Most people will think of an ‘annoyance or nuisance’ covenant as applying solely to activities carried out on a property (eg disturbance coming from a building). But, that is wrong, since the covenant can also cover the erection of the building itself.

Properties on an 1980s estate were subject to covenants not to do anything that would be ‘a nuisance or annoyance’ to the owners or occupiers for the time being of the other properties. One of the property owners got planning permission for a three-storey side extension to his property, and the question then arose as to whether or not the erection of that extension was prevented by the covenant. The houseowner argued that it did not; in his view, it only applied to activities on the property and, in any event, if there was a nuisance it was too trivial to amount to a breach of covenant. The CA disagreed. In its view, the test to be applied was whether reasonable, sensible people would, having regard to the ordinary use of the house for pleasurable enjoyment, be annoyed or aggrieved by the building extension. This would have to be decided on ‘robust and common-sense standards’. In the CA’s view, the extension, once built, would be capable of continuing to be an annoyance and thus the annoyance covenant could be used to stop the erection of a potentially annoying building.

Obviously, cases of this sort are very dependant on their own facts (in this case, the extension would have partially blocked a view of the Thames, which seems to be why all the neighbours were particularly upset). But, the clear point that emerges from this is that a developer cannot simply ignore an ‘annoyance or nuisance’ covenant on the basis that it does not apply to the erection of a new building and will only apply to the use to which the new building is put. That is wrong. Thus, in the right circumstances, an ‘annoyance or nuisance’ covenant can be used to prevent new building works. See Davies v Dennis [2009] EWCA Civ 1081 (access free at www.practicalconveyancing.co.uk).