Vertical stacking of flats altered to detriment of claimant occupier of lower flat — Defendant’s predecessor installing stone and marble flooring in upper flat — Claimant alleging intolerable noise — Court applying common law test for actionable nuisance — Extent to which regard should be had to objective numerical tests and presence of flooring covenant in defendant’s lease — Mandatory injunction granted
Since 1971, the claimant occupied a flat in a block, mostly as a statutory tenant. The flat immediately above (the upper flat) was held on a long lease that, at the date of the action, was vested in the sixth defendant (the defendant). The lease required the floor of the upper flat to be covered with suitable materials “so as to minimise the penetration of sound into other flats in the building” (the flooring covenant). During the first 19 years of his occupation, the claimant had no reason to complain of noise from the upper flat, the layout of which was similar, in all material respects, to his own. In 1990, extensive alterations were carried out to the upper flat. A new kitchen and two new bathrooms, all fitted with stone floors, were placed above the bedroom and drawing room of the claimant’s flat. A carpeted hallway was replaced with a marble floor. The claimant eventually brought proceedings, complaining that the resulting noise was intolerable.
At the trial of the action, “objective test readings” justifying the noise complaint were produced by a jointly instructed expert, who pointed to the numerical requirements stated in approved document E, issued under the Building Regulations 2000. The expert further testified that impact noise caused by the choice of flooring materials had been greatly aggravated by the changes made in 1990 to the “stacking” of the two flats, and that certain remedial steps attempted by the defendant had failed to reduce the noise to an acceptable level.
Held: The claimant was entitled to a mandatory injunction to abate the noise.
It was common ground that, having regard to all the circumstances of the case, it was a question of degree as to whether the interference with comfort or convenience was sufficient to constitute a nuisance, and that the interference had to be substantial to any person occupying the affected premises irrespective of his position in life, his age or his state of health: St Helens Smelting Co v Tipping (1865) 11 HLC Cas 642, Sedley-Denfield v O’Callaghan [1940] AC 880, and Bolton v Stone [1949] 1 All ER 238 considered.
The numerical requirements referred to were not directly applicable, but they did provide something of a yardstick by which to judge the acceptability of the evidence given by the claimant. Similarly, although the claimant could not (as statutory tenant) sue upon the flooring covenant, it was material that all the occupants in the block reasonably expected that appropriate steps would be taken to minimise the penetration of sound into other flats. On the evidence, the alleged penetration of noise was unreasonable and unacceptable.
Alex Hall Taylor (instructed by Irwin Mitchell, of Sheffield) appeared for the claimant; Christopher Heather (instructed by Farrer & Co) appeared for the sixth defendant; the first, second, third, fourth and fifth defendants did not appear and were not represented.
Alan Cooklin, barrister
