When the Court of Appeal pondered the case of a spoilt view, the judges had to imagine themselves as ordinary, sensible members of the public and ask one simple question...
The building of Mr Davies’ home extension started one morning in May 2007. A neighbour spotted the activity. Oh, it’s only a new study and new bedroom above and another on the upper floor, said Mr Davies. It will spoil my view of the river, said his annoyed neighbour. Soon three or four other neighbours said the same. A solicitor’s letter reinforced their view of the lost view.
Mr Davies had planning permission but sensibly got his builder to pause. Two years and two court cases later the extension is not to be built at all. So says the Court of Appeal.
Heron Island at Caversham, near Reading, is a very nice spot. Developed tastefully by Heron Homes in the mid-eighties, it has 47 three-storey houses, each with a view of the Thames.
The legal conveyancing paperwork included not very unusual promises from each freehold purchaser: (1) not to erect any building on the plot without permission from the management company; (2) not to use the dwelling house for any trade or business, nor do anything that may be or become a nuisance to the neighbours; (3) not to let the boundary fences fall into rack and ruin, and (4) not to erect any garden wall or hedge, etc.
Mr Davies’ neighbours took a hard look as to where this chap might be stopped in his building tracks. Where does it say that building a house extension would be a broken promise in the “love thy neighbour” handbook? It was to covenant no. 2 that they turned; the promise not to do anything that may become a nuisance or annoyance to the neighbours.
At the first trial, the judge had to decide on the reach of that promise not to be a nuisance or annoyance. The test goes to a very old case in the Court of Appeal more than 100 years ago. It asks whether the end result of the works would cause ordinary reasonable people who had bought property for pleasurable enjoyment to become annoyed and aggrieved by the work done. “Would the extension works reasonably trouble the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of the complainant’s houses?”
Well, said the judge, when he popped round to Heron Island and donned the T-shirt and jeans of a sensible English inhabitant, it sure does. So he ordered Mr Davies to send his builder away. But since the judge had a sneaking doubt about the decision and because the wording in this covenant is used widely, the understanding or meaning deserves the thoughts of the three-man Court of Appeal.
The court began with a useful reminder to itself. It was being asked to decide what can amount to an “annoyance or grievance”. Judges “must decide not on what their own individual thoughts are, but on what, in their opinions and upon the evidence before them, would be an annoyance or grievance to reasonable sensible people?” That’s what is done when adjudicating at any level.
Sometimes the objective test is contaminated by the dispute decider’s own ideas, standards and prejudices. Having wagged that finger at itself, the court considered the scope and meaning of the promise not to cause a nuisance or annoyance.
The temptation is to take the words as one phrase. Instead they separated nuisance from annoyance. Something which annoys is more than the legal definition and consequences of private or public nuisance. An annoyance is something which now, today, tonight or eventually next month is found to reasonably trouble the mind and yes, pleasure.
Whoever imparted the covenant was injecting more than the common law duty not to create a nuisance. There is, as well, an express contractual firm promise not to annoy. It wasn’t the building work that was the problem – indeed it isn’t relevant what goes on in Mr Davies property. His burden is simply not to annoy. And if you pop down to Heron Island and nab one of these delightful properties, with mooring, a boat, the lapping Thames, but then a neighbour spoils your view, don your T-shirt and jeans, become a “sensible English inhabitant” and ask: am I annoyed?
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple