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House of Lords
Session 1998-99
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Judgments - London Borough of Southwark and Another v. Mills and Others (A.P.)
Baxter (A.P.) v. Mayor etc. of the London Borough of Camden

Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Clyde Lord Millett














ON 21 OCTOBER 1999


My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Hoffmann and Lord Millett. Although I have great sympathy with the tenants who have to endure a very disagreeable level of noise, it seems to me impossible to hold that the landlord can be liable in nuisance for conduct which is not a nuisance on the part of the tenant. I agree that a breach of a covenant of quiet enjoyment is not limited to direct and physical injury to land and that excessive noise in principle may constitute a substantial interference with the possession or ordinary enjoyment of the demised premises. But it seems to me that on well established authority it cannot be held in the present cases that the landlord was in breach of any covenant of quiet enjoyment.

    Accordingly for the reasons given by my noble and learned friends, I too would dismiss both appeals.


My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Hoffmann and Lord Millett. For the reasons they have given, I would also dismiss both appeals.


My Lords,

    The appellants in these two appeals, Mrs. Tracey Tanner and Miss Yvonne Baxter, are respectively tenants of the London Boroughs of Southwark and Camden. Mrs. Tanner lives in a block of flats on Herne Hill. Miss Baxter occupies the first floor flat in a converted Victorian house in Kentish Town. They both complain of being able to hear all the sounds made by their neighbours. It is not that the neighbours are unreasonably noisy. For the most part, they are behaving quite normally. But the flats have no sound insulation. The tenants can hear not only the neighbours' televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.

    Each of appellants has brought proceedings against her council, as landlord, seeking an order that it do something to remedy the situation. But the Court of Appeal has decided in both cases that the tenant has no legal remedy. Mrs. Tanner and some other tenants in her block of flats commenced arbitration proceedings against Southwark Council in accordance with the terms of her tenancy agreement. The Arbitration Tribunal made an award ordering the Council to install soundproofing. The award was upheld on an appeal to Laddie J. [1998] 3 W.L.R. 49 under section 1(2) of the Arbitration Act 1979. But his judgment was reversed by the Court of Appeal (Schiemann and Mantell L.JJ.; Peter Gibson L.J. dissenting) [1999] 2 W.L.R. 409 and the award set aside. Miss Baxter brought proceedings in the Central London County Court. His Honour Judge Green Q.C. dismissed her action and his judgment was affirmed by the Court of Appeal (Stuart-Smith, Otton and Tuckey L.JJ.) Both tenants appeal to your Lordships' House.

    Neither tenancy agreement contains any warranty on the part of the landlord that the flat has sound insulation or is in any other way fit to live in. Nor does the law imply any such warranty. This is a fundamental principle of the English law of landlord and tenant. In Hart v. Windsor (1844) 12 M. & W. 68, 87 Parke B. said:

    "There is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let."

And in Edler v. Auerbach [1950] 1 K.B. 359, 374, Devlin J. said:

    "It is the business of the tenant, if he does not protect himself by an express warranty, to satisfy himself that the premises are fit for the purpose for which he wants to use them, whether that fitness depends upon the state of their structure, the state of the law, or any other relevant circumstances."

It is true that in each tenancy agreement the Council agreed to keep the structure in repair. Such an obligation would in any case be implied by section 11 of the Landlord and Tenant Act 1985. But the appellants do not rely upon this covenant and cannot do so. Keeping in repair means remedying disrepair. The landlord is obliged only to restore the house to its previous good condition. He does not have to make it a better house than it originally was: see Quick v. Taff Ely Borough Council [1986] Q.B. 809.

    In many cases, of course, the tenant does not have the bargaining power to exact an express warranty as to the condition of the premises or the freedom of choice to reject property which may not meet his needs. This is often the case with local authority housing. For this reason, Parliament has in various ways intervened to protect certain tenants from the bleak laissez-faire of the common law. A number of techniques have been used. One has been to provide that statutory warranties as to the fitness of the premises for human habitation should be implied in tenancy agreements of certain dwellings. Such a term was implied by section 12 of the Housing of the Working Classes Act 1885 into lettings of houses and flats at annual rents (in London) of less than £20. For some years the limit was periodically increased to keep pace with inflation until section 6(1) of the Housing Act 1957 fixed it at £80 a year. But since then it has remained at that figure. The legislation remains upon the statute book as section 8 of the Landlord and Tenant Act 1985 but there can now be very few lettings in London to which it can apply. The existence of the limited statutory implied warranty has, however, inhibited the courts from developing the common law in this area. In McNerny v. London Borough of Lambeth (1988) 21 H.L.R. 188, 194 Dillon L.J. said that the legislature had "conspicuously refrained" from updating the statutory rent limit and it was therefore not for the courts to create liabilities which Parliament had not thought fit to enact. Taylor L.J. spoke to the same effect. This seems to me to show a proper sensitivity to the limits of permissible judicial creativity and to be no more than constitutional propriety requires. In 1996 the Law Commission, in its report Landlord and Tenant: Responsibility for State and Condition of Property (Law Com No 238) recommended (in paragraph 11.16) that a statutory warranty that a dwelling-house is fit for human habitation should be implied into any lease for less than seven years. The Commission also recommended (in paragraphs 11.28-29) that the criteria for determining whether a dwelling-house was fit for human habitation should be those listed in section 604 of the Housing Act 1985 (as amended). These include such matters as dampness, adequate provision for lighting, heating and ventilation, facilities for cooking and effective drains. But they contain no mention of sound insulation. The Commission recorded (at paragraph 4.44) that sound insulation was a factor which had been suggested for inclusion in the fitness standard but made no recommendation.

    A second statutory technique has been to confer powers upon local authorities to make closing orders which prohibit the occupation of dwellings unfit for human habitation or demolition orders which require them to be demolished. Such powers are now contained in Part IX of the Housing Act 1985. They are an incentive to landlords to ensure that their properties comply with the fitness standards specified in theAct. There are also less drastic powers contained in section 189 of the Housing Act 1985 which empowers local authorities to serve notices requiring work to be done in order to make the house fit for habitation. None of these powers are directly relevant because they do not apply to local authority housing. The authority cannot make orders against or serve notices upon itself. But the significant point is that the standard of fitness is that to which I have already referred in section 604 of the Housing Act 1985. It makes no reference to sound insulation.

    A third statutory technique is to prevent the creation of sub-standard housing in the first place. This is achieved by the requirement that new buildings and conversions should conform to standards laid down in building regulations. Local authorities have had power to make such regulations or bye-laws since the middle of the last century. Mrs. Tanner's block of flats on Herne Hill was constructed in about 1919. Ms. Baxter's terrace house was converted in 1975. Both the construction and the conversion would have had to comply with bye-laws made under powers contained in the London Building Acts. But these contained no requirements concerning sound insulation. Ms. Baxter's conversion included the replacement of some brick interior walls with plasterboard on stud partitions and the replacement of the old plaster-on-lath ceilings with skimmed plasterboard. These changes made the sound insulation rather worse. But they did not contravene the bye-laws in force at the time. The Building Act 1984 replaced the previous system of local bye-laws with nationally applicable regulations made by the Secretary of State for the Environment. The Building Regulations 1985 (SI 1985/1065) contained for the first time a requirement that walls and floors which separate one dwelling from another should resist the transmission of airborne and impact sound: see Part E of Schedule 1 to the Regulations. Similar provisions are now contained in the Building Regulations 1991 (SI 1991/2768). But the regulations apply only to buildings erected or converted after they came into force. They are of no assistance to the appellants.

    In the absence of any modern statutory remedy which covers their complaint, the appellants have attempted to fill the gap by pressing into service two ancient common law actions. They are the action on the covenant for quiet enjoyment and the action of nuisance. My Lords, I naturally accept that if the present case falls squarely within the scope of either of these actions, the appellants must succeed. But if the question is whether the common law should be developed or extended to cover them, your Lordships must in my opinion have regard to the fact that Parliament has dealt extensively with the problem of substandard housing over many years but so far declined to impose an obligation to install soundproofing in existing dwellings. No doubt Parliament had regard to the financial burden which this would impose upon local authority and private landlords. Like the Court of Appeal in McNerny v. London Borough of Lambeth (1988) 21 H.L.R. 188, 194, I think that in a field such as housing law, which is very much a matter for the allocation of resources in accordance with democratically determined priorities, the development of the common law should not get out of step with legislative policy.

    I shall consider first the covenant for quiet enjoyment. This is contained in clause 1 of Mrs. Tanner's tenancy agreement. It says: "The tenant's right to remain in and to enjoy the quiet occupation of the dwelling house shall not be interfered with by the Council. . . " Clause B4 of Ms. Baxter's agreement says "The Council shall not interfere with the tenants' rights to quiet enjoyment of the premises during the continuance of the tenancy." Read literally, these words would seem very apt. The flat is not quiet and the tenant is not enjoying it. But the words cannot be read literally. The covenant has a very long history. It has been expressed or implied in conveyances and leases of English land for centuries. It comes from a time when, in a conveyancing context, the words "quiet enjoyment" had a technical meaning different from what they would today signify to a non-lawyer who was unacquainted with their history. So in Jenkins v Jackson (1888) 40 Ch.D. 71, 74, Kekewich J. felt obliged to point out that the word "quietly" in the covenant "does not mean undisturbed by noise. When a man is quietly in possession it has nothing whatever to do with noise... 'Peaceably and quietly' means without interference - without interruption of the possession." Likewise in Kenny v. Preen [1963] 1 Q.B. 499, 511 Pearson L.J. explained that "the word 'enjoy' used in this connection is a translation of the Latin word 'fruor' and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it."

    The covenant for quiet enjoyment is therefore a covenant that the tenant's lawful possession of the land will not be substantially interfered with by the acts of the lessor or those lawfully claiming under him. For present purposes, two points about the covenant should be noticed. First, there must be a substantial interference with the tenant's possession. This means his ability to use it in an ordinary lawful way. The covenant cannot be elevated into a warranty that the land is fit to be used for some special purpose: see Dennett v. Atherton (1872) L.R. 7 Q.B. 316. On the other hand, it is a question of fact and degree whether the tenant's ordinary use of the premises has been substantially interfered with. In Sanderson v. Berwick-upon-Tweed Corporation (1884) 13 Q.B.D. 547 the flooding of a substantial area of agricultural land by water discharged from neighbouring land occupied by another tenant of the same landlord was held to be a breach of the covenant. In Kenny v. Preen [1963] 1 Q.B. 499 a landlord's threats to evict the tenant, accompanied by repeated shouting and knocking on her door, was held to be a breach. It is true that in Browne v. Flower [1911] 1 Ch. 219, 228 Parker J. said that:

    "to constitute a breach of such a covenant there must be some physical interference with the enjoyment of the demised premises, and that a mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy, or otherwise is not enough"

and in Phelps v. City of London Corporation [1916] 2 Ch. 255, 267, Peterson J. said it was "at least doubtful" whether a nuisance by noise was a breach of the covenant. For my part, however, I do not see why, in principle, regular excessive noise cannot constitute a substantial interference with the ordinary enjoyment of the premises. The distinction between physical interference with the demised premises and mere interference with the comfort of persons using the demised premises recalls a similar distinction made by Lord Westbury L.C. for the purposes of the law of nuisance in St. Helen's Smelting Co. v. Tipping (1865) 11 H.L.Cas. 642. That distinction was no doubt justifiable in that context on pragmatic grounds, but I see no reason why it should be introduced into the construction of the covenant for quiet enjoyment. I would not be willing to say that Kenny v. Preen [1963] 1 Q.B. 499 was wrongly decided. The fact that the appellants complain of noise is therefore not in itself a reason why their actions should fail.

    There is however another feature of the covenant which presents the appellants with a much greater difficulty. It is prospective in its nature: see Norton on Deeds (2nd ed. 1928) pp. 612-613. It is a covenant that the tenant's lawful possession will not be interfered with by the landlord or anyone claiming under him. The covenant does not apply to things done before the grant of the tenancy, even though they may have continuing consequences for the tenant. Thus in Anderson v. Oppenheimer (1880) 5 Q.B.D. 602 a pipe in an office building in the City of London burst and water from a cistern installed by the landlord in the roof flooded the premises of the tenant of the ground floor. The Court of Appeal held that although the escape of water was a consequence of the maintenance of the cistern and water supply by the landlord, it was not a breach of the covenant for quiet enjoyment. It did not constitute an act or omission by the landlord or anyone lawfully claiming through him after the lease had been granted. The water system was there when the tenant took his lease and he had to take the building as he found it. Similarly in Spoor v. Green (1874) L.R. 9 Ex. 99 the plaintiff bought land and built houses upon it. The houses were damaged by subsidence caused by underground mining which had taken place before the sale. The Court of Exchequer held that there was no breach of the covenant for quiet enjoyment which had been given by the vendor. Cleasby B. said (at p. 108):

    "It seems to me impossible to say that there is a breach of covenant for quiet enjoyment by reason of the subsidence of the house in consequence of the previous removal of the coal. This subsidence of the house was a necessary consequence of the condition of the property bought by the plaintiff . . ."

    The tenant takes the property not only in the physical condition in which he finds it but also subject to the uses which the parties must have contemplated would be made of the parts retained by the landlord. Anderson v. Oppenheimer (1880) 5 Q.B.D. 602, in which it was contemplated that the cistern would be used to contain water, demonstrates this proposition. An even more pertinent case is Lyttelton Times Co. Ltd. v. Warners Ltd [1907] A.C. 476. The plaintiffs owned a hotel in Christchurch, New Zealand, next to the premises in which the defendants operated a printing press. They made an agreement under which the defendants would rebuild their premises and grant a lease of the upper floors to the plaintiffs for use an additional hotel bedrooms. Unfortunately the noise and vibrations of the press beneath caused substantial inconvenience to the occupants of the bedrooms. The plaintiffs claimed an injunction to restrain the defendants from working their press. They said that the defendants knew that they intended to use the premises as bedrooms and were under an implied obligation not to interfere with their convenient use. But Lord Loreburn L.C., giving the advice of the Privy Council, said that the plaintiffs also knew that the defendants intended to use their premises for printing. He went on (at p. 481):

    "When it is a question of what shall be implied from the contract, it is proper to ascertain what in fact was the purpose, or what were the purposes, to which both intended the land to be put, and having found that, both should be held to all that was implied in this common intention...[If] it be true that neither has done or asks to do anything which was not contemplated by both, neither can have any right against the other."

    If one stands back from the technicalities of the law of landlord and tenant and construes the tenancy agreement in accordance with ordinary contractual principles, I think that one reaches the same conclusion. In the grant of a tenancy it is fundamental to the common understanding of the parties, objectively determined, that the landlord gives no implied warranty as to the condition or fitness of the premises. Caveat lessee. It would be entirely inconsistent with this common understanding if the covenant for quiet enjoyment were interpreted to create liability for disturbance or inconvenience or any other damage attributable to the condition of the premises. Secondly, the lease must be construed against the background facts which would reasonably have been known to the parties at the time it was granted. The tenant in Anderson v. Oppenheimer (1880) 5 Q.B.D. 602 must be taken to have known that the building had a water system and that the landlord would therefore keep the cistern supplied with water. The hotel owners in Lyttelton Times Co. Ltd. v. Warners Ltd. [1907] A.C. 476 must be taken to have known that the lessor of their bedrooms would be operating a printing press downstairs. They did not realise that the noise and vibrations would be a problem, but that was because of the way in which the premises had been constructed. On that point the landlord gave no warranty. Against this background, the lease could not be construed as entitling the tenant to close down the landlord's business.

    In the Court of Appeal in Mrs. Tanner's case (Southwark London Borough Council v. Mills [1999] 2 W.L.R. 409) Peter Gibson L.J. delivered a dissenting judgment. He said that if the noise made by neighbouring tenants in the course of their ordinary use of their flats amounted to an interference with Mrs. Tanner's reasonable use of her flat, she could be estopped from complaining only if she had expressly or impliedly consented to the noise. In the present case, there was no evidence about what the tenants had known about the lack of soundproofing before they took their tenancies. But in my opinion a requirement of consent to the noise goes too far. It is sufficient that the tenants must reasonably have contemplated that there would be other tenants in neighbouring flats. If they cannot complain of the presence of other tenants as such, then their complaint is solely as to the lack of soundproofing. And that is an inherent structural defect for which the landlord assumed no responsibility. The Council granted and the tenant took a tenancy of that flat. She cannot by virtue of the terms of that tenancy require the Council to give her a different flat.

    It remains only, on this part of the case, for me to comment on two authorities upon which the appellants strongly relied. The first is Sanderson v. Berwick-upon-Tweed Corporation (1884) 13 Q.B.D. 547, to which I have already referred in another context. The Corporation let a farm to Sanderson. It reserved in favour of Cairns, another tenant farmer, the rights to use a drain across one of Sanderson's fields and to enter and repair it. Water discharged by Cairns leaked through the drain and flooded Sanderson's land. He sued the landlord on the covenant for quiet enjoyment. Fry L.J., giving the judgment of the Court of Appeal, said, at p. 551:

    "...[T]he damage here has resulted to the plaintiff from the proper user by Cairns of the drains passing through the plaintiff's land which were improperly constructed. In respect of this proper user Cairns appears to us to claim lawfully under the defendants by virtue of his lease, and to have acted under the authority conferred on him by the defendants. The injury caused to the field appears to us to have been, within the meaning of the covenant in that behalf contained in the lease to the plaintiff, a substantial interruption by Cairns, who is a person lawfully claiming through the defendants, of the plaintiff's enjoyment of the land, and so to constitute a breach of the covenant for quiet enjoyment for which the defendants are liable in damages."

The appellants argue that their neighbouring tenants are likewise making "proper use" of their flats but the improper construction of the building, like the improper construction of the drain, results in an interference with the appellants' lawful use and possession of their own premises. In my opinion, however, these parallels are misleading. Fry L.J., in the passage which I have cited, is not saying that Cairns, in flooding the plaintiff's land, was making a "proper use" of the drain as against the plaintiff. He makes it quite clear that it was not. The reference to "proper use" is for the purpose of deciding whether the landlord is liable for what Cairns had done. This depended upon whether Cairns was "lawfully claiming under" the landlord and that in turn depended upon whether he was using the drains in a manner authorised by his lease. It is in this sense that he describes his use of the drains as "proper."

    The present case is not concerned with whether the neighbouring tenants, in using their flats in the ordinary way, are lawfully claiming under the landlord. They obviously are. The question is rather whether their conduct amounts to a breach of the covenant for quiet enjoyment at all. In Sanderson's case the flooding of the land by Cairns was improper and a breach because he had a very limited right to discharge water onto the plaintiff's land. He could do so only through the drains. If the drains were badly made so that they would not hold the water, it was his or his landlord's responsibility to ensure that they did. A right to entry had been reserved to enable him to do so. But in the present cases, the rights of the tenants of neighbouring flats to use them in a normal way are not qualified in any way. As against the appellants, there is nothing improper about their neighbours' use of their flats.

    In the Court of Appeal in Mrs. Tanner's case (Southwark London Borough Council v. Mills [1999] 2 W.L.R. 409) Mantell L.J. said that he regarded Sanderson v. Berwick-upon-Tweed Corporation (1884) 13 Q.B.D. 547 as indistinguishable from the case before him. But he said that it was in conflict with the decision of the Court of Appeal in Duke of Westminster v. Guild [1985] Q.B. 688. In that case, the question was whether a landlord was obliged to repair a drain serving the demised premises which passed under the landlord's retained land. The Court of Appeal held that no such obligation could be implied and that it did not fall within the scope of the covenant for quiet enjoyment. Slade L.J. said (at p. 703):

    "The express covenant for quiet enjoyment and implied covenant against derogation from grant cannot in our opinion be invoked so as to impose on [the plaintiffs] positive obligations to perform acts of repair which they would not otherwise be under any obligation to perform."

Mantell L.J. said that he preferred the latter case and applied the principle stated by Slade L.J. But I do not regard the two cases as being in conflict. The landlord in Sanderson was obliged to repair the drain on Sanderson's land only if he or his other tenant wanted to use it. Otherwise they ran the risk of exceeding their right to discharge water onto the tenant's land. But the drain in Duke of Westminster v. Guild [1985] Q.B. 688 was on the landlord's land and he was not using it. Nor was anyone claiming under him. The tenant wanted it repaired for his own benefit. This the landlord was not obliged to do. It is a general principle that the grantor of an easement of way or drainage is not obliged to keep the way or drain in repair. In my opinion, therefore, Mantell L.J. was quite right to apply the principle stated by Slade L.J. in Duke of Westminster v. Guild and need not have been troubled by Sanderson. That principle seems to me to apply a fortiori to the present appeals. The appellants are attempting to use the covenant for quiet enjoyment to create not an obligation to repair but a more onerous obligation to improve the demised premises.