In a recent case, the High Court has held that the construction of a house extension breached a restrictive covenant against nuisance and annoyance. In addition to home owners looking to extend their property, this case will be of particular interest to developers looking at the suitability of a site for development.

The case related to a property on an estate of three-storey houses close to the River Thames. Each house had a waterside frontage and the estate was laid out so that each house had river views. One of the owners obtained planning permission to build a three-storey side extension to his house. After work had started, several adjoining owners claimed that the extension was in breach of the “nuisance and annoyance covenant” contained in the original Transfer of each of the properties, as the extension would wholly or partially obscure their river views and would diminish the value of their properties. The homeowner argued that he was not in breach of the “nuisance and annoyance covenant” because it only applied to his activities rather than the building itself and if there had been any annoyance, it was too trivial to amount to a breach of covenant.

A valuation report produced to the Court did not identify any significant loss in market value to the adjoining properties as a result of the extension and so the main issue for the Court to determine was whether the loss of view amounted to an annoyance in breach of the “nuisance and annoyance covenant”. The Court held that the extension would constitute such an annoyance which could apply to the erection or alteration of a building. The Court said that the test is whether “reasonable, sensible people would, having regard to the ordinary use of the adjoining houses for pleasurable enjoyment, be annoyed and aggrieved by the extension”.

This case demonstrates that developers need to ensure that a proposed development is permitted from both a title and planning law perspective. In this case, the fact that the homeowner had obtained planning permission for the extension did not prevent the Court from ruling that the loss of view would be significant and therefore in breach of the “nuisance and annoyance covenant”.

As with many cases of this nature, the Court reached their decision based on the precise wording of the covenant and so advice should always be obtained before applying this decision to other circumstances. There may be several options open to a developer faced with this situation including obtaining indemnity insurance, seeking a release or waiver of the restrictive covenant or applying to the Lands Tribunal to have the restriction discharged or modified.