School traffic not covered by anti-nuisance covenant
Covenant not directed to 'familiar problems' of congestion and noise, Mummery LJ says
Traffic to and from a new school was not covered by a covenant designed to prevent activities which 'grow to be a nuisance, damage, annoyance or disturbance', the Court of Appeal has ruled.
The court heard that residents in Coventry objected to the building of a new independent junior school on playing fields protected by the covenant.
The trustees of the Coventry School Foundation applied to the High Court to obtain a declaration under Section 84 of the Law of Property Act 1925 that the building of a new school and access road on Bablake playing fields in Coundon would not breach restrictive covenants contained in a 1931 conveyance.
Delivering the leading judgment in Trustees of the Coventry School Foundation v Whitehouse and others [2013] EWCA Civ 885, Lord Justice Mummery said the High Court refused to grant such a declaration.
He said the Foundation had obtained planning permission to build a new junior school on a very small part of the burdened land, resulting from the merger of Bablake Junior School and Bablake Preparatory School.
Mummery LJ said it was true that the increase in traffic at certain times of day in term and the "familiar problems" of congestion, obstruction and noise would have a connection with the proposed school, but this was not the source of nuisance and annoyance to which the covenant was directed.
"The source of the traffic nuisance and annoyance objected to is the lawful use of the public highway by the general public, not the taking place or carrying out of any prohibited activity on the burdened land," he said.
"The covenant is aimed at activities on the burdened land as the source of the nuisance, such as fumes or smell or noise from an offensive trade or business, which may spread from and beyond the boundaries of the burdened land into the local neighbourhood."
Mummery LJ concluded that traffic issues on the highway did not "go to the activities of the Foundation on the burdened land or its user of it".
He allowed the appeal and granted the declaration. Lord Justices McCombe and Beatson agreed.