Residential Developments and Estates - Always take into account your neighbours point of view

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. ”


by admin
Monday 14th of September 2015 09:34:29 PM