|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
The second authority relied upon by the appellants is Sampson v. Hodson-Pressinger  3 All E.R. 710. The plaintiff was statutory tenant of a flat (flat 6) in a converted house in Belgravia. On 31 March 1978 the landlord granted him a lease for 99 years with the usual covenant for quiet enjoyment. The landlord made alterations to the flat above (flat 7) which included the construction of a tiled terrace on the roof over the plaintiff's living room. On a date which does not appear in the report, the landlord granted a 99 year lease of the upper flat to a tenant who took possession on 11 August 1978. The tiles had not been properly laid and as a result the plaintiff was seriously disturbed in his living room by the impact noise of people walking about on the terrace. The Court of Appeal held that the landlord was liable in nuisance. It does not appear that the pleadings placed reliance on the covenant for quiet enjoyment, but Eveleigh L.J. mentioned it in passing:
I think with respect that this reasoning, while possibly correct on the facts, omits some essential steps. At the time when the plaintiff was granted his lease, it must have been contemplated by the parties that the flat upstairs would be used for ordinary residential occupation in accordance with the way it was constructed. It could not therefore have been intended that such use would be a breach of the covenant for quiet enjoyment. It could have amounted to a breach only if the cause of the noise was some act of the landlord or the tenant of No. 7 claiming under him which could not fairly have been within the contemplation of the parties when the plaintiff took his lease. If the terrace had not then been in existence, I can see the argument for saying that the parties could not have contemplated that the plaintiff would have people walking about on his roof. As the building then stood, that may have been an unreasonable use to make of the roof. If people did so regularly, with the authority of the landlord, in such a way as to cause substantial interference with his enjoyment of the premises, it could have been a breach of the covenant for quiet enjoyment. And if the landlord adapted the roof to enable his tenant and her guests to walk upon it, he would be obliged to do so in a way which protected the tenant beneath from unreasonable noise. But this argument depends entirely upon the adaptation of the terrace taking place after the grant of the plaintiff's lease. It has no application to the present case in which the premises were in their present condition when the appellants took their tenancies.
I turn next to the law of private nuisance. I can deal with this quite shortly because it seems to me that the appellants face an insuperable difficulty. Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the plaintiff's land. The primary defendant is the person who causes the nuisance by doing the acts in question. As Pennycuick V.-C. said in Smith v. Scott  Ch. 314, 321:
What is the nuisance of which the appellant's complain ? The sounds emanating from their neighbours' flats. But they do not allege the making of these sounds to be a nuisance committed by the other tenants. Mr. Goudie Q.C., who appeared for Miss Baxter, said that if necessary he would contend that it was. But I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other. As Lord Goff of Chieveley said in Cambridge Water Co. v. Eastern Counties Leather Plc.  2 A.C. 264, 299:
Of course I accept that a user which might be perfectly reasonable if there was no one else around may be unreasonable as regards a neighbour. As Bramwell B. remarked in Bamford v. Turnley (1862) 3 B. & S. 62, 83, it may in one sense be quite reasonable to burn bricks in the vicinity of convenient deposits of clay but unreasonable to inflict the consequences upon the occupants of nearby houses. Likewise, it may be reasonable to have appliances such as a television or washing machine in one's flat but unreasonable to put them hard up against a party wall so that noise and vibrations are unnecessarily transitted to the neighbour's premises. But I do not understand how the fact that the appellants' neighbours are living in their flats can in itself be said to be unreasonable. If it is, the same, as I have said, must be true of the appellants themselves.
On this part of the case the appellants again relied upon Sampson v. Hodson-Pressinger  3 All E.R. 710, to which I have already referred. In that case the Court of Appeal held that the use of the terrace over the plaintiff's roof was not only a breach of the covenant for quiet enjoyment by the landlord but also a nuisance committed by the upstairs tenant for which she and the landlord were both liable. My Lords, in my opinion this decision can be justified only on the basis that having regard to the construction of the premises, walking on the roof over the plaintiff's flat was not a use of the flat above which showed reasonable consideration for the occupant of the flat beneath. It was not, in Baron Bramwell's phrase, "conveniently done." If the upstairs tenant was going to use the roof in that way, it had to be suitably adapted to protect the plaintiff from noise. I do not regard it as authority for the proposition that normal and ordinary user, in a way which shows as much consideration for the neighbours as can reasonably be expected, can be an actionable nuisance.
If the neighbours are not committing a nuisance, the Councils cannot be liable for authorising them to commit one. And there is no other basis for holding the landlords liable. They are not themselves doing anything which interferes with the appellants' use of their flats. Once again, it all comes down to a complaint about the inherent defects in the construction of the building. The appellants say that the ordinary use of the flats by their neighbours would not have caused them inconvenience if they had been differently built. But that, as I have said more than once, is a matter of which a tenant cannot complain.
I would therefore dismiss both appeals.
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.
Most people in England today live in cities. Many of them live cheek by jowl with their neighbours. They live in terraced houses, purpose-built blocks of flats, or flatlets created by the conversion of houses into separate residential units. Modern building regulations require proper sound insulation to be installed, but this is often lacking in older buildings or conversions. In its absence each occupier is likely from time to time to be disturbed in the enjoyment of his property by noise caused by the activities of his neighbours, as they are by his. Where the disturbance is intermittent and relatively slight the parties usually accept the need to put up with the annoyance they cause each other. But what if it is continuous and intolerable?
Where the offending noise is occasioned by the ordinary use of residential premises, so that it cannot be brought to an end except by leaving them vacant, the only practical solution is to install proper sound insulation; but that is expensive. Where the sufferer is an owner-occupier, he must either bear the cost himself or persuade his neighbour, who is likely to be suffering similar disturbance by noise emanating from his premises, to share the cost with him. Where the sufferer is a tenant, he would obviously like his landlord to carry out the work, but there is normally no legal obligation on him to do so. The law has long been settled that there is no implied covenant on the part of the landlord of a dwelling house that the premises are fit for human habitation, let alone that they are soundproof. Parliament has intervened in the case of furnished tenancies and tenancies at a low rent, but subsequent inflation has deprived the legislation of any practical application to unfurnished tenancies. In its Report Landlord and Tenant: Responsibility for State and Condition of Property (1996) (Law Com No. 238) the Law Commission recommended that a covenant that the premises are fit for human habitation should be implied in leases of dwelling houses of less than seven years, but rejected a proposal that this should cover sound insulation.
The question in these appeals is whether the position is different where the tenant and his neighbour share a common landlord. Can the tenant, who cannot sue his landlord because his own property admits noise, have an action against him because his neighbour's emits it? Can the tenant, who cannot compel his landlord to install sound insulation in his own property, oblige him to install it in his neighbour's? And since each tenant is both the victim of the disturbance caused by his neighbour and the cause of similar disturbance to his neighbour, can they join forces to compel their common landlord to install sound insulation to make both their properties soundproof?
The answer is to be found in the words of Martin B. in Carstairs v. Taylor (1871) L.R. 6 Exch. 217 at p. 222:
Lord Goddard C.J. spoke to the same effect Kiddle v. City Business Properties Ltd.  1 K.B. 269, at pp. 274-5:
The doctrine does not depend on fictions, such as the ability of the tenant to inspect the property before taking the lease. It is simply a consequence of the general rule of English law which accords autonomy to contracting parties. In the absence of statutory intervention, the parties are free to let and take a lease of poorly constructed premises and to allocate the cost of putting them in order between themselves as they see fit. The principle applies whether the complaint relates to the state and condition of the demised premises themselves or, as in the cases cited, of other parts of the building in which the demised premises are located. Of course, the tenants of local authority housing do not negotiate the terms of their tenancy agreements. They take what they are offered on terms set by the local authority. But the meaning and effect of contractual arrangements cannot be made to depend on the parties' relative bargaining power. If it is thought right to redress any imbalance by importing terms in favour of the weaker party, this is a matter for Parliament.
The tenants accordingly accept that, in the absence of a statutory or contractual obligation to such effect, they cannot compel their landlords to install sound insulation. They invoke the tort of nuisance and the covenant for quiet enjoyment to obtain indirectly that which they cannot obtain directly. They complain of the sound emanating from the adjoining property, allege that it constitutes a legal wrong for which the landlord is responsible, and seek orders to restrain its continuance. In theory the landlord could avoid the cost of installing sound installation by obtaining possession of the flat where the sound originates and leaving it vacant; though he might equally well choose to obtain possession of the flat belonging to the complainant. This solution is not, however, available in practice, since all the flats are subject to secure tenancies.
In each of the cases under appeal the landlord is a local authority. In the first of the two cases it is the London Borough of Southwark. It owns a number of blocks of flats in Herne Hill, built shortly after the end of the First World War. The individual flats are let to tenants. The terms of each tenancy are in standard form and include a covenant in the following terms:
This is an abbreviated version of the conventional covenant for quiet enjoyment, but it is common ground that it has similar effect.
Some of the tenants complained of the absence of adequate soundproofing in their homes. They stated that they wished the matter to go to arbitration. Between 1994 and 1996 they made applications to the Arbitration Tribunal maintained by the Council in accordance with provisions in that behalf contained in the Council's standard form of tenancy agreement. The tenants' evidence was striking. It showed that the ordinary day to day activities of each household were plainly audible to its neighbours. One of the tenants testified:
Her neighbour could presumably have given evidence to the like effect in relation to the noise emitted from her flat. Life in these conditions must be intolerable. Unless one or other of adjoining flats is to be left permanently empty, the only practical solution is to install soundproofing between them.
The Arbitration Tribunal's jurisdiction is limited to the resolution of disputes arising out of an alleged breach of a tenancy agreement. It found that the Council was in breach of the covenant for quiet enjoyment and ordered it to carry out effective soundproofing of the flats. The Council appealed to the High Court. Its appeal was dismissed by Laddie J., but its further appeal to the Court of Appeal was allowed by a majority. On the tenants' appeal to your Lordships' House, the parties formulated the question to be decided as follows:
There is no means of differentiating between (A) and (B), and the answer must be either (c) or (d).
In the second case the landlord is the London Borough of Camden. It is the owner of a Victorian terraced house on three floors. The house was divided into two flats at some time prior to 1975. In that year the Council converted it into three flats, one on each floor. The conversion had the effect of reducing the sound insulation between the floors of the house. At that time there was no applicable building regulation requiring sound insulation between dwelling houses. Such requirements were not extended to inner London until 1986.
In 1992 the Council let the first floor flat to Miss Baxter on a weekly tenancy. The other two flats on the ground and second floor were already let to the present tenants. Miss Baxter's tenancy is in the Council's standard form. This includes two clauses in the following terms:
Miss Baxter brought proceedings in the County Court against the Council alleging that, because of the inadequate sound insulation in the house, the ordinary day to day activities of her neighbours in the flats above and below her were clearly audible to her and seriously interfered with her enjoyment of her flat. She testified:
She alleged that this amounted to a nuisance at common law for which the Council was responsible, and that it was also a breach of the covenant for quiet enjoyment in Clause B4. After some earlier misadventures the case was heard by H.H. Judge Green Q.C. He found that the noise suffered by Miss Baxter as a result of the ordinary use of their flats by the tenants above and below her constituted an unreasonable interference with Miss Baxter's enjoyment of her flat. He attributed this to the combination of two factors, the conversion of the house in 1975 and the continuing occupation of the flats above and below after she had moved into her flat. He also found that the sound insulation between Miss Baxter's living room and the room immediately above fell below the standards now required by the relevant Building Regulations and was "unacceptable." Despite these favourable findings of fact, the Judge dismissed the Action, and Miss Baxter's appeal was unanimously dismissed by the Court of Appeal.
I shall deal first with Miss Baxter's claim in nuisance, and then with the claims by the tenants in both cases that their landlord is in breach of the covenant for quiet enjoyment.Nuisance
The law of nuisance is concerned with balancing the conflicting interests of adjoining owners. It is often said to be encapsulated in the Latin maxim sic utere tuo ut alienum non laedas. This suggests a strict liability, but in practice the law seeks to protect the competing interests of both parties so far it can. For this purpose it employs the control mechanism described by Lord Goff of Chieveley in Cambridge Water Co. v. Eastern Counties Leather Plc.  2 A.C. 264 at p. 299 as "the principle of reasonable user - the principle of give and take".
The use of the word "reasonable" in this context is apt to be misunderstood. It is no answer to an action for nuisance to say that the defendant is only making reasonable use of his land. As Sir George Jessel M.R. insisted in Broder v. Saillard (1876) 2 Ch. D. 692, at pp. 701-702 that is not the question. What is reasonable from the point of view of one party may be completely unreasonable from the point of view of the other. It is not enough for a landowner to act reasonably in his own interest. He must also be considerate of the interest of his neighbour. The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him. The principle which limits the liability of a landowner who causes a sensible interference with his neighbour's enjoyment of his property is that stated in by Bramwell B. in Bamford v. Turnley (1860) 3 B. & S. 62, at pp. 83-84:
It is true that Bramwell B. appears to justify his conclusion by the fact that the resulting nuisances are normally of a comparatively trifling character, and that is not the present case. But he cannot have intended the defence to be confined to such cases. Trifling nuisances have never been actionable, and Bramwell B. was searching for the principle which exempts from liability activities which would otherwise be actionable. His conclusion was that two conditions must be satisfied: the acts complained of must (i) "be necessary for the common and ordinary use and occupation of land and houses" and (ii) must be "conveniently done", that is to say done with proper consideration for the interests of neighbouring occupiers. Where these two conditions are satisfied, no action will lie for that substantial interference with the use and enjoyment of his neighbour's land that would otherwise have been an actionable nuisance.
In Ball v. Ray (1873) L.R. 8 Ch. D. 467 the occupier of a house in a street in Mayfair had many years previously converted the ground floor into a stable. A new occupier altered the location of the stable so that the noise of the horses became an annoyance to the next-door neighbour and prevented him from letting his house as lodgings. Lord Selborne L.C. said at pp. 469-470:
The stabling of horses may have been necessary for the common and ordinary use and occupation of a dwelling house in 1873, but the layout of the premises was so altered that it was no longer "conveniently done".
In my opinion Tuckey L.J.  2 W.L.R. 566, at p. 574, was correct in stating that the ordinary use of residential premises without more is not capable of amounting to a nuisance. As he rightly explained, this is why adjoining owner-occupiers are not liable to one another if the party wall between their flats is not an adequate sound barrier so that the sounds of every day activities in one flat substantially interfere with the use and enjoyment of the other.
Counsel for Miss Baxter is prepared to argue if necessary that the tenants of the other flats could be held liable to her in nuisance. In this he would be wrong; their activities are not merely reasonable, they are the necessary and inevitable incidents of the ordinary occupation of residential property. They are unavoidable if those tenants are to continue in occupation of their flats. But his primary submission is that the Council is liable in nuisance as the common landlord. In this he is, in my opinion, plainly wrong.
Once the activities complained of have been found to constitute an actionable nuisance, more than one party may be held legally responsible. The person or persons directly responsible for the activities in question are liable; but so too is anyone who authorised them. Landlords have been held liable for nuisances committed by their tenants on this basis. It is not enough for them to be aware of the nuisance and take no steps to prevent it. They must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property: see Malzy v. Eichholz  2 K.B. 308. But they cannot be held liable in tort for having authorised the commission of an actionable nuisance unless what they have authorised is an actionable nuisance. The logic of the proposition is obvious. A landlord cannot be liable to an action for authorising his tenant to do something that would not be actionable if he did it himself.
Counsel for Miss Baxter relies on the fact that the Council not only let the adjoining flats for residential occupation but did so without first installing adequate sound insulation. It thereby authorised the use of the flats for residential occupation in circumstances which, the argument runs, inevitably caused a nuisance. But in my opinion this takes the matter no further. What Miss Baxter must show, but cannot show, is that they inevitably caused an actionable nuisance. The Council has no obligation to soundproof her property to keep noise out, whether it emanates from her neighbours or from traffic or aircraft. It is under no positive duty to her to soundproof the adjoining flats in order to keep the noise in; such a duty could only arise by statute or contract. It is under no duty to bring the nuisance to an end, whether by regaining possession of the flats or by soundproofing the premises, unless it is an actionable nuisance.