Occupiers of badly sound-proofed council flats complaining of disturbance 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 – Council contending that covenant cannot be broken where noise results from normal use of neighbouring flats – Appeal dismissed
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. Clause 1 of each tenancy agreement provided that, subject to certain rights of access, the council would not interfere with the tenants’ 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 19 flats.
The council appealed against the award, contending that, since the noise complained of 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 and, in so doing, had imposed an obligation more onerous than that imposed under the repairing provisions of the tenancy agreements. The purpose of the covenant, so it was argued, was to do no more than safeguard the tenant from disturbance by adverse claimants, and “quiet occupation” should be construed accordingly: see Jenkins v Jackson (1888) 40 Ch 71; Phelps v London Corporation [1916] 2 Ch 255; Hudson v Cripps [1896] 1 Ch 265.
Held The appeal was dismissed.
The court was bound to read the older authorities relied upon by the council in the light of the more recent decisions of the Court of Appeal in Sampson v Hodson-Pressinger [1981] 3 All ER 710 and Baxter v Camden London Borough Council [1997] EGCS 102; [1997] PLSCS 187. Both imposed liability on landlords who were aware at the material time that the adjoining flat could not be let for use in the normal way without interfering with the reasonable enjoyment of the plaintiffs’ flat. Although Sampson was arguably distinguishable as a case on the law of nuisance, the same could not be said of Baxter, where the same considerations were held to apply to an alleged breach of covenant for quiet enjoyment. Only a higher court could decide whether those decisions had been given per incuriam.
Donald Broatch (instructed by the solicitor to Southwark London Borough Council) appeared for the appellants; Jan Luba (instructed by Anthony Gold Lerman & Muirhead) appeared for the respondent tenants.