Tenants of badly soundproofed council flats disturbed by noise from ordinary use of neighbouring flats – Whether noise amounting to actionable nuisance – Whether councils in breach of covenant of quiet enjoyment – Court of Appeal dismissing tenants’ claims – Appeal dismissed
The tenants in the first case entered into individual tenancies for flats owned by Southwark Council. The terms of each tenancy were in standard form and included a covenant for quiet enjoyment. The tenants complained of inadequate soundproofing in their homes and, in 1994 and 1996, made applications to the arbitration tribunal. They stated that they could hear all the private and most intimate moments of their neighbours’ lives and claimed that the council were in breach of their covenant for quiet enjoyment. The tribunal found that Southwark Council were in breach of the covenant and ordered them to carry out effective soundproofing of the flats. The council’s appeal to the High Court was refused, but a further appeal was allowed by the Court of Appeal: [1998] 3 EGLR 46.
The tenant in the second case entered into a weekly tenancy for a flat owned by Camden Council in 1992. The flat was in a Victorian terraced house on three floors, which had been divided into three flats in 1975. The conversion had been carried out at a time when there were no building regulations requiring sound installation between dwelling-houses, and the works had reduced the sound insulation between the floors of the house. The tenancy was in the council’s standard form, which included a covenant for quiet enjoyment and a clause that “The Council shall take such steps as are reasonably practicable to prevent the continuation of any nuisance caused to the tenant, having regard to all the circumstances of the case.” The tenant brought proceedings in the county court against Camden Council, alleging that, because of inadequate sound insulation in the house, the ordinary day-to-day activities of her neighbours in the flats above and below were clearly audible. She alleged that this amounted to a nuisance at common law for which the council were responsible and that it was a breach of the covenant for quiet enjoyment. Her claim was dismissed by the judge and her appeal was dismissed by the Court of Appeal:[1998] 2 EGLR 29.
Held: The appeals were dismissed.
1. Nuisance involved doing something on adjoining or nearby land that constituted an unreasonable interference with the utility of a plaintiff’s land. The ordinary use of residential premises without more was not capable of amounting to nuisance. Accordingly, adjoining owner-occupiers were not liable to one another if the party wall between their flats was not an adequate sound barrier so that the sound in one flat substantially interfered with the use and enjoyment of another. The council were under no obligation to soundproof the property or bring the complaint to an end unless it amounted to an actionable nuisance: Sampson v Hodson-Pressinger [1982] 1 EGLR 50 distinguished.
2. The covenant for quiet enjoyment was a covenant that the tenants’ lawful possession would not be substantially interfered with by the acts of the lessor or those lawfully claiming under him. The interference did not need to be direct or physical, and it was not a necessary precondition of liability that the acts alleged to constitute the breach would support an action in nuisance. Therefore, the fact that the appellants complained of noise that did not amount to an actionable nuisance was not in itself a reason why their actions should fail.
3. However, the covenants were prospective in their operation and thus did not apply to things done before the grant of the tenancy. The grantor’s obligations were confined to the subject-matter of the lease, namely the flats with their inadequate sound insulation. The councils had covenanted not to interfere with the tenants’ use and enjoyment of the flats with that feature. It could not be said that they had done so: Anderson v Oppenheimer (1880) 5 QB 602 and Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 affirmed; Sanderson v Berwick-upon-Tweed Corporation (1884) 13 QBD 547 distinguished; Sampson (supra) considered.
4. Any tenant who complained of the state and condition of his property should consider whether the tenancy agreement, possibly modified by statute, provided him with a remedy. Where the complaint could not be remedied without expensive improvements to the premises, it would require a clear contractual obligation to be expressed in the agreement. The covenant for quiet enjoyment was an unsuitable vehicle for such an obligation.
Kim Lewison QC and Jan Luba (instructed by Anthony Gold, Lerman & Muirhead) appeared for the appellant in the first case; Michael Barnes QC and Donald Broatch (instructed by the solicitor to Southwark London Borough Council) appeared for the respondents; James Goudie QC and Zia Nabi Anya Proops (instructed by Goldbergs) appeared for the appellant in the second case; Andrew Arden QC and Christopher Baker (instructed by the solicitor to Camden London Borough Council) appeared for the respondents.
Thomas Elliott, barrister
