Davies v Dennis & Others

 

The Message

Covenants restricting a nuisance or annoyance may prevent building works on an estate even where the works may have been approved by the estate’s management company.

The Case

Davies v Dennis & Others concerned an attempt to use a restrictive covenant not to do anything which may be a nuisance or annoyance to prevent the construction of an extension to a house.

The case concerned a residential development of three-storey houses on Heron Island in the River Thames. A particular feature of the development was its closeness to the river and the views that each house had of the Thames. Such views were gained by deliberately designed gaps between the houses.

The developer of the estate sold the houses by materially identical transfers. Mr Davies bought one of the houses. Davies was obliged to the developer, the management company for the estate and the owners of the other houses to observe and perform certain restrictive and other covenants. The key ones were not to erect on his plot any building, except in accordance with plans approved in writing by the management company, and not to do on the plot anything which may be or become a nuisance or annoyance to the owners or occupiers of the estate.

In October 2005 Davies obtained planning permission to build a three-storey side extension to his house. Work commenced in May 2007 but was later stopped following complaints from Mr and Mrs Dennis and other neighbours. The neighbours asserted that the proposed extension was not approved by the management company and, even if it had been approved, it would cause the neighbours a “nuisance or annoyance” in breach of the restrictive covenant.

The neighbours complained that the extension would reduce their views of the river. Proceedings were brought in the High Court by the neighbours against Davies. Central to the argument was whether the covenant not to do anything which may be a nuisance or annoyance applied to the erection or extension of a building. Davies argued that it did not, but the High Court disagreed. Having held that the covenant did extend to restraining the erection of buildings which may be a nuisance or annoyance, the Court had to decide whether Davies’ proposed extension would, in fact, be or become a nuisance or annoyance to the neighbours. The judge held that it would for certain of Davies’ neighbours.

Davies appealed against this decision. The Court of Appeal was asked to decide whether the covenant against nuisance or annoyance was capable of applying to the erection of a building. They were not asked to review the correctness of the factual conclusion arrived at by the lower court – if they held that the covenant was capable of applying, the decision of the lower court on that issue would stand.

The Court held that the ordinary construction of the nuisance covenant was 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 an annoyance. Davies argued that since there was a specific covenant dealing with approval by the management company to buildings, if such an approval is given, there can be no scope for a separate challenge by a house owner to the building on the basis it is a nuisance or annoyance.

The Court dismissed that argument, stating that it could see no sound reason why the giving of approval by the management company should impliedly stop a house owner from asserting that, despite such approval, the proposed building would constitute an actionable “annoyance”. Had this been the parties’ intention, this would have been stated expressly. As it was, the Court found that no such approval was given by the management company.

Since the Court agreed with the lower court that the nuisance covenant could apply to the extension and the lower court had decided on the facts that the extension breached the covenants, Davies’ appeal was dismissed. The injunction granted by the lower court restraining Davies from carrying out the extension stood.