When the Trustees of Coventry School Foundation obtained planning permission to increase its independent junior school from 280 to 400 pupils, the adjoining residents protested saying that the increased traffic noise and pollution would cause nuisance, damage, annoyance and disturbance.
The land in question was used as a school sports field but was to be re-developed by the school into a two storey school building, access road, car park, drop-off point plus ancillary landscaping. The sports field was however subject to an old restrictive covenant from 1931 which prevents
"any noisy noxious or offensive trade business pursuit or occupation or for any purposes which shall or may be or grow to be in any way a nuisance damage annoyance or disturbance".
The adjoining land which benefited from this covenant was used as housing and the residents opposed the development on the basis that it was in breach of the restrictive covenant. They believed the congestion, obstruction, traffic and additional noise that the school would bring amounted to a nuisance.
The Trustees sought a declaration from the courts that the adjoining housing had ceased to benefit from the covenant and, in addition that the school's re-development would not be in breach of the restriction. When the matter was referred to the Court of Appeal, the Trustees were successful.
The judge said that whilst it was true that an increase in traffic during school term time at certain times of the day would cause noise, congestion and obstruction, this was not the kind of nuisance or annoyance that the restrictive covenant was meant to cover. Nuisance here may have been more likely to be excessive noise, fumes or smell.
The Court of Appeal looked at the purpose and scope of the covenant. The intention was to prevent activity "on the burdened land" which may be or grow to be a nuisance and its affect on the benefitting land. The increased traffic on the adjoining highway was not an activity taking place on the burdened land. It was an activity occurring on the adjoining public highway.
This flow of traffic is a lawful use of the public highway and not relevant to how the school is being used. The judge stated that the traffic issues which concerned the adjoining owners "did not go to the activities of the Foundation on the burdened land or its user".
A simple "no nuisance" covenant was used here to delay or potentially put a stop to the expansion of a school, even though the use which was proposed was not specifically prohibited by the restrictive covenant. Restrictive covenants prohibiting nuisance are usually considered too vague to have much effect, but in this case one was used as a tactical weapon by local residents to try to frustrate development.
This case acts as a warning to both developers and solicitors alike that a relatively common "no nuisance" covenant should not be overlooked, nor should it be dismissed without some careful consideration.
Trustees of the Coventry School Foundation –v– Whitehouse [2013] EWCA Civ 885
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