Are you intending to build an extension to your property ? If so, don’t be fooled into thinking that it is simply a matter of getting planning permission, building regulations and finding a builder.
The Heron Island case
The Heron Island case now throws into the mix the important considerations of what covenants affect property as such covenants could determine whether development of any kind can go ahead.
The important case involved a housing estate near Reading. It started with a dispute when of the property owners wanted to build an extension to his property that would have partially obscured the view of for some of his neighbours. The neighbours objected to the planning application. The planning inspector’s opinion was that whilst there would be some loss of view for one household, this did not materially effect living standards. Unlike Light and Air there is no de facto legal right to a view. Planning permission was granted.
Prohibition on Nuisance, Disturbance or Annoyance
Not prepared to give up the fight the neighbours adopted a different line of attack. The deeds for all the properties on the estate contained restrictive covenants prohibiting owners from doing anything which would constitute a nuisance or annoyance to the other owners on the estate. This is a fairly common type of covenant. One owner in particular argued that he put great value and appreciation on the river views that he currently enjoyed, which would be reduced by the extension. Also, the windows in one aspect of the development would interfere with his privacy. Other owners gave evidence that their views of the river would be partially obscured.
The impact of the Heron Island case on Conveyancing
From a conveyancing perspective the most fascinating aspect of the Heron Island case was that the obstruction of the view was minor. Notwithstanding this the court had to focus the question ‘would reasonable people, having regard to the ordinary use of their houses for pleasurable enjoyment, be annoyed and aggrieved by the extension?’ On that basis, the count found, “………. the three storey red brick extension would trouble the minds of the ordinary sensible English inhabitant of any of those three houses and in those circumstances it does constitute an annoyance within the meaning of the covenant. ”