Coventry School Foundation v Whitehouse & Ors

This action was commenced under CPR Part 8. The claimants are the Trustees of the Coventry School Foundation (TCSF). They seek two declarations under section 84(2) of the Law of Property Act 1925 (respectively s.84(2) and LPA 1925) for the benefit of some 44 acres of unregistered freehold land in the Coundon district of Coventry which they own and which is currently laid out and used as playing fields (TCSF’s land).

By a conveyance dated 29 October 1931 (the 1931 Conveyance), TCSF (then the Bablake School & Foundation) acquired TCSF’s land as part of a plot of some 51 acres from the estates trustees of the Sir Thomas White’s Charity (STWC). At that time, STWC also owned and retained adjoining or adjacent land, broadly to the north, which was let to tenant farmers and included land and properties referred to as Manor House Farm and as Moat House Farm.

On 30.3.10, TCSF was granted planning permission to develop part of TCSF’s land (the Site) by the construction of a one and two storey school building (the School), car parking, access road, vehicle drop off point and landscaping (collectively the Development). The Development is intended to be a junior school to accommodate TCSF’s two existing junior schools in Coventry under one roof and to cater for expansion in numbers from about 280 pupils to 400 pupils. The Site is at the northern boundary of TCSF’s land where it adjoins Norman Place Road (NPR) and Duncroft Avenue (DA).

By the declarations, TCSF seeks to establish (1) that a restrictive covenant burdening TCSF’s land (the Covenant) does not benefit the adjoining or adjacent land which was retained by STWC as the vendor imposing the Covenant or (2) if it does or may do so, that the Development will not constitute a breach of the Covenant.

Although it appears from endorsements on the 1931 Conveyance that TCSF was aware of the Covenant until 1972 at least and it is the case that TCSF has retained the services of the same firm of solicitors throughout, it seems that the existence of the Covenant was subsequently forgotten or overlooked until it was referred to in a letter from a local resident to the planning authority during the consultation process in December 2009.

This is said to have prompted research by TCSF which established that the Covenant was registered against the land conveyed in 1931 as a Class D(ii) land charge. TCSF was aware that the original covenantee (STWC) still exists, not least because STWC nominates one of TCSF’s governors. Assisted by its solicitors, TCSF then sought to identify the land of the original covenantee (STWC) intended to, or which might, benefit from the Covenant.

The Covenant itself refers to STWC’s “adjoining or adjacent property” and the plan to the 1931 Conveyance indicates that STWC owned and retained land to the north of TCSF’s land, either including or the other side of Hangman’s Lane (which is now NPR and DA). The plan also identifies a farm to the north east (Manor House Farm). STWC no longer owns any land adjoining or adjacent to TCSF’s land.

TCSF’s solicitors were informed that STWC had passed its records to Coventry City’s Archives Department. From STWC’s estates book of maps and particulars dating back to 1808 and its cropping book for 1934, TCSF was able to ascertain that the land to the north of TCSF’s land and TCSF’s land had been known as Moat House Farm and that the retained part of Moat House Farm (the retained land) was sold in 1935 to a local solicitor, Mr Thomas Cooksey Jnr, for housing development. This is readily apparent from the closing entry in the cropping book : “The whole Farm was sold 1935 to Mr Thomas Cooksey Jnr for building purposes”. TCSF also produced in evidence a photocopy of Coventry City Council’s general works committee’s plan dated 10.9.35 which shows the layout of and names of roads for the development of the retained land; this plan also shows the redesignation of Hangman’s Lane as NPR and DA.

Having obtained this information, TCSF then took legal advice and as a result decided to send a circular letter (the Letter) addressed to the owners of each of the 1,200 or so properties built on the retained land and other nearby land. The Letter, which is dated 18.3.11, was drafted and sent by TCSF’s solicitors and was hand delivered by a process server over several days shortly thereafter.

The Letter refers to the 1931 Conveyance, quotes the potentially relevant parts of the Covenant, refers to the 30.3.10 planning permission, refers to counsel’s advice to TCSF that the Covenant is not enforceable “because no person or persons has the benefit of the Covenant and/or because the development of the Site will not constitute a breach of the Restriction”, and states that as a matter of prudence proceedings would be issued for declarations pursuant to s.84(2). The Letter was accompanied by several enclosures.

The Letter also invites the addressee’s consent and continues that “if you decide that you are unable to consent, you will be made a defendant to the court proceedings which [TCSF] intends to issue. If you contest [TCSF]’s claim you may be at risk as to costs if the court decides that the advice we have given our client is correct”. The Letter invites responses by hard copy (for which a reply form and pre-paid envelope was enclosed) or e-mail.

A number of recipients of the Letter perceived it to be a threat, perhaps because even silent abstention would lead to joinder as a defendant to proceedings. Whilst that reaction is understandable, the other side of the coin is that, once aware of the Covenant and assuming that TCSF wished to press on with the Development, the only safe course for it to take was to seek the court’s sanction.

Over the course of March, April and May, TCSF’s solicitors received 129 individual replies, 124 expressing consent and 5 objecting. In addition, Mr Steven Whitehouse, the first defenant, (SW) replied by letter dated 31.3.11, supported by more that 170 signatories as owners or co-owners who had received the Letter, requesting an extension of time for their response. This was granted, but apparently no further response was received. Evidently, SW organised a residents’ meeting and an ad hoc group, the Bablake Residents Action Group (BRAG), was formed.

As there was not unanimous consent to TCSF’s assertion that the Covenant was not enforceable, TCSF proceeded to issue proceedings on 26.5.11.

Given the number of potential defendants and the commonality of their interest in the proceedings, TCSF selcted SW, who is the owner of 146 NPR, and Mr and Mrs Devenport, who are the owners of 110 DA, as representative defendants pursuant to CPR Part 19.6. Mr and Mrs Devenport were reluctant to be involved in the proceedings, and, at a CMC on 6.7.11, they were removed as parties and directions were given for an acknowledgment of service and evidence to be served and filed by SW and for a further CMC.

SW served and filed an acknowledgment of service on 15.7.11 indicating an intention to seek an injunction and/or damages. The acknowledgment purports to be filed by SW and Mr Mervyn Lewis (ML) as representatives of BRAG. Although SW was represented by solicitors on the record, this self-styling was entirely informal and does not constitute BRAG (which is not a legal person) a party or affect the capacity in which the defendants are parties to the proceedings. However, it is not entirely a matter of semantics because, so submits Mr Edward Denehan, counsel for TCSF, the defendants (collectively Ds) have misled themselves into thinking that they are spokespersons for others whereas in fact they are representatives of a potentially large number of people having the same interest; I shall return to this point when considering the evidence of Ds and their witnesses.

At the following CMC, on 14.10.11, ML, who owns 26 Coundon Green, was formally joined as a defendant together with Mr Stephen Tate (ST), who owns 122 NPR, and Mr Keith Griffiths (KG), who owns 236 Hollyfast Road. All three were joined on the basis that they have the same interest, namely that each of them and SW own properties built on the retained land; and that , if the Covenant is enforceable, they are beneficiaries of it, and, further, they object to the Development being built on the Site.

So that there is no misunderstanding about what Ds seek to achieve by their opposition, none of Ds objects to the Development being built further to the south on TCSF’s land or to an access road with a dropping off point provided the access road joins the public highway on Scotts Lane, which runs along the south eastern boundary of TCSF’s land and is undeveloped (the land opposite being a reservoir). Indeed, none of Ds or the persons they represent could object because the land to the south and east (and, for that matter to the west) of TCSF’s land was not part of STWC’s adjoining or adjacent land at the time of the 1931 Conveyance.

It is the case that some of Ds and a number of other witnesses object to the fact that the Development will bring an independent school to the area on the grounds that their property values will or may be adversely affected, but that alleged ‘blight’ would not occur if the Development takes place on the southern part of TCSF’s land, so on that ground there is no objection to an independent school per se.

Mr Denehan identifies two issues for the court to decide in this case : (1) Can Ds enforce the Covenant (or perhaps more broadly, is there anyone who can enforce the Covenant)? (2) If so, will the Development, or the operation of the School on the Site once the Development is complete constitute a breach of the Covenant?

The Rt Hon Mike O’Brien QC, who is counsel for Ds, contends on their behalf that the answer to both questions is in the affirmative, but that, as the claim is brought by TCSF, it is for TCSF to prove on the balance of probabilities that the answer to both questions is in the negative.

Mr Denehan disagrees and submits that on issue (2) the evidential burden is on Ds to establish a breach of the Covenant.

S.84(2) provides :

Thus, it is open to the owner of burdened land and the owner of benefiting land to seek a declaration. In the instant case, the owner of the burdened land seeks declarations. If made, the declarations will operate in rem.

The answer to where the burden of proof lies is provided by the terms of the declaration sought, which is that “the development and use of that part of the Foundation’s Land shaded yellow on the plan annexed (“the Site”) by the erection thereon of a single and two storey school building, car parking, access road, vehicle drop off point and landscaping does not constitute a breach of any of the restrictions imposed by the covenant contained in the said conveyance”.

It seems to me that as TCSF has chosen to come to court and seek a declaration in the negative, it is for TCSF to satisfy the court that the declaration should be made, not for Ds to prove that it should not be made. I therefore agree with Mr O’Brien QC on this point.

I have not been specifically referred by either counsel to authority on the balance of probabilities. I take is as now well settled that there is a single standard of proof, that is the straightforward balance of probabilities, i.e. more likely than not, and that the standard of proof does not vary with the gravity of the consequences for the party affected by the decision. Further, if and to the extent that the court is called upon to draw conclusions as to inherent probabilities or inherent improbabilities or to draw inferences, when so doing the standard of proof remains the same, but better evidence may be required to persuade a judge to draw a conclusion or inference which is out of the ordinary; thus, at all times the court must have regard to the quality of the evidence before it when making a finding or reaching a factual conclusion on the balance of probabilities (see In Re B [2009] AC 11, in particular the speech of Lord Hoffmann at ## 11 – 15, In Re S-B [2010] 1AC 678, in particular the speech of Baroness Hale at ## 11 – 13).

There are five restrictions under the Covenant. Only a part of one restriction is relevant, although reference may be made to other restrictions when addressing one aspect of Ds’ case. The Covenant and the first restriction provide as follows :

“And the Purchasers do hereby for themselves and their successors in title and to the intent and so as to bind not only themselves personally but also all further owners and tenants of the property hereby conveyed or any part thereof and to bind such property into whosesoever hands the same may come covenant with the Vendors and their successors in title in manner following that is to say:-

(1)

That no house or other building erection or structure already erected or hereafter to be erected upon the land hereby conveyed or any part thereof shall at any time be erected, used or occupied for the purposes of or as a Club Inn Hotel Public House Beerhouse or place for the sale of ale beer wines spirits or other intoxicating liquors to be consumed on or off the premises nor shall the said land or any building erection or structure already erected or hereafter to be erected thereon be used for the sale of fried fish or for any noisy noxious or offensive trade business pursuit or occupation or for any purpose which shall or may be or grow to be in any way a nuisance damage annoyance or disturbance to the Vendors and their successors in title or their lessees or tenants or which may tend to depreciate or lessen the value of the Vendors adjoining or adjacent property and the Purchasers and their successors in title shall not sell or permit to be sold on any part of the land hereby conveyed any intoxicating liquors wines ale beer or spirits.”

STWC no longer owns any of the retained land or any nearby land which might benefit from the Covenant. TCSF accepts that successors in title of STWC may have the benefit of the Covenant if the benefit passed to them as a matter of law. Thus, SW, ST and KG are accepted as potential beneficiaries, but not ML because his property is beyond, to the north-west, the retained land. ML’s case is that the land nevertheless was owned by STWC and was sold separately and subsequently, which appears to be borne out by the documents exhibited to ML’s witness statement.

It is common ground that in this case that the benefit of the covenant can only run, if at all, by annexation.

As the Covenant arises under the 1931 Conveyance, s.78(1) LPA 1925 applies. S.78(1) provides :

As to the criteria to be met for there to be annexation, it is accepted by Mr Denehan on behalf of TCSF that (1) in 1931 when the Covenant was entered into STWC had other land, (2) the Covenant relates to, or ‘touches and concerns’, at least part of STWC’s other land, and (3) three of Ds (SW, ST and KG) now own part of the retained land retained by STWC to which the Covenant relates (ie part of the retained land). What TCSF does not accept is that the land owned in 1931 by STWC and having the benefit of the Covenant is easily ascertainable.

On this point in issue, both Mr Denehan and Mr O’Brien QC referred in some detail to Marquis of Zetland v Driver [1939] Ch 1, Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594, and Crest Nicholson Residential (South) Ltd v McAllister [2004] 1 WLR 2409.

In Marquis of Zetland, giving the judgment of the Court of Appeal, Farwell J said at p.8 :

“ … the land which is intended to be benefited must be so defined as to be easily ascertainable, and the fact that the covenant is imposed for the benefit of that particular land should be stated in the conveyance and the persons or the class or persons entitled to enforce it. The fact that the benefit of the covenant is not intended to pass to all persons into whose hands the unsold land may come is not objectionable so long as the class of persons intended to have the benefit of the covenant is clearly defined.”

The Marquis of Zetland case was not cited in Federated Homes Ltd. In the latter case, the Court of Appeal left open, as Chadwick LJ noted in Crest Nicholson at #30, the question whether s.78 only effects annexation when the land intended to be benefited is described in the instrument itself (by express words or necessary implication, albeit that it may be necessary to have regard to evidence outside the document fully to identify that land) or whether it is enough that it can be shown, from evidence wholly outside the document, that the covenant does in fact touch and concern land of the covenantee which can be identified.

Chadwick LJ, with whose judgment Auld LJ and Arden LJ agreed, concluded at #33 that the question had already been answered in Marquis of Zetland. Thus, although the provisions of s.78 have rendered it unnecessary for the conveyance to state that the covenant is to be enforceable by persons deriving title under the covenantee or under his successors in title and the owner or occupier of the land intended to be benefited, or that the covenant is to run with the land intended to be benefited, there is nothing in Federated Homes which suggests that it is no longer necessary that the land intended to be benefited should be so defined that it is easily ascertainable.

Chadwick LJ identified, at #34, policy reasons as good reasons for that requirement. It is desirable that a purchaser of burdened land should be able to identify from entries on the relevant register not only that the land is so burdened but also the land for which the benefit of the covenant was taken so that he may identify who can enforce the covenant. It would be oppressive to require a purchaser of burdened land where the benefiting land was not described in the instrument to make inquiries as to what, if any, land the original covenantee retained and what, if any, of that land the covenant did, or might have, ‘touched and concerned’; and, it should be kept in mind that the question of enforceability may arise long after the date of the instrument by which it is imposed.

Applying these principles to the facts of this case : (1) The land remains unregistered and TCSF’s title is derived from the 1931 Conveyance; (2) that instrument identifies STWC (strictly STWC’s then present estates trustees) as “the Vendors” and refers in the body of the restriction to “the Vendors” having “adjoining or adjacent property”; and (3) the plan to the 1931 Conveyance shows that STWC has adjoining or adjacent land to the north and north-east of TCSF’s land. All of that is immediately ascertainable from the instrument itself.

Thus, it is easily ascertainable from the 1931 Conveyance that STWC’s land to the north and north-east of the land sold to TCSF was intended to benefit from the Covenant.

Mr Denehan submits that that is not enough, and that the 1931 Conveyance raises as many uncertainties and ambiguities as it solves or appears to solve, including in particular the extent of the land intended to benefit; that one such uncertainty or ambiguity is the boundaries of the benefiting land; and, therefore, that the ‘easily ascertainable’ test is demonstrably shown to have been not met.

Mr O’Brien QC submits that because it is permissible to look outside the instrument itself for evidence from which to identify the benefiting land, it is a matter of fact and degree in each case whether the benefiting land is easily ascertainable.

I accept Mr O’Brien QC’s submission.

In so far as the particular instrument leaves the benefiting land undefined, the other evidence to which resort may be had must be readily available or accessible and of such evidential quality as to eliminate uncertainty or ambiguity.

In this case, BC explains in his witness statement that inquiry was made of STWC and that that inquiry produced the information that (1) STWC no longer owned any land; and, (2) STWC’s records had been passed to the City Archives Department. BC explains that inquiry there produced an answer : (1) the southern boundary of the land retained by STWC corresponds with the southern boundary of the land sold to Mr Cooksey Jnr; (2) the land retained by STWC and the land sold to TCSF was mapped in STWC’s estates records, which appear to date back to 1808, as a single estate; and, (3) STWC’s cropping book for 1934 contains a plan of the retained land and is closed with the final entry : “The whole Farm was sold 1935 to Mr Thomas Cooksey Jnr for building purposes”.

There is no evidence on behalf of TCSF that the ascertainment of this information was onerous in any way. Certainly, it involved two stages of inquiry, but that of itself would not necessarily render ascertainment other than easy. STWC was the obvious first point of inquiry. If the charity was no longer in existence the trail might well have become difficult or impossible to follow. If STWC’s records had been lost or destroyed, the trail might also have become difficult or impossible to follow. However, STWC was known to be in existence; it nominated one of TCSF’s governors.

In this case, the trail was, as it must be, short, clear and well marked. What was revealed at the end of the trail is also clear and free from uncertainty or ambiguity.

On this finding, ML’s land is located outside the benefiting land. ML’s land was not part of the retained land (i.e. the land sold to Mr Cooksey Jnr). Mr O’Brien QC draws attention to the fact that TCSF’s solicitors caused the Letter to be delivered to ML’s property and submits that, although not adjoining TCSF’s land, ML’s property may be described as adjacent thereto. On that basis, Mr O’Brien QC submits that it is easily ascertainable that ML has the benefit of the Covenant.

If the land on which ML’s home now stands was intended to benefit from the Covenant, that fact is not easily ascertainable; at least, not on the available evidence. Indeed, reference to ML’s title provides a good illustration of a trail which is not short, clear and well marked.

As a final point, I observe that the fact that it is not easy to ascertain whether there is also other land retained by STWC, in addition to that sold to Mr Cooksey Jnr, intended to have the benefit of the Covenant is not a reason for concluding that land which can easily be ascertained as intended to benefit is somehow tainted by the uncertainty surrounding other adjoining or adjacent land and, in consequence, is to be deprived of that benefit.

I therefore decline to make the first declaration sought by TCSF.

Referring to a well known passage in the speech of Lord Hoffmann in ICS Ltd v West Bromwich Building Society [1988] 1 WLR 896 at p.912, Mr Denehan submits that the determination of this question turns upon the proper construction of the Covenant, and in particular the restrictions, as understood by a reasonable person having regard to the Covenant in the context of the 1931 Conveyance as a whole and having the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the 1931 Conveyance.

The search or inquiry is not for the particular subjective intentions of the parties but for the objective meaning of the language of their instrument. The parties have chosen and agreed upon specific language and this is to be construed objectively so as to ascertain what the law regards as and terms : the intention of the parties.

The restrictions in the Covenant are set out in five sub-clauses. Although only part of the first sub-clause is in issue, it is necessary to refer to other sub-clauses. This is because Ds contend, by their evidence and submissions, that the process of erecting the School or indeed any other substantial building on the Site would be noisy and/or a nuisance, damage, annoyance, or disturbance and therefore prohibited by the first restriction.

Ds say that in addition to the noise caused by the erection of the School and preparation and laying of the car park, access road and drop off point and the landscaping over a period of many months, there would also be noise, nuisance, damage, annoyance, and/or disturbance caused by lorries and other vehicles delivering building materials and removing tarmac, trees and other materials, and by the building work itself, as the initial ground works are undertaken and as the works progress over most, if not all, of that period.

In response, Mr Denehan points to the various restrictions and observes and submits that (1) only certain types of building (those associated with the sale of alcohol and/or fried fish) are prohibited by sub-clause (1), and even then it is the use to which the building is to be put rather than the process of erection which is objectionable; (2) the inescapable implication is that the erection of other buildings is not prohibited; (3) if that is not a complete answer, sub-clause (3) expressly envisages that TCSF’s land may be levelled and that foundations and drainage may be laid for “the building of any house or other building thereon”; accordingly, (4) Ds’ contention is the result of a misreading or misunderstanding of the plain words of the Covenant and is misconceived.

I agree with Mr Denehan. Ds’ case on this point is hopeless.

Before addressing the second declaration sought further, it is important to have clearly in mind the particular restrictions in issue. In the language of the 1931 Conveyance they are as follows :

“… nor shall the said land or any building erection or structure already erected or hereafter to be erected thereon be used for

any noisy … trade business pursuit or occupation or

for any purpose which shall or may be or grow to be in any way a nuisance damage annoyance or disturbance to the Vendors and their successors in title or their lessees or tenants or

which may tend to depreciate or lessen the value of the Vendors adjoining or adjacent property” (layout altered).

The above extract of text from sub-clause (1) of the restrictions is not intended to limit or detract from the correct approach to understanding the meaning of the Covenant, but to identify the particular matters to which the evidence of the parties was, or was intended to be, directed.

Mr Denehan observes that the Covenant prescribes only what cannot be done by TCSF. Where the Covenant is silent, TCSF is not susceptible to any objection by Ds or those whom they represent.

Thus, for example, Mr Denehan submits that contrary to the apparent belief of one or more of Ds’ witnesses, the Covenant does not require that TCSF’s land be used only as playing fields; indeed, there is nothing in the 1931 Conveyance that would prohibit TCSF from laying concrete over the entire 44+ acres.

Further, Mr Denehan submits that the terms of the Covenant do not exclude noise altogether; rather, the restriction prohibits the use of TCSF’s land for a trade, business, pursuit or occupation which is noisy. Mr Denehan submits that the operation of a school is a pursuit, and he accepts that there are times in the school day when noise is created (for example if and when children are outside during break times). However, submits Mr Denehan, the development of the Site by the erection of the School with its attendant parking and access road will not result in TCSF’s land being “used for any noisy … pursuit or occupation”.

Ds’ case is that noise is relevant in three ways. First, there is the express prohibition against the use of TCSF’s land for any noisy pursuit or occupation. Secondly, there is the prohibition against the use of TCSF’s land for “any purpose which shall or may be or grow to be in any way a … damage annoyance or disturbance to the Vendors[‘] successors in title”. Thirdly, Ds submit that noisy use of TCSF’s land “may tend to depreciate or lessen the value of” their land which is part of what is described in the Covenant as “the Vendors adjoining or adjacent property”. The second and third points raise noise as an integral or contributory factor, and I shall return to those later.

As to the first way in which noisy use is referred to by Ds, Mr O’Brien QC submits that there will be traffic noise and other loud noise as up to 400 school children arrive and leave during term time. The evidence to support this submission includes the oral testimony of witnesses who are local residents and who experience the term time comings and goings of pupils to and from Hollyfast Primary School and Coundon Court School and College nearby. There is also DVD evidence of arrivals and departures at these schools and at the existing Bablake School in Coventry. In both cases, the numbers of children arriving and departing (1) far exceed the maximum capacity for which the Development has planning permission and (2) include large numbers of children over the age of 11 years who make their own way to school and contribute significantly to the noise levels at arrival and departure times.

The prohibition in the Covenant is of any noisy trade, business, pursuit or occupation. Thus, the focus of the restriction is on noise as a feature of the use to which the burdened land is put.

Circumstanced as the parties were at the time of the 1931 Conveyance, I think it unlikely that their objective intentions would have included the prohibition of the operation of an independent junior school for up to 400 pupils on the grounds of it being a business, noisy pursuit or occupation. In 2012, the position is the same. Schools for hundreds rather than tens of children are a feature of everyday urban life, just as delivery and collection of young children by motor vehicles is a feature of everyday life.

On the evidence before me, that is the evidence of Mr Peter Leonard, TCSF’s acoustics expert, at its highest from Ds’ point of view during cross-examination was that the increase in traffic noise will be noticeable and on occasions will be at a level which, if sustained continuously would cause harm or injury; but there is no evidence that over the course of 125 or 30 minutes twice a day the noise will be more than noticeable. However, there is already noise of children arriving at and leaving nearby schools, both on foot and in parents’ vehicles. Taken as a whole, the evidence is insufficient to support a finding that it is as likely as not that the operation of the School will result in TCSF’s land being used for a noisy pursuit or occupation.

On this issue, I accept Mr Denehan’s submission that the Covenant was not intended to prohibit the Development or the operation of the School.

Mr O’Brien QC submits that the primary basis on which Ds contend that TCSF fails to establish its entitlement to a declaration in respect of breach is ‘annoyance’ and ‘tendency to diminish property values’; and that to a lesser extent Ds rely upon ‘nuisance’ and ‘damage’.

The restriction prohibiting a nuisance, damage, annoyance or disturbance is to be measured (1) not only in the present but also in the future and (2) as a possibility not a probability. Thus, it is for TCSF to establish on the balance of probabilities that it is unlikely that the Development may grow to be in any way a nuisance, damage or annoyance.

Nuisance is a term to be construed according to “plain and simple notions among the English people”, Walter v Selfe (1851) 4 De G & Sm 315; in more modern language, nuisance or annoyance are to be “determined by the courts according to robust and common sense standards”, Hampstead Suburban Properties Ltd v Diomedous [1969] Ch 248, Megarry J at p.258.

In his submissions, Mr O’Brien QC did not identify any particular features distinguishing ‘nuisance’ or ‘damage’ from ‘annoyance’. Similarly, the evidence adduced by Ds and the witnesses on their behalf took the line that the Development would or may grow to be a nuisance or annoyance without distinguishing nuisance from annoyance. There is nothing in the language of the Covenant or the 1931 Conveyance indicating that ‘nuisance’ is to be construed as meeting the criteria necessary to establish the tort of nuisance, and indeed no such suggestion is made by either party.

In the Shorter Oxford English Dictionary, the definition of annoyance refers to nuisance and vice versa. However, the use of the phrase ‘nuisance or annoyance’ in a restrictive covenant is not to be understood as the repetition of synonyms.

Both Mr Denehan and Mr O’Brien QC refer in their submissions to Tod-Heatly v Benham (1889) LR 40 Ch D 80. In that case, the Court of Appeal held that the establishment of a hospital for the treatment of out-patients suffering from ear, nose, throat, skin, eye and other diseases was a breach of a covenant against doing any act “which shall or may be or grow to the annoyance, nuisance, grievance, or damage” of the covenantees.

Cotton LJ referred to annoyance as something to be determined by judges having regard to the evidence before the court and to whether reasonable, sensible people would be annoyed; thus, an act which is an interference with the pleasurable enjoyment of a house is an annoyance (p.94). In particular :

“It is not sufficient … to shew that a particular man objects to what is done, but [the court] must be satisfied by argument and by evidence, that reasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved by what is being done” (Cotton LJ p.94).

In that case, the circumstances which led Cotton LJ to make a finding of possible annoyance and therefore breach of covenant were that there was credible evidence of a reasonable apprehension that the servant of a family might run against someone going to or from the hospital who has a contagious disease and possibly take it into the house of his or her employer in the neighbourhood; that was a reasonable apprehension of risk from other people meeting the patients coming to the hospital.

Damage is not confined to pecuniary damage (Lindley LJ p.96). Finding that the establishment of the hospital was a breach of covenant, Lindley LJ confessed to having thought at one time that the covenantor might succeed in showing that there was really nothing to complain of except fanciful annoyance, but “upon the evidence” the Lord Justice was “satisfied that what has been done really does annoy a great many people on this estate” (p.96).

Bowen LJ was clear that ‘annoyance’ and ‘nuisance’ must have different meanings or one would not have been put in the covenant. Bowen LJ identified the characteristics of a nuisance as being directed to material interference with the ordinary comfort of existence and those of ‘annoyance’ as having a wider meaning and being directed to something which reasonably troubles the mind and pleasure of an ordinary sensible inhabitant of a house, not a fanciful person on one side of the line or a skilled person who knows the truth on the other side of the line (p.98). Thus, the distinction appears to be between something which affects the senses (nuisance) and something which affects the intellect (annoyance).

Expressing his conclusion as a test Bowen LJ said “And if it is not an unreasonable thing for an ordinary person who lives in the neighbourhood to be troubled in his mind by the apprehension of such risk, it seems to me there is a danger of annoyance, though there may not be a nuisance (p.98) and again as “The measure is what is reasonable enjoyment of a man’s premises … according to what ordinary people may think it” (p.99).

The evidence which weighed with Bowen LJ as the “strong part” was that because people suffering from diseases were collected in the vicinity of the hospital that people in the neighbourhood should be apprehensive as to the consequences was not unreasonable (p.99).

Over time the circumstances and risks which cause or may cause apprehension in the minds of sensible people and concern that they may be adversely affected and, in consequence, annoyed will change. Similarly, what constitutes a “material interference with the ordinary comfort of existence”, or a nuisance, will also change over time. Conceptually, the distinction in the case of an annoyance is between a real apprehension or concern about being adversely affected on the one hand and experiencing a minor irritation on the other; and, in the case of a nuisance the distinction is between a material interference with the ordinary way of life on the one hand and a trivial inconvenience on the other. In either case, the impact, whether mental or sensory, is to be judged by reference to the sensible person, whose qualities include a reasonable measure of robustness and common sense.

What then are the matters raised by Ds, as representatives of the owners of the properties now standing on the retained land, in relation to the use of the Development as being for any purpose which shall or may be or grow to be in any way a nuisance or annoyance?

Mr Denehan identifies a number of matters raised in the evidence of Ds and the other witnesses giving evidence on behalf of Ds in their representative capacity which he classifies as ‘red herrings’. These are : (1) that the Former Pupils Association (FPA) has permitted the sale of alcohol; (2) that the campaign by BRAG demonstrates that the Development is a nuisance and/or an annoyance; (3) that the tone of the Letter is threatening; and, (4) that TCSF is a wealthy foundation that will bring a private school to an area where residents send and will continue to send their children to local state schools. In my judgment, Mr Denehan is correct in that (1) the sale of alcohol and other occurrences at past summer galas organised by the FPA are not in issue in these proceedings, neither is any action to be taken by TCSF in relation to future FPA galas; (2) as already explained, BRAG is not a party to these proceedings and the members of BRAG are not exclusively covenantees, thus the views of BRAG, as distinct from the views of the persons represented by Ds, are not relevant; (3) I have already addressed the Letter, and I do not consider its content to constitute a threat or, for that matter, to constitute a breach of the Covenant; and, (4) the financial position of TCSF is irrelevant and, save possibly in respect of traffic matters (the point being that there is no catchment area and, being young, the children are unlikely to walk or travel by public transport to and from the School, and in consequence most children with be transported to and from the school by their parents), the status of the School is irrelevant.

As to particular matters constituting possible breaches of covenant, these were listed by Mr Denehan as : (1) that the School will be a blot on the landscape; (2) covenantees will be overlooked; (3) covenantees will suffer the loss of a view and of accompanying amenity; (4) the Development will cause or result in harm to wildlife; (5) the Development will or may increase the likelihood of flooding or subsidence; and, (6) traffic associated with the operation of the School will or may be or grow to be a nuisance or annoyance.

As to (1), the evidence of Mrs Julia McNaney (JMcN), the recently appointed vice chairman of the governors and trustees of TCSF, is that the design of the Development is anything but a blot on the landscape and she referred to the improvements to be made to the landscaping and fencing along the boundary of TCSF’s land with NPR and DA. Architect’s plans and CGI impressions of the School, the surrounding areas and the landscaping are in evidence. Mr Denehan adds that the Covenant could have but did not make building on the Site subject to the covenantee’s approval, and that, if relevant, the existing structures on the Site (portacabins and a large shed) are less appealing to the eye than the School.

I accept that the design of the School may not be to everyone’s liking, and that Ds and persons having the same interest, or some of them, do or might consider the Development to be an eyesore. However, reasonable people may reasonably disagree over what constitutes good architectural design and what does not, that reasonable people may reasonably disagree over what constitutes good architectural design and what does not, and there is no evidential basis on which I can make a finding that the Development will or may be or grow to be in any way a nuisance or damage on this basis; nor is there a legal basis for a finding that Ds or other covenantees, as sensible people, would or might be or might grow to be annoyed or find their senses offended in a way constituting a nuisance by the design of the School.

As to (2), JMcN’s evidence as to the design of the School is that the windows at 1st floor level will face DA, and in this respect BC’s evidence is incorrect. However, JMcN’s evidence is also that the windows will be in the dining hall and the indoor sports hall and that these windows will be set high in the walls. Thus, JMcN’s evidence is that local residents will not be overlooked. That evidence is not entirely consistent with the architect’s CGI impressions of the façade of the School. The evidence of SW and Mr Mark Eaves (ME), of 139 NPR, is that being overlooked and losing privacy will be or grow to be a nuisance and annoyance. As to SW’s concerns, the architect’s plans (especially the drawing at [1/6] in the trial bundle) indicate that SW’s property is some distance from the School (the width of NPR, the gardens of 147 NPR and 112 DA, and the width of DA) and that 147 NPR is likely to have windows facing SW’s property, albeit at an oblique angle, in much closer proximity than the School. As to ME’s property, the rear bedrooms, which are the primary source of ME’s concern, will not be overlooked by the School but will look down through trees and landscaping onto the staff car park and the cycle park.

Mr Denehan fairly observed that in both cases there is a greater likelihood of being observed by a passer by in the street and that the usual action of a neighbour not wanting to be overlooked, or looked in upon, is to draw the curtains or pull the blinds. When giving their evidence, both SW and ME appeared to be reasonable and sensible men, and, in fairness, Mr O’Brien QC characterised the concerns they expressed on behalf of themselves and their respective families about being overlooked as a factor to be taken into account, implicitly acknowledging that such concerns are insufficient in their own right to constitute or possibly grow to constitute a nuisance or annoyance in breach of the Covenant. In my judgment, even as an additional factor, the incremental weight would be insufficient to tip the scales against TCSF to any perceptible degree.

As to loss of a view and accompanying amenity, SW gave evidence about enjoying the view from his property of hockey being played on artificial pitches; this aspect is of particular interest to SW because he was, for some 14 years until recently, a regular hockey player on these pitches.

In this context, Mr O’Brien QC referred to Dennis and others v Davies [2008] EWHC 2961 (Ch) which concerned objections by other residents of homes on an estate at Heron Island in the Thames near Caversham. Those proceedings concerned two covenants, a permission covenant (by which a proposed alteration or addition had first to be approved by the estate’s management company) and a nuisance and annoyance covenant (prohibiting anything being done which may be or become a nuisance or annoyance to others on the estate). On the facts, the views of the Thames from each property on the estate were a design feature and a material factor adding to the owner’s or occupier’s enjoyment. Having conducted a view and considered the evidence, the trial judge was in no doubt that what Mr Davies proposed to do would be a breach of the nuisance and annoyance covenant.

In fairness, Mr O’Brien QC again conceded that applying a robust common sense approach, SW’s loss of a view would not justify refusal of a declaration.

ST gave evidence of also enjoying the view, albeit as an incident to being at an open window for the purpose of smoking, and of enjoying the view looking into TCSF’s land when walking his dogs around the perimeter. The loss of a view from ST’s property could not realistically feature as a basis for refusing to make the declaration sought, and much of the perimeter to TCSF’s land is not benefiting land. To the extent that ST might enjoy the view as he walks along benefiting land, first, once outside his own boundaries, he is neither an owner nor an occupier of such land and the Covenant does not promise or protect a view as such and, secondly, any such view would be a glimpse of playing fields through trees and other well established undergrowth all encased by what JMcN described as “stalag like fencing”.

Mrs Kay Johnson (KJ) of 44 DA, also gave evidence of enjoying a view of TCSF’s land as playing fields from her property (which is at or near the corner of DA and Drummond Close). KJ’s view requires her to look over or around the bungalows at Fullers Close and across the open space of Christ The King Catholic Junior School before sighting TCSF’s land. In any event, the Development will not be in KJ’s line of sight. KJ has lived in DA for more than 50 years; she has experienced the development of bungalows at what is now Fullers Close and the sale of land by TCSF for the building of the Christ The King School. It transpired from KJ’s oral evidence that her real concern in relation to aspect is that once the School has been built it will be expanded by the addition of further buildings. However, any breach of covenant that may arise in that eventuality is a future question and is outside the scope of whether or not the Development may in the future grow to be a nuisance damage annoyance or disturbance.

As to (4), notwithstanding KJ’s concerns about the wildlife on TCSF’s land, there is no evidence that the Development or the operation of the School will or may possibly in the future cause harm to wildlife, and, if so, how that will or may be or grow to be a nuisance or annoyance. Thus, the question of whether there might be a breach of the Covenant simply does not arise.

As to (5), the only evidence of flooding or risk of subsidence is in relation to other burdened land at Fullers Close.

The real area of controversy in this case is about traffic and the operation of the School.

The question for me is whether the sensible person would consider that the traffic attending the School, that is the noise, parking and obstruction, and congestion caused by such traffic, is a use of TCSF’s land for a purpose which shall or may be or may grow to be in any way a nuisance or annoyance?

I must approach this question having regard to the written and oral evidence of TCSF’s and Ds factual witnesses, the DVD evidence, and the expert evidence of Mr Leonard, Mr Aulak and Mr Silcock.

In so doing, I must also have some regard to the fact that planning permission has been granted and a s.106 agreement entered into for traffic measures. In consequence, the main entrance to TCSF’s land will be relocated to a point on NPR approximately midway between the junctions with HR and DA; a right turn filter lane will be introduced for vehicles travelling east along NPR onto the access road; safety measures will include the siting of one or more pedestrian refuges on NPR; and, TCSF has a proposal for marshals to keep traffic flowing on TCSF’s land.

I should also have some regard to Ds’ and other factual witnesses’ evidence about the possibility of parking restrictions being introduced, but in so doing I must take into account that any such measures would be preceded by consultation.

To take one example, Mr Denehan submits that, even if (which he does not accept) the court can infer that there are residents in NPR or DA who have had their front gardens converted to accommodate vehicle parking and have a dropped kerb onto the highway, there is no evidence that any parking across the vehicular access will cause annoyance to any owner and, as Mr Denehan puts it, “it may be a matter of indifference” to all such persons.

In evaluating that submission, I observe (1) having viewed the Site and walked around the area with counsel, I am aware that a number of properties do use their front gardens for off-street parking; (2) there is absolutely no evidence underpinning the submission that parking across the access way to an off street parking space may be “a matter of indifference”; (3) from a walk along NPR, particularly the section opposite the Site, it is impossible not to notice the banners and posters adorning properties and in windows proclaiming opposition to the Development; (4) BC refers to having TCSF or its solicitors having received 124 letters in response to the Letter consenting to the Development, but there is not a single property owner giving evidence in support of TCSF; and, (5) common sense suggests that sensible people will not be indifferent to temporary obstruction of their access way to parking, and, depending on the frequency of such an occurrence, may, at one end of the scale, reasonably consider it to be an irritation and, at the other end of the scale, reasonably consider it to be it an annoyance. In such circumstances, it is legitimate for the trial judge to test the water by reviewing evidence, whether hearsay or formal, such as the correspondence exhibited by SW; a review reveals correspondence complaining of obstruction to access ways to rear garages and an expression of concern that there will be difficulty in leaving and accessing the road from a property (200 NPR). In addition, KG has given evidence about his driveway being obstructed by parents dropping off and collecting children at Hollyfast Primary and Coundon Court Schools. Returning to Mr Denehan’s submission as to covenantees being indifferent to the risk or fact of their driveways being obstructed, I reject that as at odds with the evidence, inherently improbable and unrealistic.

The conclusion I draw from SW’s evidence on this point, which makes clear that all letters exhibited to his statement were from persons willing to give formal evidence, including orally, is that there is very strong opposition to the Development and that the impact of additional traffic at drop off and collection times (i.e the combined effect of additional noise, parking and obstruction, traffic congestion) are widely held fears and concerns amongst the class of persons represented by Ds, ie those with the benefit of the Covenant.

However, the question is whether those fears and concerns relate to the use of TCSF’s land for a purpose which shall or may be or grow to be in any way a nuisance or annoyance?

There is cogent evidence that NPR, DA and Hollyfast Road (HR) are already busy roads. Mr Leonard, who gave expert evidence in the form of a noise impact assessment, measured the existing traffic flows at the junction of NPR and DA between 07.30 and 15.30 on a weekday in January 2012 to be on average 714 vehicles per hour (vph). He worked on the assumption that traffic flow would increase to 1192 vph, calculated that that would represent a 16% increase in noise, and concluded that such an increase would be barely perceptible. In cross-examination, Mr Leonard accepted that the reason the noise increase would be barely perceptible was because the additional vehicles were assumed to pass evenly over the space of an hour. He acknowledged that he had assumed that all vehicles would be moving and that he had not factored in opening and shutting of doors or engines starting. More importantly, when asked to recalculate the noise increase if 400 additional vehicles were to pass within 15 minutes, Mr Leonard calculated that the increase would be in the order of 50% and opined that such an increase would be noticeable; that is noticeable above an already noisy threshold.

Mr Harminder Aulak gave oral expert evidence on behalf of TCSF, speaking to his own report and the written reports of his colleague Mr Philip Cook, about traffic and parking management. Mr Paul Silcock gave expert evidence on behalf of Ds. Mr Aulak is a disarmingly sensible and responsible person; he gave evidence in the same manner, and that is clearly his default setting. He factors his own approach into the assumptions and predictions he makes about the behaviour of others, and it is this which leads him to his views that the access road and drop off point with parking spaces for 19 vehicles, additional parking spaces for up to 26 vehicles if the children’s designated play area is used for parking, and the further possibility of access to parking in the overflow staff parking area for a possible 12 vehicles will all be used in an orderly manner by parents who will not be troubled by the inconvenience of have to queue to enter the access road from the right on NPR and/or to exit the access road to the left or the right onto NPR because any inconvenience will be outweighed by being able to drop off the child or children within the School’s perimeter rather than on the public highway. Mr Aulak also appeared to assume that the School’s traffic marshals might assist in ensuring that any on Site roads to be crossed by children could be safely crossed. This was an expectation on JMcN’s part as she naturally put safety of the children as a very high priority. However, TCSF’s plan relating to traffic marshals is that they are to concentrate on keeping traffic flowing.

Mr Silcock’s evidence was to the effect that in the real world traffic does not flow at a uniform rate, rather it tends to bunch. As to utilisation of parking spaces along the access road or in the play area, Mr Silcock’s view is that parents will need to be “incentivised” to opt into such an arrangement for drop off and collection. Mr Silcock readily accepted that TCSF would do what it could to ensure that traffic on the Site and that the movement of pupils was safe. Mr Silcock’s view is that what happens in reality is that parents are on the whole in a hurry, and they tend to park where there is a space convenient to the route they wish to take and proximate to the school in question. Mr Silcock agreed with Mr Denehan that as a general proposition most people want to behave responsibly; but, Mr Denehan did not ask the follow up question of whether, in Mr Silcock’s professional opinion borne out of his work, such intentions are a reliable guide to how people do or are likely to behave. Mr Silcock’s view of additional parking for more than 19 vehicles was that while a number of parents might be prepared to use the play area for drop off and collection, the majority would not. For these reasons, Mr Silcock is of the opinion that the access road and drop off scheme will not work as TCSF intends. Mr Silcock also expressed the view, in response to cross-examination about some parents wanting a quick drop off and others wanting a chat, that the effect will be to block people (that is covenantees) in quite frequently.

Overall, Mr Silcock’s view is that the proposed access point and arrangements for drop off and collection will cause traffic congestion in the locality, particularly along NPR and HR. Such congestion will obviously affect other covenantees wishing to access those roads at or around school drop off and collection times.

Mr Silcock was asked to view a DVD of parents dropping off children at TCSF’s current site of Bablake School (which is a combined senior and junior school) and state whether what he observed was consistent with his evidence as to parents’ intentions; as the DVD clearly showed, his answer was that many parents were not acting lawfully or reasonably.

In my judgment, Mr Silcock’s evidence provides the more reliable guidance for the court on traffic and parking management.

In relation to difficulties being caused to parking on the public highway or the extended verges, I accept SW’s evidence that there is a long established practice; that, by convention, local residents accommodate one another; and, that this practice will be disrupted at drop off and collection times. However, I also accept Mr Denehan’s submission that this is an opportunity which local residents, such as SW and MW, enjoy but it is not a legal right and it is not protected by the Covenant.

However, the position is different for those covenantees who have off street parking on their own property and whose access is at risk of obstruction by inconsiderate parking. The risk of such obstruction will be a twice daily occurrence, 5 days a week, for 30 or more weeks of every year. There is no precise evidence as to the number of covenantees who would be affected, but the correspondence exhibited to SW’s 2^nd statement includes a statement that the conversion of front gardens to parking areas has increased since planning permission was given for the School. At one level that may be viewed as hearsay evidence of which some notice may be taken; at another level, it may be of assistance when considering inherent probabilities. Either way, on all the evidence, including my view of the locality, I am satisfied and find that the prospect of such obstruction occurring to a number of covenantees is not fanciful but is a realistic likelihood.

If fortification from other circumstantial evidence is needed, I bear in mind KG’s evidence and DVD, and the photographic and DVD evidence of drop off at the current Bablake School. This evidence is more than sufficient to tackle and bring down Mr Denehan’s submission that the incidence of delinquent parking by parents is much exaggerated as a risk. Looked at from the perspective of TCSF proving its case, there is no evidence of parents having a propensity to avoid parking obstructively or illegally in practice.

Mr Denehan’s submission that covenantees with rights to access their property for parking will be protected from obstruction by the law and by its enforcement is shown to be unrealistic by the evidence of current parking at Bablake School and by the evidence of KG and ST as to what actually happens on a day to day basis.

Mr Denehan also submits that annoyance at obstructive parking reveals a sensibility which is not protected by the Covenant. Adding particulars, Mr Denehan submits that the risk of obstruction on say 400 occasions for up to half an hour over the course of the year is a trivial fear. In my judgment, it is not. It seems to me to be at least comparable to the fear regarded as “strong evidence” by Bowen LJ in Tod-Heatly and regarded as a breach of a nuisance and annoyance covenant by Cotton LJ and Lindley LJ.

Taken in the round, the traffic issues (noise, parking and obstruction, and congestion) caused by the operation of the School are such that they shall or may be or grow to be a nuisance or annoyance. Although it is not necessary for me so to do, I make this finding on the balance of balance of probabilities having regard to all the evidence in this case.

Finally, I turn to the provision in the Covenant that “.. the said land or any building or structure … hereafter to be erected thereon [shall not] be used … for any purpose … which may tend to depreciate or lessen the value of the Vendors adjoining or adjacent property”.

Mr Denehan submits that the specified purpose of this part of the Covenant (protection of the value of the Vendors’ adjoining or adjacent property) is to be contrasted with the specified purpose of all the preceding restrictions in the Covenant (protection of the Vendors and their successors in title or their lessees or tenants). Mr Denehan submits that the significance is that the protection of value for the benefit of only the Vendors, ie STWC, and that it relates to the whole of the retained land and not to any or various parts or parcels thereof. Mr Denehan submits that the reason for this is clear, that STWC wished to protect the value of the retained land as a whole because STWC intended to sell that land in one lot for development, which is what happened in 1935. Thus, Mr Denehan submits, the protection of value of the whole of the retained land would matter to STWC but not to a developer who would divide it up into building plots.

In my judgment, having regard to the language and structure of the first restriction and the Covenant as a whole, there is considerable force in Mr Denehan’s submissions, and I accept them.

Even if those submissions are wrong, the evidence as to the effect of the Development on value does not enable me to reach a conclusion that it may cause a tendency to depreciate or lessen the value of any covenantee’s property because the acceptable margin for difference of opinion as to valuation set by the RICS is 10% and there is no suggestion that any property value will be affected to any such degree.

Pausing here, Mr Denehan’s submission as to the purpose of this part of the restriction is also significant in that it serves to confirm that the area of land intended to have the benefit of the Covenant is that sold to Mr Cooksey Jnr (i.e. the retained land).

In conclusion, I decline to make the second declaration sought by TCSF.

That is my judgment.