Homeowner overturns restrictive covenant so he can build extension

A homeowner has been granted permission to add a two-storey extension to his property despite objections from his neighbour.

The case involved neighbours on an estate of houses around a private road constructed in the 1980s. The properties were subject to a building scheme imposing restrictive covenants.

One homeowner gained planning permission to construct a two-storey extension.

His neighbour objected on the basis that once built it would breach the covenant, which obliged owners “not to do … anything on or about the property … which shall or may grow to be an annoyance … to the owners of any other property on the Estate”.

The homeowner applied for a declaration that the extension would not breach the covenant.

The neighbour counterclaimed for a declaration that the extension would breach the covenant, and that the construction works would also breach the covenant, as a disturbance.

The judge ruled in the homeowner’s favour, holding that the applicable test was whether the matters complained of would be an annoyance to a reasonable person. He held that a reasonable person would not object.

The neighbour argued that the proper test was to ask whether the reaction of a person who was annoyed by the activity in question fell within the range of reactions which a reasonable person might have.

However, this test would mean that even if the reasonable person would not be annoyed by the activity, it could be restricted by the covenant if there was a person who was annoyed whose view could not be described as unreasonable.

That set the bar too low and would be a surprising result.

Please contact us if you would like more information about restrictive covenants or any aspect of buying or selling a property.