Re Kershaw’s Application: LT 1975

Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours.
Held: The neighbours would ‘suffer considerably from the noise of builder’s vehicles, from the construction of the driveway and by the general disturbance associated with building works’. This would be a considerable disadvantage for up to a year and ‘One of the questions, perhaps the most important question I have to decide, is what weight I should give to this intensive inconvenience and noise generated by builders’ traffic for this very limited period. Clearly for that period the restrictive covenant does secure practical benefits of substantial value or advantage to (the objector). On the other hand, I cannot think that such a literal construction of the section is intended, but rather one should look at the matter in a broader context and regard this as a short term, albeit intensive interference but small and not so substantial in relation to the overall long term enjoyment of the property.’
In principle, protection from short term disturbance arising from construction, although providing a ‘substantial’ benefit during the construction period, had to be looked at in a broader context for the purposes of section 84.


Douglas Frank QC


(1975) 31 Pand CR 187


Law of Property Act 1924 84


England and Wales

Cited by:

CitedShephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
CitedWinter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 01 May 2022; Ref: scu.238677