Mr Paxford suggests that he was appointed by both of the executors but nothing turns on this.]
  45. Both Mrs Taylor and Mr Paxford state that they have seen and given full consideration to Mr Firth's proposed plans for the construction of the bungalow. They note that planning permission has been given for the development. In those circumstances they each gave full and free consent to the proposed development.
  46. The views of the Claimants
  47. As an appendix to this judgment I have included a number of photographs taken in the main from the FAD report showing the effect of the proposed bungalow on the Claimants' properties. A number of points can be made about the photographs. First they are winter photographs. It is not in dispute that there would be more screening in summer. I had the opportunity to see the position in summer. Second they do not present the full picture. At the view I was shown a number of other views that are affected by the proposed bungalow. Third it was suggested that the effect of the bungalow would be less if, as is now proposed, there was no render but stone covering.
  48. Professor and Dr Tupholme – No 1
  49. Professor and Dr Tupholme's views are contained in paragraphs 18 to 22 of Professor Tupholme's witness statement:
  50. 18. I now refer to the photographs contained in the exhibit marked GET5, which were all taken by the second Claimant except that the fourth Claimant took those from within No. 4. In my view it is obvious from the photographs presented that the Claimants' distant and nearby views would be severely marred by any such proposed development. It would be clearly visible over the existing deciduous hedges and through them in the dormant season; and of course there is nothing to prevent the existing hedges from being removed entirely in the future anyway.
    19. Moreover, the loss of this portion of the mature garden of No. 2 would be extremely detrimental to the serene ambience and rural street scene of Heather View.
    20. The proposed development would block the extensive easterly and south-easterly views to the moors and to distant skyline from No. 1 Heather View. The more distant southerly view of No. 2 through the trees in the gardens of both properties would be replaced by a view of the side elevation of the proposed development.
    21. The hedge in the garden of No. 1 next to the boundary with No. 2 is less than 2.5 metres above the level of the garden of No.1. It is a deciduous hedge. It would not form an effective screen. The planned bungalow will be 6.34 metres high. It would be clearly visible from the ground floor of No. 1 and it will severely marr the views from the first floor windows.
    22. It will also severely overshadow and block the sunlight entering the southern part of the garden of No. 1 Heather View.
  51. The first four photographs in the appendix give an impression of the effect of the proposed bungalow.
  52. In cross-examination he largely maintained the views expressed in his witness statement. He disagreed with many of the views of the planning officer. He pointed out that whilst the house may be 20 metres from the hedge, the summerhouse (which can be seen on the right hand side of the first two photographs and in the key plan) is only 13 metres from the hedge. The hedge did not interfere with the views. He repeated his view that the new building would overshadow the southern end of the garden.
  53. At the view I had the opportunity of seeing the site from the garden, the south facing kitchen, dining room and lounge, and the upstairs bedrooms.
  54. Mrs Newby – No 3
  55. The first two photographs on the second page of the Appendix (taken at different times of the year) show the effect from No 3 looking north east up her drive from one of her bedroom windows.
  56. In her witness statement she puts the position in this way:
  57. 6. Any building such as that proposed would dramatically transform the street scene from its highly attractive rural setting to one of depressing mundane suburbia. It would severely undermine the spacious and open character of this high quality development.
    7. An overbearing effect would be created on the street scene and the benefited properties by the presence and proximity of any such development.
    8. The proposed development would be clearly visible from my property over the existing deciduous hedge and through it in the dormant season. I refer to the photograph attached and marked exhibit BMN5 showing the view from my front bedroom window. The more distant view of houses on Glen Road through the garden of 2 Heather View would be blocked with a dominating view of the proposed development. To have my longstanding views marred in this way would be most upsetting and would constitute a serious nuisance or annoyance to me.
    9. I would experience tremendous nuisance and annoyance by the close proximity to my property of a noisy and disruptive building site, and by the increased amount of traffic on our Heather View cul-de-sac and the extremely dangerous substandard Glen Road during the construction and thereafter.
  58. Mrs Newby was not cross-examined. At the view I saw the position from immediately in front of No 3 and from the front bedroom window.
  59. Mr and Mrs Parker – No 4
  60. The photographs in the Appendix show the position looking east from the front door of No 4. They clearly show the gap which will need to be made in the hedge for the new garage. Mr Parker's complaints are not limited to this view. There are in the bundle photographs from one of the two windows in his study both of which face east and from the corridor outside his bedroom.
  61. In his witness statement he put the position in this way:
  62. 15. The views from my property are a great source of pleasure and satisfaction to me. The first thing I do on rising each morning is to look out through our bedroom corridor window at Baildon Moor and enjoy the lovely uninterrupted view – see the attached photograph marked exhibit AP4 - which I then continue to find great pleasure in throughout the day.
    16. These views would be severely marred by the proposed development, as would those from our study – see the attached photograph marked exhibit AP5 - and from our garden/terrace and entrance – see the attached photograph marked exhibit AP6.
    17. I have known and enjoyed Baildon Moor since a boy (I am now approaching 80) and to have my view of it blocked by a cheap spec-built bungalow, shoehorned into an inadequate site and totally out of keeping with the other expensive Yorkshire Stone and Yorkshire Slate-roofed properties of Heather View does not bear thinking about.
    18. Any building, and especially this proposed eyesore, would not only be a nuisance and annoyance to me but it would very seriously reduce the quality of my life, as well as having a detrimental impact upon the value of my property.
    19. During the construction period, there would be immense nuisance and annoyance from having a noisy and disruptive building site so close to my home and entrance.
  63. In cross-examination Mr Parker strongly maintained those views. He refuted the suggestion that the views of Baildon Moor could not be seen from his study because of the height of the hedge. He said that he would have cut the hedge if that had been the position. He repeated his attraction to Baildon Moor and expressed the opinion that the view of Baildon Moor from his window was superior to that of the Thames from Richmond Hill. He considered that the new bungalow would severely impinge on the views from his house. He commented that he did not lead an active life and spent a lot of time in his study. He described the view as "very important to me".
  64. At the view I saw the view from each of his study windows and from the corridor outside the bedroom. I am satisfied that that the hedge does not block the view from any of the windows to Baildon Moor though it does partially block it from some positions. Certainly there is a limited view when sitting in the armchair. I am equally satisfied that the view would be reduced significantly by the proposed bungalow.
  65. Mr and Mrs Howard – No 5
  66. The final two photographs in the Appendix show the view taken from outside the conservatory of No 5 which can be seen on the key plan.
  67. In his witness statement Mr Howard's views are put in this way:
  68. 9. The views to the south-east from the windows of two bedrooms, the lounge, the dining room, and the conservatory of our bungalow, and from our garden and terrace, of the mature gardens of our neighbours and the moors and the distant skyline beyond would be severely marred by this or any such proposed development. I refer to the attached photographs marked exhibits JDH4 to JDH6. Exhibit JDH4 shows the view from our lounge and conservatory. Exhibit JDH5 shows the view from one of the bedrooms. Exhibit JDH6 shows the view from the other bedroom and the entrance.
    10. The Heather View cul-de-sac has retained its original highly desirable character and has not materially changed since it was first envisaged.
    11. We were very influenced into buying our property by the beautiful overall views and the spacious rural street scene in an extremely attractive setting.
    12. So much so that we have had a specially-designed, low-elevated window installed in the bedroom of our very severely disabled son to enable him to enjoy the uninterrupted magnificent views. He is wheelchair bound with cerebral palsy and spends many pleasurable hours peacefully looking through his window, alongside our two dogs.
    13. With the insertion of any building such as the proposed, almost all of his superb views would be drastically removed and thereby a lot of pleasure and satisfaction would be removed from his life.
  69. In cross-examination Mr Howard adhered to his views. At the view I saw the position from the conservatory, from the garden and from the lounge and the bedroom of Mr and Mrs Howard's son.
  70. Mr Firth's evidence
  71. In his witness statement Mr Firth sets out the history of his acquisition of No 2, his planning applications and the consents from Mrs Taylor and Mr Paxford. He expresses his view of the development in paragraphs 8 to 11:
  72. 8. The Claimants position, in so far as the nuisance covenant is concerned, is that the building of the bungalow will undermine the spacious and open character of the development, that the bungalow will have an overbearing presence and it would interfere with valued open view.
    9. The density of the building after erection of the bungalow would not be any greater than exists in relation to numbers 3,4 and 5 Heather View so I can not see how this would affect the 'spacious and open character' of the development.
    10. The bungalow will sit down in the site. It will not be overbearing and this is plain obvious from the artists impressions which occupany the planning application which was granted. My view is that the planning officers took all of these matters into consideration and considered whether construction would affect the overal amenity of the local area. If the bungalow was going to be overbearing then I would not have expected consent to have been granted.
    11. In so far as view are concerned, firstly, there is no right to a 'view'. It is clear that the bungalow would not and could not interfere with any open view that number 3 may have due to the position of that property. Any impact on numbers 4 and 5 would appear to be very limited due to the sizes of the hedges surrounding those properties and the limited view they have of my garden. In so far as number 1 is concerned, any view from the ground floor can not be interfered with due to the large hedge in situ. As the bungalow sits down on site, this would not interfere with any views from the first floor of number 1.
  73. In cross-examination Mr Firth repeated those views. He did not accept that Nos 3, 4 and 5 had views that would be seriously affected by the bungalow. He made the point that the bungalow was sensitively designed to take into account the problems of earlier applications. He pointed out that he now intended that the there would now be stone facing rather than rendering. He pointed out that the majority of the windows of the Claimants' properties faced south. He did not accept that there would be any significant overshadowing and drew my attention to the 3 large birch trees at the southern end of the garden to No 1. He estimated that when these were in full leaf there was 80% overshadowing of the southern end of the garden. He was pleased that I would have a view as I would then be able to assess these points for myself.
  74. At the view I was taken to see the garden to the south of No 2 so that I could enjoy the full and magnificent view to the south and east of the property without any intervening buildings.
  75. 3. Discussion

  76. It is convenient to start the discussion of the issues by setting out some areas of common ground between the parties.
  77. It is common ground that each of the Claimants is entitled to enforce the covenants in so far as they are enforceable. It is accepted that the opening words of clause 3 of the 1974 Conveyance are apt to annex the benefit of the covenants to Nos 1, 3, 4 and 5 Heather View.
  78. It is common ground that questions of construction have to be approached in the same way as the construction of other documents. The relevant principles were set out in the well-known speech of Lord Hoffmann in Investors Compensation Scheme Limited v. West Bromwich Building Society [1998] 1 WLR 896, where he said this at pages 912F-913F:
  79. "… But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v. Simmonds [1971] 1 W.L.R. 1381, 1384–1386 and Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows.
    (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
    (2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
    (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
    (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] AC 749
    (5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191, 201:
    "if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense." …"
  80. These principles have been discussed in numerous later cases including Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101 at [14]-[15] and [21]-[25] and Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900 at [21]-[30]. However in the light of the submissions made it is not necessary for me to refer to the later cases.
  81. The annoyance covenant
  82. It is convenient to deal with the annoyance covenant before dealing with the building covenant. Mr Lakin made a number of submissions in relation to the annoyance covenant. In summary he submitted that the covenant was concerned with activities which caused a nuisance or annoyance and not with the erection of buildings. If contrary to that submission the construction of the bungalow could be within the covenant the facts of this case are such that there is no nuisance and annoyance. Finally he submitted that the construction works and the fears about parking were not a nuisance or annoyance.
  83. The scope of the covenant
  84. The law relating to nuisance and annoyance covenants is derived from the decision of the Court of Appeal in Tod-Heatley v Benham 40 Ch D 81 and includes the decision of Romer J in Wood v Cooper [1894] 3 Ch 671. It was considered in detail by the Court of Appeal in Davies v Dennis [2009] EWCA Civ 410 which upheld a decision of mine [2008] EWHC 2961.
  85. The scope of such a covenant was considered in some detail by Rimer LJ in his judgment in Davies. He expressed his general conclusion in paragraph 33 of the judgment:
  86. 33. Paragraph 2 contains covenants in a form whose essence has long been familiar to conveyancers and I unhesitatingly accept Mr Hutchings' submission that the ordinary and natural construction of the purchaser's covenant in it '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' etc is sufficiently wide to be capable of extending to activities of all natures, including building an extension to an existing house which, when built, will be such an 'annoyance'. Romer J plainly assumed (although did not apparently have a contrary argument) that covenant (b) in Wood v. Cooper extended to restraining the erection of 'annoying' buildings and he held Mr Cooper to be in breach of it.
  87. Mr Lakin submitted that the wording in covenant in the 1974 Conveyance was different and that the fact that it followed on from a covenant restraining a trade or business coloured its construction.
  88. In those circumstances it is worth comparing the wording with the wording in Davies and Wood.
  89. In Davies the covenant was in the following terms:
  90. ". 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'
  91. In Wood the covenant was in the following terms:
  92. "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."
  93. In the 1974 Conveyance it is:
  94. "That he will not carry on or permit to be carried on the property herby conveyed any trade or business of any description nor use nor permit the same to be used for any purpose which may cause a nuisance or annoyance to the Vendors or to the Adjoining or neighbouring owners or occupiers…"
  95. To my mind there is no material difference between any of these formulations. It is to be noted that in Davies the critical covenant followed on an equivalent covenant forbidding any trade or business. In my view the words "use nor permit the same to be used" are equivalent to "do or suffer to be done" and the words "may cause a nuisance or annoyance" are equivalent to "may be or become a nuisance or annoyance".
  96. It follows, in my judgment, that the reasoning of Rimer LJ in paragraph 33 is just as applicable to this case as it was in Davies.
  97. It follows that I reject Mr Lakin's argument on the scope of the covenant.
  98. Breach of the Covenant.
  99. In paragraphs 98 to 99 of my judgment in Davies I formulated the relevant test in the following way:
  100. 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.
  101. That test was referred to without disapproval in the judgment in the Court of Appeal and both Counsel accepted it as appropriate.
  102. Mr Lakin made a number of submissions as to why there was no annoyance here. He pointed out that the facts of this case are different from those in Davies. In that case the view of the Thames was a central selling point. In this case the view was not mentioned in the initial sales particulars of Nos 1, 3, 4 and 5. He pointed out that the properties are orientated north to south and that there are very few windows that face east. The view to the south did not include Baildon Moor. He relied on the planning consent and the views of the planning officer in support of his submissions.
  103. Whilst I see the force of Mr Lakin's submissions I cannot accept them. As in the Davies case the Claimants' cases are not identical. Plainly Professor and Dr Tupholme have the strongest case; Mrs Newby has the weakest. Having seen the site and the photographs together with the computer generated images of the new bungalow I am quite satisfied that a reasonable person having regard to the ordinary use of No 1 for pleasurable enjoyment would be annoyed and aggrieved by the new building. It is so close to the boundary that it significantly detracts from the views to the south from the lounge, the first floor bedrooms and from the garden itself. I also accept that it will block sunlight entering the south of the garden far more than the existing hedge and the 3 birch trees. Whilst the use of stone facing by Mr Firth might improve the position slightly it would not, to my mind meet the objection of reasonable persons who were owners of No 1.
  104. I am equally satisfied that reasonable persons as owners of Nos 4 and 5 would be annoyed by the reduction of their views. Whilst it is true that each of these properties are orientated to the south each has views to the east and south east over Baildon Moor which will be significantly impaired. To some extent the view is limited by the hedges but I am quite satisfied that the views exist from the windows of the study and corridor of No 4 and the conservatory, lounge and bedroom windows of No 5. In my view the impairment to these views is significant. It may be that these properties were not originally marketed on the basis of the views. However the views from these elevated properties exist and were there to be seen.
  105. I am more doubtful about the objections of Mrs Newby as the owner of No 3. To my mind her case is very borderline. However in the light of my opinion in relation to Nos 1, 4 and 5 I do not need to reach a final decision on No 3.
  106. The building disturbance
  107. I was referred to the observations of Carnwath LJ in Shephard v Turner [2006] EWCA Civ 8:
  108. 62. In the present case, the appellants rely principally on a distinct form of covenant: one providing protection against acts causing "nuisance or annoyance". I agree with the appellants that such a covenant is intended to provide protection against temporary as well as long term annoyance, and further that it is not necessarily to be confined by analogy with the common law of nuisance. The cases give little guidance on the scope of such a covenant, other than that, like the law of nuisance, it is to be applied "according to robust and common sense standards" (per Megarry J, Hampstead and Suburban Properties Ltd v Diomedous [1969] 1 Ch 248, p 258). However, we have been referred to no authority in which ordinary construction works, carried out with reasonable care, have been held to involve a breach of such a covenant. Tod-Heatly was not such a case. (I note also that there appears to have been no finding to that effect by the Exeter County Court.) I do not think that such a covenant is to be equated with a covenant providing specific protection from construction disturbance.
  109. There is nothing in this case to suggest that the disturbance from the construction work would have been exceptional. Accordingly I would not have accepted the Claimants' claim on this basis.
  110. Parking
  111. Similarly fears in relation to possible parking in Heather View appear to me to be speculation or fanciful and would not have caused me to hold that there was a nuisance or annoyance. If after the bungalow had been built there was a problem with parking such as to constitute a nuisance or annoyance it would have been possible to deal with it by preventing the parking. It does not justify an injunction preventing the construction of the bungalow.
  112. The building covenant.
  113. The building covenant raises a number of issues some of which are by no means straightforward. In the light of my views on the annoyance covenant Mr Firth will not be able to build the bungalow. Any views I express on the building covenant will not affect that. However, as the matter has been fully argued and as a declaration is sought it is necessary to deal with the issues.
  114. It is self evident that the new bungalow is a building within the meaning of the covenant.
  115. The rival issues on the building covenant may be summarised:
  116. 1. Mr Lakin asserts that Mr Paxford was validly appointed as the vendor's surveyor by Mrs Taylor as the Vendor's successor in title. As such Mr Paxford validly consented to the building work and there is accordingly no breach of covenant. Mr Wilson contends that the right to appoint the surveyor was personal to Mr Taylor. It did not pass to his executors. Thus, the appointment of Mr Paxford was invalid and his consent is of no legal effect.
    2. Mr Lakin contends that on its true construction the covenant lapsed on the death of Mr Taylor and thus there is no breach of covenant. Mr Wilson contends that on the death of Mr Taylor the covenant became absolute with the result that there was no power (outside an application under s 84(2) of the 1925 Act) to construct any building on the site.
    3. Mr Lakin contends that it was open to Mrs Taylor, as the successor in title to Mr Taylor to vary or modify the covenant under clause 4(ii). The letter of consent signed by Mrs Taylor had the effect of modifying the covenant so as to permit the construction of the dwelling in accordance with the approved plans. Mr Wilson contends that on its true construction Mrs Taylor had no such power. She was not within the definition of "owners of the adjoining or neighbouring properties remaining unsold" in clause 4(ii). Accordingly, her consent is of no legal effect.
    4. In the alternative Mr Lakin contends that the Claimants have power to modify or to vary the covenants under clause 4(ii). Such consent cannot be unreasonably withheld. The refusal to agree to a modification is unreasonable. Mr Wilson contends that the Claimants are not within the definition of successors in title in clause 4(ii) for the same reason as Mrs Taylor. In any event the decision not to consent was not unreasonable.
  117. I can deal with the third and fourth issues quite shortly because I entirely agree with the submissions of Mr Wilson. In my view the words "owners of the adjoining or neighbouring properties remaining unsold" clearly refer to and qualify the expression "the successors in title". A reasonable person having all the background knowledge which would reasonably have been available to the parties in 1974 would in my view clearly have taken that view. As there was no unsold neighbouring land no one could qualify as a successor in title within the meaning of the clause. It follows that neither Mrs Taylor nor the Claimants could validly consent to a variation. In the light of my views on the annoyance covenant it would not in my view have been unreasonable for the Claimants to refuse to consent.
  118. The first two issues are far more difficult and are the subject of significant authority.
  119. The appointment of Mr Paxford
  120. It will be recalled that clause 3(iii) refers to the consent of "the Vendor's surveyor". Mr Paxford was appointed by the Vendor's executors and thus the critical question is whether the Vendor as a matter of construction includes his personal representatives.
  121. A number of points can be made. First Mr Taylor is defined in the 1974 Conveyance as being "the Vendor" without any reference to his successors in title. Second the 1974 Conveyance makes express reference to successors in title in a number of places and no reference in others. Thus in clause 3 there is a reference to the successors in title of the Purchaser and in clause 4(ii) there is express reference to the successors in title of the Vendor (albeit with the qualification "owners of the adjoining or neighbouring properties remaining unsold").
  122. A similar situation arose in City Inn (Jersey) v Ten Trinity Square [2008] EWCA Civ 156. At paragraph 8 of the judgment Jacob LJ said:
  123. 8. It is obviously a strong thing to say that where a draftsman has actually defined a term for the purposes of his document that in some places (but not others) where he uses his chosen term he must have intended some other meaning. It is not impossible, however. If, approaching the document through the eyes of the intended sort of reader (here a conveyancer), the court concludes that notwithstanding his chosen definition the draftsman just must have meant something else by the use of the term, it will so construe the document. Such a conclusion will only be reached where, if the term is given its defined meaning the result would be absurd, given the factual background, known to both parties, in which the document was prepared. Nothing less than absurdity will do – it is not enough that one conclusion makes better commercial sense than another.
  124. In Margerison vBates [2008] EWHC 1211 (Ch) Mr Barclay-Jones QC applied a test of whether there had to be "an imperative necessity" to depart from the meaning ascribed in the definition in the Conveyance.
  125. In the light of that guidance it seems to me that there is no absurdity or imperative necessity to depart from the definition in the Conveyance. It follows that the reference to "the Vendor's Surveyor" in clause to 3(ii) is a reference to Mr Taylor's Surveyor and not to a surveyor appointed by Mr Taylor's executors. It follows that the appointment of Mr Paxford was not valid. In my view that is the meaning which reasonable persons would ascribe to clause 3(ii).
  126. Did clause 3(iii) lapse or become absolute on the death of Mr Taylor?
  127. I have to confess that I have found this the hardest of the issues that arise in this case. Mr Wilson warned me against placing too much weight on authorities based on covenants with different wording. I see the force of that submission. Nevertheless it is an area of law where there is significant authority which needs to be considered.
  128. The decision in Crest Nicholson v McAllister [2002] EWHC 2443 (Ch) and [2004] EWCA Civ 410 concerned the sale of plots of land for building purposes. The conveyance included a covenant:
  129. No dwelling house or other building shall be erected on the land hereby conveyed unless the plans drawings and elevation thereof shall have been previously submitted to and approved of in writing by the Company but such approval shall not be unreasonably or vexatiously withheld;
  130. One of the issues that arose was the effect of the dissolution of the Company. In paragraphs 34 to 37 of his decision Neuberger J cited 3 earlier decisions including a decision of the Court of Appeal in Bell -v- Norman C Ashton Limited (1956) 7 P & CR 359 where the Court held that in the absence of the Vendor there was no dispensing power and the covenant became absolute. In paragraph 38 he said he found the construction both surprising and unsatisfactory at least in the context of the covenant. In the result the covenant was discharged. Paragraphs 39, 47 and 54 and 55 represent the heart of Neuberger J's reasoning:
  131. 39. It appears to me very unlikely that the parties to each of the original conveyances of the claimant's land could have envisaged that, if and when the Company ceased to exist, the second covenant could become absolute in its effect. The second covenant is not actually concerned with the number or type of buildings which can be erected or the use to which it (or they) can be put: that appears to me to be primarily governed by the first covenant (and indeed by paragraph (1)). The second covenant is simply concerned with giving the Company a degree of control over the plans drawings and elevation (hereinafter "plans") of any building which is proposed to be erected on a plot. Thus, if there was a desire to rebuild a dwelling house which had burned down, or to erect an ancillary building to an existing dwelling house, the question whether the covenantor was entitled to put up the number or type of buildings he wished to erect would be governed by paragraph (1), the first covenant in paragraph (2), and, to an extent, paragraph (3). The second covenant would only be concerned with the approval of the plans of any such new building.
    47. Thus, as I see it, (a) the second covenant was purely concerned with the approval of plans for buildings whose number and use was limited by the first covenant, and whose location is limited by paragraph (3), (b) the approval of the Company to any plans could not be unreasonably withheld, and (c) the terms of the second covenant were legally unenforceable against the Company by those owning land to which it was annexed. Accordingly, I consider that the claimant's contention is, at least on the arguments so far considered, much more sensible and realistic, indeed far more likely to have accorded with the intention of the parties to the original conveyances of the claimant's land, than that of the defendant.
    54. In all the circumstances, it appears to me that, if the Company ceases to exist, the second covenant is discharged. I am doubtful whether this involves implying a term as much as interpreting the second covenant in its context. However, if it does involve the implication of a term, I am satisfied that the five tests identified by Lord Simon are satisfied in respect of the implied term contended for by the claimant. In essence, the reasons for my conclusion have already been expressed, but it is right that I should expand on them a little. The overriding point is that, when read in the context of the rest of the five covenants, and in particular the first covenant with which it is so clearly linked in paragraph (2) itself, it seems to me that, if the exception to the prohibition in the second covenant is discharged because the Company has been dissolved, then the prohibition is discharged as well. The prohibition and the exception are so intimately bound together that if one goes, so does the other.
    55. More particularly, when the second covenant is read in the context of the other covenants, the second covenant was intended to give the Company a right of veto (which right could only be exercised on reasonable grounds) in relation to the plans for any building to be erected on the plot. Given that any such building must, in any event, comply with the first covenant in paragraph (2), and indeed with the four other covenants, I do not consider that the parties could have intended that the second covenant could become absolute. After all, the other covenants specifically govern the number, use and type of buildings which can be erected, whereas the second covenant is merely concerned with approval of plans.
  132. When the matter reached the Court of Appeal this point was dealt with in two sentences in the judgment of Chadwick LJ who said (obiter) that he saw no reason to differ from Neuberger J's conclusions for the reasons he had given.
  133. It is self evident that Crest is not on all fours with this case. In this case No 2 had been constructed at the time of the 1974 Conveyance. The covenant in clause 3(iii) does not refer to plans for building work. It restricts building. There is no obvious linkage between clause 4(ii) and the other covenants.
  134. The decision in Crest has been referred to in 3 subsequent decisions at first instance – Margerison, Churchill v Temple [2010] EWHC 3369 (Ch) and Seymour Road v Williams [2010] EWHC 111 (Ch).
  135. In Margerison an owner of a dwellinghouse sold off part of the garden to be developed as a bungalow. The conveyance contained two relevant restrictions:
  136. (a) "Not to erect or build anything save one bungalow (of which the ridge height shall not exceed 20 feet) … and not to use any such bungalow for any other purpose than as a private dwellinghouse or the professional residence of a medical practitioner or dentist. The said bungalow and buildings shall be erected only in accordance with plans and elevations to be first submitted to and approved by the Vendor in writing … and on such site as she shall first approve.
    (c) Not to make any addition or enlargement or alteration to the said bungalow [i.e. the Bungalow] outbuildings and motor garage without plans having been first approved by the Vendor and her consent thereto signified in writing such consent not to be unreasonably withheld".
  137. As already noted Mr Barclay-Jones QC held that the approval could only be granted by the Vendor herself. In paragraphs 48 to 52 he considered whether the covenant was discharged by reason of the death of the Vendor and held that it was. His reasons are contained in paragraph 51. Although the judge gave 5 reasons for his conclusion it is only necessary for me to refer to the first reason. He considered that a literal meaning of the covenant flouts commonsense and could not have reflected the intention of the parties to the contract. He cited as examples damage to the bungalow by fire, or the necessity to remedy a minor defect to the roof. It would be strange, if not perverse if following the death of the Vendor the bungalow could not be added to, enlarged or altered in any way.
  138. Although there are differences between the facts of Margerison and this case, this reasoning would apply just as much to the covenant in the 1974 Conveyance as to that case. Once the bungalow had been erected under covenant 2(a) its owner was in much the same position as Mr Firth.
  139. In Churchill there was a sale of building plot subject to 3 relevant covenants. It is not necessary to set them out in full. The first limited the development to a single private dwellinghouse. The second restricted the erection of the dwellinghouse not in accordance with plans approved in writing by the Vendors or their surveyor such approval not to be unreasonably withheld. The third prevented any structural alteration or addition to the dwellinghouse without the written consent of the Vendors or their surveyor. One of the issues before Mr Strauss QC was the effect of the death of the vendors. He concluded that the covenant was discharged. Paragraphs 48 to 50 represent the basis of his decision:
  140. 48. However, if unconstrained by previous authority, I would unhesitatingly hold that this is not the correct construction of these provisions. Otherwise, Mr. and Mrs. Strong's death would put subsequent owners in the same position as they would have been in if the covenants had been with their successors. Indeed as regards paragraph 4 they would be in a better position, since consent could be refused for a bad reason or for none at all.
    49. In my opinion, a straightforward application of Lord Diplock's dictum in Antaios leads to the conclusion that paragraphs 4 and 5 do not operate as absolute bars once Mr. and Mrs. Strong have died, but on the contrary that these paragraphs become ineffective. Otherwise, for example, if they had died in an accident before construction had commenced, the position would be that Professor and Mrs. Taylor had bought a building plot, on which they now could not build. Equally, even in circumstances in which both died long after the Conveyance after a full life, as they did, from that moment on there would be an absolute bar against any structural alteration of any kind whether for reasons of convenience or safety. They or any subsequent owner would be barred, if the defendants' argument were correct, not only from demolishing the building but also from adding a porch or a conservatory or a new chimney. Once Mr. and Mrs. Strong had died, the owner of 1A could be held to ransom by the owner of Wych Elms, subject only to the possibility of making a section 84 application. This would be absurd, and the terms of the Conveyance cannot sensibly be construed to mean this.
    50. I would therefore hold, if free to do so, that the parties plainly did not intend what they have said, and that their loose language must, applying Lord Diplock's dictum, yield to commonsense. The reasonable outside person, equipped with the relevant background knowledge, as such part of it as is available to the court, would read this covenant as one which applied only in the lifetime of the vendors.
  141. Although there are differences between the covenant in that case and those in clause 3(iii) of the 1974 Conveyance much of this reasoning could apply to this case and to my mind is compelling.
  142. I can deal with the decision in Seymour Road quite shortly. It too turned on the construction of a covenant which I do not need to set out. Peter Smith J favoured the observations of Neuberger J in Crest. On the judge's construction of the covenant once the Society was dissolved it ceased to have any interest in enforcing the covenants. Accordingly there was no sense in ripening the covenant into an absolute covenant when no-one was in a position to give the consents or variations contemplated by the covenants.
  143. I have set out the above authorities in some detail because the reasoning is of considerable assistance in interpreting the covenant in clause 3(iii). It is true, as Mr Wilson pointed out that there are differences between each of the covenants and the covenant in clause 3(iii). In none of the other cases was the house/bungalow built at the time of the Conveyance. The covenant in clause 3(iii) prevents the erection of new buildings temporary or permanent. It does prevent alterations to existing buildings.
  144. However in each of the later cases the judge has held that it was not the intention of the parties that there should be no building at all after the death of the vendor. For my part like them I find that reasoning compelling. I think this view is also supported by the provisions of clause 4(ii). This clause only permits modification by persons other than the Vendor whilst the neighbouring properties remain unsold; the restrictions are not intended to impose any restriction on the way Mr Taylor dealt with the neighbouring properties and did not create a building scheme. All of this supports the relative short term nature of the covenant in clause 3(ii).
  145. In those circumstances I agree with Mr Lakin that the covenant in clause 3(iii) lapsed on the death of Mr Taylor.
  146. 4. Conclusion

  147. I would declare that the erection of the proposed bungalow would be a nuisance and annoyance within the meaning of the covenant in clause 3(i) but would not be a breach of the covenant in clause 3(iii) because it lapsed on the death of Mr Taylor.
  148. Picture 3
    Picture 4

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