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Restrictive Covenant - isn't it a nuisance?

View profile for Ian Riley
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Do you think that a new school being built near to your house would be a nuisance or an annoyance? Well, we all know children are generally quite noisy and it’s a fair assumption there will be increased traffic, therefore increased noise/pollution/congestion. Would these factors create a legal nuisance or an annoyance? Here, I have summarised a recent 2013 Court of Appeal case which looked at this issue in relation to a restrictive covenant on land.

A restrictive covenant is a “rule”, usually imposed on land (including any buildings on the land). Generally speaking, it will run with the land, meaning that any owner will have to comply with the “rule”, regardless of when it was imposed.

The law relating to restrictive covenants is complex and determining the enforceability of them can be extremely difficult. There are various technical issues to consider, including the precise wording of the covenant. They are very useful for controlling the future development and use of property, but in turn can be frustrating for anybody seeking to develop.

In a recent case (Coventry School Foundation v Whitehouse (2013)), the owner of some playing fields wanted to build a school with parking and access roads. The playing fields were affected by a restrictive covenant which, amongst other things, prevented the land being used for anything which will be a nuisance or annoyance.

Many of the nearby houses were entitled to enforce this covenant, so when they heard about the proposed school they objected. Their arguments centred around the increase in traffic and associated problems (as above).

What did the court say?

The court decided that the covenant was aimed at prohibiting activities on the land. It was not aimed at prohibiting traffic movements or preserving open space for local residents. In this claim, the source of the traffic nuisance and annoyance is the lawful use of the public highway by the general public, not the taking place or carrying out of any prohibited activity on the land. Therefore, the claim failed.

This case shows an interesting application of the restrictive covenant. To my mind it raises a couple of questions:

  • It appears that the noise from the children would not be sufficient to amount to a nuisance/annoyance, but is there a tipping point where this would become an issue?
  • Were these residents wise to even object – if the school is good and the catchment becomes desirable, won’t their house prices rise?

I draft restrictive covenants regularly, as they are common in land and property sale documents and in leases. This is a useful reminder as to how important the exact wording of each restrictive covenant is. As is often the case with law, every case needs to be assessed on its specific facts, so advice should be sought if you have a restrictive covenant issue. I will try to ensure that your restrictive covenant doesn’t become a nuisance and annoyance!