Covenant Breach · Report on Title scenario
More than you would expect from the words. Nuisance has a reasonably settled meaning — noise, dust, smoke, interference with ordinary physical comfort. Annoyance is deliberately wider and has no accepted definition; it has been described as anything that genuinely raises an objection in the mind of a reasonable person. A covenant against both is a much broader restriction than one against nuisance alone.
From the e-ROT archive
This scenario is drawn from Report on Title material dealing with this specific circumstance.
Nuisance is a recognised legal concept with a body of law behind it, and it is about material interference: the activity that generates noise, dust or smoke to a degree that interferes with ordinary life next door.
Annoyance has no settled definition and is clearly wider. That width is the point of including it, and it is why a covenant mentioning both is not simply a belt-and-braces drafting habit.
If an objection has been raised about what you are doing, what was reported to you about the covenants during the purchase is where the question starts.
Find out what should have been explained → WhenIBought.comThe surprising consequence is that activity which is entirely lawful — and which no court would call a nuisance — can still fall foul of an annoyance covenant. Building work carried out with planning permission is the standard example, and the effect on a neighbour's outlook has been treated as capable of amounting to annoyance.
So a covenant of this kind sits alongside planning permission rather than behind it. Obtaining permission settles the planning question and says nothing about the covenant.
If you are buying with an extension in mind and this covenant is on the title, raise it specifically. It is one of the few covenants capable of stopping work that everything else in the transaction says is fine.
Establish who has the benefit — usually the other owners on the same estate, where the covenants were imposed by a common developer and each plot takes the benefit of the others' obligations. Covenants in that scheme are generally enforceable by neighbours, which is a stronger position than the untraceable Victorian beneficiary.
Ask what the neighbours think before you commit, if what you plan is substantial. An objection raised early is cheaper than an injunction raised late.
Where work has already been done and nobody has objected for a long time, the principles about long and open breaches may help — but a recent extension is not an old breach, and a neighbour who has just noticed is not a neighbour who has acquiesced.
From the e-ROT archive
Report on Title paragraph
You must not create a nuisance or annoyance. A nuisance is “an inconvenience materially interfering with the ordinary physical discomfort of human existence”. So for instance, an activity that causes excessive noise, dust or smoke might well be a nuisance. There is no accepted definition of an “annoyance” but it is clearly wider than “nuisance”. It has been described as anything which “really does bring an objection to the mind of a reasonable being”. …
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