Would your house extension cause annoyance or nuisance?

Dated:   

The High Court recently heard the case of Dennis and other v Davies [2008] WHC B20 (Ch) regarding the construction of a house extension which breached a restrictive covenant against nuisance and annoyance.

A developer built a housing estate close to the Thames which consisted of 47 3 storey houses. Each house had river views and a waterside frontage. When the developer sold the houses each transfer contained restrictive covenants in favour of the developer and the management company and the owners of any part of the estate.

The covenants were:
  • Not 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
  • 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

The defendant obtained planning permission for a 3 storey side extension to his home. Following this he approached the management company for consent. The management company responded by email saying that consent can be given if professional drawings confirmed that the extensions was in line with the existing properties and that an Independent RICS surveyor confirmed that boundary lines had not been altered in relation to the work.

Other residents in the estate (claimants) opposed the planning application and the management company's consent.

The defendant started work in May 2007, but this had to be put on hold when the claimants said that the extension was in breach of the nuisance and annoyance covenant clause and the permission covenant.

The claimants stated that the extension would obscure their river views and diminish the value of their properties. They also said that the management company had not approved the plans and elevations.

The defendant argued that if there was annoyance it was too trivial to amount to a breach of covenant and that permission had been granted albeit by email.

The High Court had to then decide whether the loss of view amounted to an "annoyance" in breach of the nuisance and annoyance covenant.

The Court held that on the basis that the ordinary use of the house is for pleasurable enjoyment, the test is whether reasonable, sensible people would be annoyed and aggrieved by the extensions. The test is objective and the annoyance is judged by "robust and common sense standards".

The High Court deemed that the extensions would constitute "annoyance" and that the defendant did not have the consent of the management company to the extension as the email only implied they would give consent if the other criteria were met.

Although the High Court believed some of the claimants' objections would fail the test, the loss of view from 3 of the 5 hours would be significant and would trouble the minds of the ordinary sensible English inhabitants of any of those 3 houses.

This case will provide food for thought for developers and practitioners when advising on the suitable of a site for development. It is also a stark warning to anyone considering an extension of the dangers of starting the work before obtaining all the necessary consents.


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