Landlord and tenant — Covenant for quiet enjoyment — Nuisance — Inadequate sound insulation between flats — Whether breach of landlord’s covenant — Whether liable in nuisance
In 1992 the
defendant council granted the plaintiff tenant a tenancy of a first-floor flat
in a Victorian property converted into three flats. The tenant contended that
there was insufficient sound insulation between her flat and the flats on the
ground and second floor. Her proceedings against the council, for breach of the
implied covenant for quiet enjoyment in relation to the inadequate sound
insulation, were dismissed by the county court judge. The tenant appealed.
A landlord is liable for any mischief that arises from the natural and
necessary result of what he has authorised and required. He is held to know
what the natural and necessary result will be, and he is equally liable if his
reason for not having that knowledge was failure to use reasonable care to
ascertain it. It is no defence in nuisance that the premises are being used in
a normal way if the premises are not fit to be used in a normal way without
interfering with the reasonable enjoyment of adjoining occupiers. Equally, the
landlord will be held liable for breach of the implied covenant of quiet
enjoyment where the contemplated use for which the landlord let, for instance
the adjoining flat, was one which interfered with the reasonable enjoyment of
the premises in question. The date of actual or presumed knowledge is the date
of the letting to the plaintiff tenant.
This was an
appeal by the plaintiff, Yvonne Baxter, from a decision of Judge Hill-Smith in
Central London County Court, in proceedings against the defendants, Camden London
Borough Council, for damages for breach of covenant and nuisance.
James Goudie
QC and Zia Nabi (instructed by Goldbergs) appeared for the plaintiff;
Christopher Baker and Josephine Henderson (instructed by the solicitor to
Camden London Borough Council) represented the defendants.
Giving
judgment, Sumner LJ said:
This is an appeal against the decision of Judge Hill-Smith at Central London
County Court of February 9 1996.
The background
is shortly as follows. The plaintiff, Miss Yvonne Baxter, is a young single
mother living in a first-floor flat at 1 Marsden Street, London NW5. The
premises are owned by the defendants, Camden London Borough Council. It is a
Victorian property converted originally into two flats and then, in 1975, by
the defendants into three flats. The defendants let the middle flat to the
plaintiff in 1992.
The
plaintiff’s case was that there was insufficient sound insulation between her
flat and both the flat below and the flat above her. As a result she claimed
she could hear ‘all of the normal domestic activities of the occupants (of the
other 2 flats)’ as it is pleaded in the particulars of claim.
In July 1995
the plaintiff brought proceedings against the defendants on the grounds that
there was breach of the implied covenant of quiet enjoyment. Particulars were
given. It was said that as a result of the defendants’ breach, the plaintiff
had suffered loss and damage, inconvenience and ill health. Aggravated and
exemplary damages were claimed, though the basis for this is not clear.
By their
defence the defendants did not admit the allegation of inadequate
soundproofing. They said in the alternative that, even if the soundproofing was
inadequate, the building was converted in compliance with the building
regulations then in force. They counterclaimed for arrears of rent in the sum
of £146. There was a trial bundle of documents which related principally to
complaints by the plaintiff and a report of an acoustics expert, Mr Dibble,
called on her behalf. There were no witness statements and there are no notes
of the evidence. Both sides were represented before the learned judge by
counsel. The hearing lasted two days and seven witnesses were called.
Judge
Hill-Smith dismissed the plaintiff’s claim and also the counterclaim. It is
against that decision that the plaintiff now appeals.
In the course
of his judgment the learned judge, having set the scene, said:
and she (the
plaintiff) said that in the flat she was disturbed by sundry noises both
airborne and … impact noises. The noises of switches; the noises of persons
defecating in other places upstairs and the noises of radios and the like
matters. She complained.
He said of Mr
Dibble:
He gave
evidence and has produced a report which I have seen, from which it is clear
that the transmission of airborne sound and impact was not up to certain
standards … (which) were laid down by the 1991 Regulations coming into force in
1992.
Later he said
of the noise insulation:
It leaves —
in terms of general construction no doubt under modern circumstances and in
modern duties — much to be desired
He asked the
question whether there was a nuisance. He referred to witnesses called before
him in relation to hearing conversations from the flat above and said:
but was it a
noise which was a nuisance when measured by the obligation of the local
authority in 1975 upon the conversion of this premises?
He then went
on to consider that though there was an obligation to repair, there was not an
obligation to improve and concluded as follows:
Now all the
evidence, and I have sympathy in relation to these matters with the plaintiff
who is clearly affected by the degree of noise to such a degree as properly she
described her relationship with both Mrs McCreedie and Mr Owen as having been
adjusted to take account of the noise intrusions, was not in my judgment a
nuisance.
On the basis
of the learned judge’s findings, Mr James Goudie QC, for the plaintiff, argues
that the following facts can be deduced or inferred:
1. With the
other occupants leading a normal domestic life, the noise created by that
amounted to a serious interference with the ordinary life of the plaintiff.
2. That was a
natural consequence of the lack of proper insulation.
3. The lack of
proper insulation preceded the tenancy.
4. The
defendants had knowledge of this when they let in 1992. They had carried out
the conversion, they remained the landlords, and they had let the other two
flats. Nuisance was inevitable once the premises were let to the plaintiff in
1992. Alternatively, such knowledge can be presumed.
Mr Christopher
Baker, for the defendants, argued for the following facts:
1. Sounds of
ordinary user could be heard in the plaintiff’s flat.
2. The
construction of the floor between her flat and the flat above did not comply
with modern building regulations.
3. The sound
level was of a degree to cause the plaintiff to adjust her behaviour in
response to it.
4.
Notwithstanding those three points, the noise intrusion did not amount to a
nuisance because it was not sufficiently serious to interfere with everyday
comfort.
I am not clear
what arguments on the law were addressed to the learned judge, but I am
satisfied he came to the wrong conclusion.
1. In so far
as the learned judge took the date of 1975 as the time at which the nuisance
was to be considered, he was wrong. He should have considered the matter at the
date of the letting, namely 1992.
2. He was
wrong in holding that a lack of any breach of statutory duty in 1975 (when
building regulations did not cover noise intrusion) decided the question of
whether noise nuisance existed at that time or later.
3. He was
wrong to consider that the plaintiff’s duty to keep the premises in repair and
the lack of any duty to improve them had a bearing upon the question of
nuisance.
Since it is
clear that the learned judge erred in law and because he applied his findings
to that analysis of the law, it has enabled counsel to argue convincingly that
there are findings supporting their rival contentions, as I have already set
out.
The question
which has arisen is whether there are sufficient and clear findings of fact and
whether, despite the errors of law, a safe conclusion can be drawn from them. I
have come to the view that this court is unable to do so. If, for instance, the
learned judge had considered that the building regulations are not decisive and
indeed may not be important, would he or would he not have held that there was
a nuisance in 1992? Furthermore, the whole question of the defendants’
knowledge or presumed knowledge was not considered at all, though it is now
accepted to be vital.
As it seems
inevitable to me that this matter will have to be remitted to the county court
for a further hearing, I do not propose to say more about the facts. As we have
however been addressed on the law, it may assist if I set out certain
propositions and the questions that may arise on them for decision on the
remitted hearing.
First, it is
clear that the case was pleaded on the basis of breach of an implied covenant
of quiet enjoyment, though it is said having set out the particulars, in para 4
of the particulars of claim:
It is averred
that the defendants are responsible for the said nuisance.
We have not
heard full argument on this point. My preliminary view is that, although on the
facts of this case the plaintiff is putting her case to us on breach of
covenant, in this instance the difference between breach of covenant and
nuisance is not significant. The submissions to the learned judge by both
counsel and his judgment were based on nuisance.
We were
referred to a number of authorities, in particular Harris v James
[1874–1880] All ER Rep 1142; Brew Bros Ltd v Snax (Ross) Ltd
[1970] 1 QB 612; Sampson v Hodson-Pressinger [1981] 3 All ER
710*; Toff v McDowell (1993) 25 HLR 650; and Habinteg Housing
Association v James (1994) 27 HLR 299.
*Editor’s note: Also reported at [1982] 1 EGLR 50;
(1981) 261 EG 891
I draw from
them the following conclusions. A landlord is liable for any mischief that
arises from the natural and necessary result of what he has authorised and
required. He is held to know or presumed to know what the natural and necessary
result will be, and he is equally liable if his reason for not having that
knowledge was failure to use reasonable care to ascertain it. It is no defence
to a claim in nuisance that the premises are being used in a normal way if the
premises are not fit to be used in a normal way without interfering with the
reasonable enjoyment of adjoining occupiers. Equally the landlord will be held
liable for breach of the implied covenant of quiet enjoyment where the
contemplated use for which the landlord let, for instance the adjoining flat,
was one which interfered with the reasonable enjoyment of the premises in
question. The date of actual or presumed knowledge is the date of the letting
to the plaintiff.
The questions
that therefore may arise to be determined on the rehearing, which must be
subject to further argument to the trial judge, in my judgment, are:
1. Has the
plaintiff proved that the level of noise transmitted to the plaintiff’s flat
from the ordinary use of the adjoining flats was, at the date when the
proceedings were commenced, such as to interfere with her reasonable enjoyment
of her flat? That question is to be determined as a matter of fact and degree
on all the circumstances of the case.
2. If the
answer to the first question is ‘yes’, has the plaintiff also proved that the
defendants knew or should be presumed to have known that the level of noise
transmitted to the plaintiff’s flat would be such as to have that effect when
they let the flat to her in 1992?
3. If the
answer to the second question is also ‘yes’, to what damages or other relief is
the plaintiff entitled?
Accordingly, I
would allow this appeal and remit the case to the county court for a rehearing
before another circuit judge as a matter of some urgency.
Butler-Sloss
LJ agreed and did not add anything.
Appeal
allowed.
