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New School Plans Overcome Restrictive Covenant

Published: 22 July 2013, in categories: Legal Updates | Commercial Property Updates | News and Updates

New School Plans Overcome Restrictive Covenant

In a decision which will assist in the interpretation of restrictive covenants, the Court of Appeal has ruled that construction of a new school on playing fields was not precluded by an 82-year-old conveyance which forbade uses of the land which might cause nuisance or annoyance to neighbouring property owners.

Objectors to the plans had argued that their enjoyment of their homes would be blighted by pollution, noise nuisance and traffic congestion arising from mothers dropping off and picking up their little ones from the proposed new school. They pointed to a restrictive covenant contained within a 1931 conveyance by which the 44-acre site had been acquired by its current owners, a charitable trust.

In a reflection of more straight-laced times, the covenant prohibited the use of the land for various business purposes that were perceived as noxious, particularly the sale of alcohol, and forbade any activity which might in any way become a nuisance, annoyance or disturbance to current or future owners of land that had been retained by the original vendor.

The landowners had been granted planning consent for the new school but their proposals were stymied when a judge accepted that those living in neighbouring streets were entitled to the benefit of the covenant and that traffic movements associated with the new school had the potential to grow into a nuisance or annoyance.

Allowing the landowners’ appeal and overturning that ruling, the Court noted that the case had been ‘swamped’ by extensive evidence relating to traffic and other issues although the outcome of the dispute really hinged on the purpose and scope of the covenant.

The covenant did not 'expressly prohibit' construction or operation of the new school and was not aimed at restricting traffic movements on public roads any more than it was aimed at preserving an open space or 'a pleasant view' for local residents. Traffic issues were primarily a matter for the highways authority and the source of any nuisance or annoyance to neighbours would be the already busy public roads, not the land in question.

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