Nuisance – Noise – Breach of covenant – Claimant purchasing lease of apartment off-plan from first defendant – Claimant complaining of noises emanating from façade – Whether noise constituting actionable private nuisance – Whether defendant in breach of covenant of quiet enjoyment – Whether second defendant developer liable for defects in works on apartment – Claims dismissed
The claimant purchased an apartment situated at Block 7, Fitzroy Place, London W1 off-plan in July 2012. The first defendant was the landlord of the residential apartment leases at the development and was the vendor of the apartment to the claimant. The second defendant was the developer of Fitzroy Place and employer of the main contractor for the development.
The claimant purchased the apartment pursuant to a written agreement entered into between him, the first defendant as seller and the second defendant as developer in 2012. By the agreement, the first defendant agreed to grant the appellant a lease of the apartment. The price was £2,595,000. The development was completed in about May 2016 when the first defendant granted the claimant a lease in respect of the apartment commencing on 1 January 2015 for a term of 990 years.
The claimant complained of noises emanating from the façade of the apartment. His primary claim was that the noises constituted an actionable private nuisance for which the first defendant was liable. Alternatively, it was alleged that the first defendant was in breach of the covenant of quiet enjoyment set out at clause 4.1 of the lease. Further or alternatively, the claimant claimed damages for breach of clause 5.6 of the lease on the part of the second defendant dealing with defects in the works on the apartment.
Held: The claims were dismissed.
(1) In general terms, a nuisance was an action (or sometimes a failure to act) on the part of a defendant, which was not otherwise authorised, and which caused an interference with the claimant’s reasonable enjoyment of his land, or which unduly interfered with the claimant’s enjoyment of his land. For the noise the subject of the current action to give rise to an actionable nuisance it had to be such as to materially interfere with the ordinary comfort of the average person living in the apartment taking into account the character of the neighbourhood: Cambridge Water Co v Eastern Countries Leather plc [1994] 2 AC 264, Lawrence and another v Fen Tigers Ltd and others [2014] UKSC 13; [2014] 1 EGLR 147; [2014] EGILR 57 and Kay v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC); [2022] PLSCS 144 considered.
The facts of the present case immediately begged the question of the extent of the interference with the claimant’s reasonable enjoyment of his land required before the noise would constitute an actionable nuisance. It was common ground that the alleged inconvenience needed to be more than “trifling” but beyond that the parties did not clearly identify any line of demarcation. However, the key area of dispute between the parties lay in the extent, if any, to which the noise complained of would disturb an average person’s sleep. The obvious inference being that both parties considered that a noise that led to frequent awakening at night would constitute a nuisance.
(2) The character of the neighbourhood was not particularly pertinent on the facts of this case. It was situated in central London meaning that there would be noise intrusion in the apartment. However, despite the location of the apartment, the background noise levels were reported as being relatively low. Further, the noise complained of was different to the general environmental noise intrusion. It was a distinct, albeit intermittent, click/tick sound, some but not all of which would be masked by the ambient noise in the apartment. Hence, the location of the apartment was less relevant than it might otherwise have been.
Both parties seemed to accept that a key indicator as to whether the noises were such as to materially interfere with the ordinary comfort of the average person living in the apartment was whether the noises would cause a person to wake up at night. It was common ground that the noise events were significantly reduced at night-time when compared to the daytime/evening It was also common ground that the noises were less audible from the master bedroom than in the living room.
In all the circumstances, the noise complained of was not such as to awaken the average person when sleeping in the apartment, let alone frequently. Moreover, the noise was not such as to materially interfere with the ordinary comfort of the average person. The acoustic expert evidence demonstrated that most of the sounds emanating from the façade were either inaudible or very quiet. Accordingly, the noise did not constitute a nuisance.
(3) Since the claimant’s case was that reliance on the covenant for quiet enjoyment did not really advance its case because the claim under the covenant stood or fell with its claim for nuisance, there was no need to consider the claim for breach of the landlord’s covenant of quiet enjoyment separately.
(4) There was a defect in the works within the meaning of clause 5.6 in that the façade did not comply with the specification, although it was not a major defect. By clause 5.6, the obligation on the part of the second defendant to take reasonable steps to procure that any defects in the works were remedied was imposed upon the second defendant provided that the buyer gave notice in writing to the developer of any such defects no later than 23 months following the certificate date. The natural meaning of those words was that the obligation was conditional on written notice being given within 23 months.
An email relied upon by the claimant could not constitute the written notice required by clause 5.6. It followed that the requisite written notice was not given by the claimant to the second defendant within the time limit. Therefore, the claimant could not rely on any alleged breach of clause 5.6. In the absence of the requisite notice, the second defendant would have no further liability for defects by virtue of clause 5.16.
(5) Had it been necessary to decide the point, taking all the evidence into account, it was not possible to conclude that the second defendant failed to take reasonable steps to procure that the main contractor remedy the defect as soon as reasonably practicable.
Timothy Dutton KC and Mark Lorrel (instructed by Mortimer Court Chambers) appeared for the claimant; Gary Blaker KC and Paul de la Piquerie (instructed by Bryan Cave Leighton Paisner LLP) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Tejani v Fitzroy Place Residential Ltd and another
