Easements: seldom an easy solution in law
An easement is a right that attaches to a piece of land, which permits its users to carry out certain acts over a neighbouring piece of land. When the land is sold, the easement is always passed with it – and the easement cannot be sold separately. Typical easements include rights of way, rights to light, rights of support and rights for underground services (such as water, drainage, gas, electricity, or telephone and television cables) to pass beneath the land of one or more neighbouring properties.
Given the protection afforded to so many different rights under English law, it may come as a surprise to find that a right to a view is not protected. This has been the position as far back as Aldred’s Case from 1610, in which it was established that the right to a view is too broad and to qualify as an easement, a right must be “sufficiently definite”.
This leads to the question of how one can seek to protect a view if the law is not designed to assist. Historically, there have been a number of ways in which property owners could protect the right to a view, although none are without drawbacks.
One solution is for the property owner to enter into a licence or contract with the landowner who could potentially block the view. However, as with all contracts, in order to be binding, consideration would need to be provided in the form of payment. The cost of this would be at the discretion of both parties, with no upper limit. Even then, the contract would not pass on with the land as an easement would, so any new landowner would have to pay to enter in to a new contract with the other landowner, to restrict them from developing their land. This would almost certainly deter prospective buyers.
Positive covenant v restrictive covenant
Alternatively, the property owner could persuade the other landowner to enter in to a covenant. A covenant is another type of contract, in which the covenantor promises either to do something (this is called a ‘positive covenant’) or not to do something (called a ‘restrictive covenant’). To protect the right to a view, the landowner would need to enter into a restrictive covenant not to build or plant anything that could block the view. The important distinction between a restrictive covenant and a licence is that a restrictive covenant is sold along with the land, so will therefore bind future landowners.
Clearly, for property owners, the means of protecting their rights to a view are far from satisfactory, with the law heavily weighted in favour of the adjoining landowner, who is able to demand unlimited amounts of money before agreeing to enter into a licence or covenant not to develop their land. With this in mind, it was therefore a surprise (and a indeed a relief for property owners) when the court ruled in the case of Davies v Dennis and Others  that a restrictive covenant not to cause “nuisance or annoyance” was enough to prevent neighbouring land from being developed in a way that would obscure a view.
In this case, the defendant, Mr Davies, and the claimants, Mr and Mrs Dennis and others, lived on Heron Island in the River Thames at Reading. Each of their properties was part of a residential estate comprising 47 three-storey houses. The judge described how “a particular feature of the development was its closeness to the river and the views that each house was afforded of the Thames […] gained by deliberately designed gaps between the houses.’
The developers entered in to identical transfers with the management company and the purchasers, which included Mr and Mrs Dennis, the other claimants and the other property owners on the estate. Each transfer included a series of restrictive and positive covenants, the first of which prevented any buildings from being erected without written approval from the management company. The most significant covenant of all, however, was the one that obliged property owners on Heron Island “not to do or suffer to be done on the Plot or any part of the Plot anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood.” It was on this sentence that the judge’s decision and reasoning ultimately hinged.
Mr Davies obtained planning permission to build a three-storey extension to his house. Work started in May 2007 but later stopped, following complaints from the claimants. It was never disputed that each claimant would be entitled to benefit from the restrictive covenants; the question here (as in so many similar cases before) was whether blocking their view would cause “nuisance or annoyance” to the claimants. The judge assessed this by asking: “Would reasonable people […] be annoyed and aggrieved by the extension?” The judge held that his test was an objective one and must be judged by “robust and common sense standards” and held that the extension’s obscuring of the view was an annoyance – and therefore the covenant stood.
One of the most interesting questions that the case raised was the relevance of obtaining planning permission from the relevant authority and written approval from a management company. Mr Davies argued that, in having to obtain planning permission and written approval, the requirement not to cause ‘nuisance or annoyance’ could only be interpreted as concerning the covenantor’s activities on his plot and did not extend to erecting ‘annoying’ buildings.
It was recognised by all the parties, however, that while the phrase “nuisance or annoyance” is borrowed from common law, and interference with a right to a view does not amount to a common law nuisance, covenants of this nature still offer greater protection than the common law provides.
Davies v Dennis is something of a landmark case in the law of property and neighbour disputes, and suggests that the tide may be turning with regard to protection of the right to a view under English law. The case highlights how important it is for a property owner who is thinking of developing their land to check the title deeds for covenants and not to assume that permission gained from a local authority and/or management company under a separate covenant will protect them from any breach of covenant against nuisance.
Posted on May 24th, 2012 by Lyons Davidson