Baxter v Camden London Borough Council (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE TUCKEY,LORD JUSTICE OTTON,LORD JUSTICE STUART SMITH
Judgment Date05 November 1998
Judgment citation (vLex)[1998] EWCA Civ J1105-17
Docket NumberCase No: CCRTF 98/012412

[1998] EWCA Civ J1105-17

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

(HIS HONOUR JUDGE GREEN QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Stuart-Smith

Lord Justice Otton

Lord Justice Tuckey

Case No: CCRTF 98/012412

Yvonne Elizabeth Baxter
Appellant
and
The Mayor and Burgesses of the London Borough of Camden
Respondent

MR JAMES GOUDIE QC and MR ZIA NABI (instructed by Messrs Goldbergs) appeared on behalf of the Appellant (Plaintiff).

MR ANDREW ARDEN QC and MR CHRISTOPHER BAKER (instructed by The Borough Solicitor for The London Borough of Camden) appeared on behalf of the Respondent (Defendant).

LORD JUSTICE TUCKEY
1

Introduction

2

Where tenants of the same landlord are adjoining occupiers of flats can their landlord be liable where one tenant's reasonable use and enjoyment of his flat is interfered with by noise from the ordinary use of the adjoining flat? In London Borough of Southwark v Mills & Ors (CA 29/7/98) this court decided by a majority that in this situation the landlord was not liable for breach of his covenant of quiet enjoyment. The present case raises the question of whether the landlord can be liable in nuisance. It arises on appeal from the decision of Judge Green, QC., sitting at the Central London County Court who on 10th November 1997 dismissed the tenant's claim.

3

The Facts

4

1 Marsden Street London NW5 is a Victorian end of terrace house. In 1975 the defendant council converted the house into three one bedroom flats, one on each floor. The conversion included the replacement of the plaster on lath ceilings with skimmed plaster board. There was no statutory requirement in London at that time to provide sound insulation although building regulations required it in other parts of the country which were extended to apply to London in 1986. The only noise barriers between the flats were the plaster board ceilings and the wooden floors which were in poor condition. The house has remained in this condition ever since.

5

On 6th July 1992 the first floor flat was let to the Plaintiff and she and her young daughter have occupied it since that time. The other two flats were already let to tenants who are still there. The Plaintiff is a secure tenant and her tenancy is on the council's standard written terms which require them (as does section 11 of The Landlord and Tenant Act 1985) to keep the structure and exterior of the premises in repair. They have no contractual or statutory obligation to carry out internal repairs or improvements.

6

Clause B5 of the terms says :

"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."

7

The Plaintiff complained of noise from the flat above and to a lesser extent from the flat below from the outset. Although the council identified the problem as being due to poor sound-proofing between the flats they did nothing about it.

8

The Proceedings

9

These proceedings were started in 1995. At the hearing before Judge Green the Plaintiff's evidence was that she could clearly hear the noise generated by the day to day living of her neighbours in the flat above. She said :

"I can hear …….. normal conversation, singing, arguments, the television, snoring, coughing, bringing up of phlegm, sneezing, bedsprings, footfalls and creaking floorboards, the pull-cord light switch in the bathroom, taps running in the bathroom and kitchen, the toilet being used.. the vacuum cleaner is clearly audible as is any music played on the stereo."

10

The Judge broadly accepted the Plaintiff's evidence and found that she was not unduly sensitive to noise. Two of the Plaintiff's friends gave similar evidence. An acoustics expert who had visited the house and measured the noise was also called. He had found that the level of noise exceeded the permitted levels under building regulations which had come in to force in 1992. It was his opinion that the ordinary use of the flat above created excessive noise below. The Judge described this expert as impressive and accepted his evidence.

11

The Judge concluded that the noise emitted from the flat above and to a lesser extent from the flat below constituted an undue interference with the Plaintiff's use and enjoyment of her flat and had done so since the start of her tenancy. In reaching this conclusion he directed himself on the law in accordance with various paragraphs in Clerk and Lindsell which he cited.

12

He then considered whether the council were liable in nuisance for the undue interference which he had found and said :

"It seems to me that the answer is "no" for the Plaintiff entered into her tenancy in 1992 when the premises were in the same physical state to all intents and purposes as they were in 1975."

13

He saw the problem as one in which two principles came into conflict: firstly that it is no defence that the Plaintiff has come to the nuisance and secondly that a tenant who takes premises in a defective state cannot complain of their condition unless the terms of his tenancy or statute enable him to do so, the principle as he put it of "caveat emptor in the landlord and tenant field". The Judge gave precedence to the latter of these two principles. He also rejected the Plaintiff's case based on clause B5 of the tenancy. In case he was wrong, he assessed damages at £3,500 and said that he would have made an order requiring the council to abate the nuisance.

14

Before turning to the issues raised by the appeal I must refer to the earlier history of this case. It was first heard before another judge at Shoreditch County Court in February 1996. He dismissed the Plaintiff's claim. His reasons for doing so are not clear but the Plaintiff appealed and the case was remitted by this court for re-hearing before a different judge. In his judgment with which Butler Sloss LJ. agreed, Sumner J. said that he was satisfied that the judge had come to the wrong conclusion for three reasons. The first two do not matter for present purposes but his third reason was:

" He was wrong to consider that the Plaintiff's duty to keep the premises in repair and the lack of any duty to improve them had a bearing upon the question of nuisance."

15

The Plaintiff's case had been pleaded on the basis of breach of the covenant of quiet enjoyment and/or nuisance. Noting that the court had not heard full argument on the point, Mr. Justice Sumner said:

"My preliminary view is that although on the facts of this case the Plaintiff is putting her case to us on breach of covenant, in this instance the difference between breach of covenant and nuisance is not significant."

16

He then said that the court had been referred to a number of authorities including Sampson v Hodson—Pressinger [1981] C.A. 3 All ER 710 and continued:

" I draw from them the following conclusions. A landlord is liable for any mischief that arises from the natural and necessary result of what he has authorised and required. He is held to know or is presumed to know what the natural and necessary result will be, and he is equally liable if his reason for not having that knowledge was failure to use reasonable care to ascertain it. It is no defence to a claim in nuisance that the premises are being used in a normal way if the premises are not fit to be used in the normal way without interfering with the reasonable enjoyment of adjoining occupiers. Equally the landlord will be held liable for breach of the implied covenant of quiet enjoyment where the contemplated use for which the landlord let, for instance the adjoining flat, was one which interfered with the reasonable enjoyment of the premises in question. The date of actual or presumed knowledge is the date of the letting to the plaintiff.

The questions that therefore may arise, to be determined upon the re-hearing, (which must be subject to further argument to the trial judge ), in my judgment are:

1. Has the Plaintiff proved, that the level of noise transmitted to the Plaintiff's flat from the ordinary use of the adjoining flat was, at the date when the proceedings were commenced, such as to interfere with her reasonable enjoyment of her flat ? That question is to be determined as a matter of fact and agree on "all the circumstances of the case". And

2. If the answer to the first question is "yes" has the Plaintiff also proved that the Defendant knew or should be presumed to have known that the level of noise transmitted to the Plaintiff's flat would be such as to have that effect when they let the flat to her in 1992 ?

3. If the answer to the second question is also "yes", to what damages or other relief is the Plaintiff entitled.

17

This Appeal

18

Mr. Goudie QC on behalf of the Plaintiff /Appellant submits that having answered the first question in favour of the Plaintiff, the judge failed to ask or answer the second question at all. Had he done so he would have answered it in the Plaintiff's favour because the council carried out the conversion, remained the landlord and let the other two flats so that nuisance was inevitable once the flat was let to the Plaintiff in 1992.

19

He should have applied the principle that it was not a defence that the Plaintiff came to the nuisance. He should also have given effect to clause B5 of the tenancy. Finally, Mr. Goudie reserved the right to contend in the House of Lords that the Southwark case was wrongly decided and so the Plaintiff should also succeed on the basis that the council were in breach of the covenant of quiet enjoyment.

20

The council issued a Respondent's notice in respect of the judge's finding of...

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