Occupiers of badly soundproofed council flats disturbed by slightest noise from neighbouring flats – Council appealing from arbitrator’s ruling that council in breach of express covenant not to disturb tenants’ quiet occupation – Whether covenant capable of being broken where neighbours’ activity otherwise unobjectionable
The respondent tenants occupied flats in a council-owned block in London SE24 on tenancies providing for the determination of contractual disputes by the Southwark Arbitration Tribunal (the tribunal). In each agreement the council had expressly covenanted not to interfere with the tenant’s right to enjoy the quiet occupation of the flat. At a hearing conducted in or about July 1997 the tribunal accepted that the tenants had good reason to complain that the soundproofing of the flats was so inadequate that they could hear all the private and most intimate moments of their neighbours’ lives, including the switching on of every light and the opening or closing of every door.
By an award made on August 1 1997 the tribunal declared that the council were obliged to carry out effective soundproofing and made specific directions with regard to nineteen of the flats. The council appealed against the award, contending that, since the noise arose from ordinary domestic use by neighbours, the tribunal had wrongly widened a covenant for quiet possession into what was effectively a covenant to improve the flats to meet modern building standards, thus imposing an obligation more onerous than the repairing covenant given by the council. The award was upheld at first instance on the ground that the court was bound to follow the Court of Appeal decisions in Sampson v Hodson-Pressinger [1982] 1 EGLR 50 and Baxter v Camden London Borough Council [1998] 22 EG 150. The council appealed. It was common ground that the tribunal could not and did not consider the possibility of a claim in nuisance.
Held The appeal was allowed.
1. Necessary preliminary observations were that the essence of the tenants’ complaint was not the noise but the council’s failure to shield them from it, and that nuisance was not a precondition to an action for breach of covenant even though the acts complained of might coincidentally support an action in tort. As a matter of principle therefore the tribunal’s award was open to the objections that: (i) the council had not, by an act or omission after the grant of the tenancy, “interrupted” or “interfered with” the tenants’ quiet enjoyment; (ii) (as argued below) the obligation imposed by the tribunal was more onerous than the obligation to repair; (iii) the primary purpose of the covenant was to ensure that the tenant got what he appeared to be getting, in this case a poorly soundproofed flat, which the landlords were free to offer at a corresponding rent; (iv) a tenant, who would not expect to be sued for living a normal life in his flat, could hardly expect to be able to sue his landlords if other tenants led normal lives.
2. Neither the court below, nor the Court of Appeal in Baxter(supra), had been invited to consider Duke of Westminster v Guild [1983] 2 EGLR 37, which was fully consistent with the restrictive view of the covenant taken by the older authorities cited by the council. The tenants’ case, on the other hand, derived full support from Baxter (supra) and considerable support from Sampson (supra) and Sanderson v Mayor of Berwick-on-Tweed (1884) 13 QBD 547. The court was accordingly free (applying Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718) to decide which of the two conflicting lines to follow. For the reasons stated, those relied on by the council were to be preferred.
3. Per Peter Gibson LJ dissenting. A breach occurred where, as a matter of fact, the tenants’ quiet enjoyment had been substantially interfered with by the acts of the landlords or by the authorised acts of those claiming under them, it being immaterial whether the interference was caused by normal and reasonable use. The covenant did not in terms oblige the landlords to effect improvements. If they wished to avoid future claims, it was for them to decide whether to improve the neighbouring premises or keep them empty.
4. The tenants were granted leave to appeal to the House of Lords.
Patrick Elias QC and Donald Broatch (instructed by the solicitor to Southwark London Borough Council) appeared for the appellants; Kim Lewison QC and Jan Luba (instructed by Anthony Gold Lerman & Muirhead) appeared for the respondent tenants.
Alan Cooklin, barrister
