Landlord and tenant: a noisy building

The High Court in Tejani v Fitzroy Place Residential Ltd and another [2022] EWHC 2760 (TCC); [2022] PLSCS 178 has reiterated that for noise to give rise to an actionable private nuisance it must be of a level that materially interferes with the ordinary comfort of the average person living in a property, taking into account the character of a neighbourhood. The claimant was the long leaseholder of a flat situated in a block at Fitzroy Place, London, W1T 3BP. The first defendant was the lessee’s landlord. The second defendant was the developer of Fitzroy Place. In July 2012 the lessee purchased the apartment off-plan. The development was completed in May 2016, whereupon the lessee was granted a lease of the flat by the landlord for a term of 990 years, commencing on 1 January 2015. The lessee brought a claim against the landlord and the developer for noise emanating from the façade of the flat. The lessee alleged that the noise emitted could be heard intermittently throughout the day and night and was loud enough to wake him and his wife. He claimed that the noise constituted an actionable nuisance for which the landlord was liable. Alternatively, he argued that the landlord was in breach of the covenant of quiet enjoyment contained in clause 4.1 of the lease. As against the developer, he alleged that it was in breach of clause 5.6, an agreement whereby the developer was required to take reasonable steps to procure that any defects in the works which related to or affected the flat were remedied as soon as reasonably practicable on the lessee giving written notice of any such defect within 23 months of the certificate date – namely by May 2018. The claim against the developer failed as it was accepted that the lessee had failed to give the required written notice within the requisite timeframe. Further, the court found that the developer had taken reasonable steps to ensure the defect was remedied. The lessee claim in private nuisance and breach of contract stood and fell together. On the facts, the court found that the lessee had not proved that the noise being emitted was such to give rise to an actionable nuisance. In so doing, the character of the neighbourhood, which was ordinarily a relevant factor, was not particularly pertinent in the present case. The flat was located in central London where noise intrusion into the flat was apparent. Further, the noise complained of was not a general environmental noise, but a distinct click/tick sound that was at times masked by the ambient noise within the flat. The High Court noted that a key material indicator as to whether the noise interfered with the ordinary comfort of the average person living in the flat was whether it interfered with a person’s ability to sleep at night. The evidence from the expert was that level of the noise recorded in the flat would not wake an occupant of the flat nor materially interfere with the ordinary comfort of an average person living in the flat. On the lessee’s own evidence, he had stayed in the flat, which he and his family used as a pied-à-terre, to recuperate from major surgery in 2021 and for special occasions. Additionally the flat was not the lessee’s main residence. Although the issue of quantum of damages did not arise due to the findings on liability, relying on Dobson v Thames Water Utilities [2009] EWCA Civ 28, the High Court observed that a claimant had to establish that they had actually suffered a loss of amenity for an award of substantial damages to made, otherwise any damages awarded was likely to be nominal in amount. Elizabeth Dwomoh is a barrister at Lamb Chambers