Lease — Breach — Nuisance — Architects’ offices — Quiet enjoyment — Architect tenants bringing action for damages and breach of covenants — Landlord undertaking extensive works to building — Tenants not consulted — Works taking far longer to complete than expected — Tenants losing business as result of works — Whether landlord exercising reasonable skill and care — Damages for the tenants
By a lease dated August 31 1989 the landlord demised to the tenants the ground-floor north and first-floor north of premises at 11-12 Tottenham Mews, London W1, for a term of six years at a rent of £29,500. The landlord entered into a covenant for quiet enjoyment and by clause 6(iv) of the lease were entitled to carry out the development of any neighbouring premises and to build on or into the boundary wall without payment of compensation to the tenant for any damage “or otherwise subject to the landlords exercising such right in a reasonable manner … and without any interruption of the tenants business and forthwith making good any damage caused to the demised premises”.
The tenants were both architects, practising as individuals but sharing the same premises. Their office was fully computerised without drawing boards and the style and nature of their office was an important selling point to clients, who were invited there. The premises had been marketed in 1989 as being in a quiet location. The development works began at the end of August 1990. The work involved demolition of the suspended ground floor and work to the exterior and interior, which amounted to a gutting of the unoccupied parts of the building. It involved a plain risk of noise and the generation of dust and debris such as to interfere with the businesses and comfort of the tenants. No consultation took place with the tenants beforehand. The primary facts were undisputed with many disturbances from noise, dust, vibration, fumes and interruption and discoloration of light. The work, estimated for 14 weeks, was completed in April 1991.
Held Judgment for the tenants.
1. It was inevitable that there would have been some disturbance however carefully the work had been planned.
2. The question was whether the operations were of such an abnormal character as to justify treating the disturbance created as constituting a nuisance: see Andreae v Selfridge [1938] Ch 1.
3. However, “those who say that their interference with the comfort of their neighbours is justified” as normal operations had to use reasonable and proper care and skill: supra Andreae. That decision was binding on all respects.
4. Under the terms of lease which gave the landlords the right to develop the neighbouring premises, it was required that the right be exercised “in a reasonable manner”. The tenant was to have unimpeded access, there was to be no interruption of the tenant’s business; and the landlords were to make good any damage “forthwith”. Those three requirements were absolute.
5. Quite apart from finding that the defendants did not carry out the development in a reasonable manner, they broke each of the requirements of that clause.
6. As a result the tenants were entitled to damages as it was accepted that physical inconvenience caused them to lose substantial profits. The damages would include, inter alia, financial loss, inconvenience, and in the case of the second tenant, loss of chance in winning a competition in which he gained second place: see Kitchen v Royal Air Force Association [1958] 1 WLR 349, for the principle enunciated on a claim for loss of chance.
Richard Seymour QC and Rhodri Thompson (instructed by Black Graf & Co) appeared for the plaintiff tenants; Adam Pearson (instructed by A K Horsey, of Blanford Forum) appeared for the defendant landlord.
