Long v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Chadwick,Lord Justice Ward |
| Judgment Date | 27 March 2002 |
| Neutral Citation | [2002] EWCA Civ 403 |
| Docket Number | Case No: B2/2001/0967 CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2002 |
[2002] EWCA Civ 403
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON
COUNTY COURT (HIS HONOUR JUDGE GOLDSTEIN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Chadwick and
Lady Justice Arden
Case No: B2/2001/0967 CCRTF
Mr Ashley Underwood QC and Miss K Bretherton (instructed by Southwark Legal (Contract) Services) for the Appellants
Mr Jan Luba QC and Miss B Harris (instructed by Evans & Company) for the Respondent
This is an appeal against the order of His Honour Judge Goldstein sitting at the Central London Civil Trial Centre dated 12 April 2001 in proceedings against the appellants for damages for breach of a tenancy agreement and nuisance and other relief. The breaches related to the collection of refuse from a block of flats at Townsend House, Bermondsey, London SE1 5BU, one of which was let the respondent.
By the order the appellants were ordered to pay the respondent damages in the sum of £13,500 and ordered to carry out certain work within six months, that is by 11 October 2001. The work involved repairing the hoppers to the rubbish chute in the block of flats so as to reduce noise and the emission of foul air. Moreover the appellant was ordered to inspect the refuse chamber for the presence of permanent ventilation and to provide a minimum ventilation area and to protect refuse from vermin and flies. In addition the judge gave general liberty to restore the matter within six months.
The respondent has lived in 5,Townsend House ("the premises") since 1983, and she is a secure tenant. Her flat is next to a bin cabin (a small room) housing a large paladin bin into which runs a rubbish chute. Tenants on the upper floors can either put rubbish in the chute by opening a hopper in the wall on one of the upper landings or they can put rubbish in the paladin bin. The chute is inadequate in size and tenants frequently leave their rubbish beside the bin rather than in it because the bin itself is often full. As a result the doors to the bin cabin are not kept closed. Moreover, the respondent complains that there is considerable noise from the rubbish chute as tenants who cannot get their rubbish to go down bang the doors on the hoppers. In addition, there are or have been smells and maggot infestations.
We are told that the problems with the chute stem from the growth in use of black plastic bags which are too big for the chute and from the increase in the volume of domestic rubbish. It is also suggested that people who were not living on the estate may have brought refuse on to the estate and left it outside the bin cabin.
The appellants are the respondent's landlord. The respondent's tenancy agreement ("the contract") was granted on 3 October 1983. The tenancy agreement is subject to the appellants' standard conditions. The material conditions are as follows:—
"Cleaning and Decorating
18 (3) The tenant must ensure that she/he does not cause any obstruction to communal landings and staircases and corridors at any time and must only dispose of rubbish in a refuse chute, bin or other designated area.
(4) The Council shall take reasonable steps to keep the estate and common parts clean and tidy and to mow the grassed areas of the estate (if any) and to cultivate and keep tidy any flower beds, hedges and trees on the estate.
Council's Obligation for Maintenance of Facilities
22. While the Council provides to the dwelling house, lifts, communal T.V. aerials, entry-phones, fire fighting equipment, lighting of the common parts, or facilities for the collection of refuse, these shall be kept in repair and proper working order."
It will be noted that condition 18 imposes an obligation to take "reasonable steps" whereas condition 22 imposes an absolute obligation to keep items in repair and proper working order. The "common parts" were defined to include any part of the building of which the respondent's flat forms part, and accordingly includes the interior of the rubbish chute and the bin cabin referred to above. The "estate" was defined to include the estate in which the block of flats was situated. The conditions further provided that any dispute between the appellants and tenants could be submitted to arbitration and that the arbitration award would be enforceable in the courts.
The judge's judgment
In a lengthy unreserved judgment, the judge took a firm view on the merits in favour of the respondent, whose evidence he preferred to that of the appellants' officers. He found that the facilities for the removal of rubbish at Townsend House were inadequate.
In 1993 the respondent obtained an award from the Southwark Arbitration Tribunal. In addition to awarding £600 compensation, the tribunal directed that the appellants should check daily for rubbish inside and outside the cabin, remove rubbish daily, sweep the chamber daily, wash and disinfect the chamber weekly, check the chute daily and jet clean the chute twice a year. The judge found that the appellants did not comply with this award (judgment, page 2). The appellants attributed some of the blame to the contractors which failed to fulfil their contracts and to the actions of other tenants over which they had no control. There was, however, no application before the judge to enforce this award. However, the judge took the view that the terms of the arbitration award could be used as an illustration of the respondent's obligations under the tenancy agreement (judgment, pages 12 and 20, discussion after judgment, page 29).
The judge held that the rubbish collection facilities at Townsend House were inadequate (judgment, page 3). He held that there was no way in which the appellants could comply with their obligations under the tenancy agreement unless the rubbish bins were relocated or the respondent was moved to another flat (judgment, page 19).
The judge made no finding as to whether the situation was any different when the respondent took up her tenancy in 1983 (judgment page 4).
The judge held that the local authority had since 1993 been on actual notice of each and every defect and problem that the respondent had drawn to their attention (judgment, pages 9 and 18). He also found that in the period 1993 to 2001 the appellants had failed totally in their obligations under the tenancy agreement to deal with the continuing and changing problems that resulted from the location of the bin cabin one foot from the respondent's front door. Accordingly, he accepted the respondent's case. He found that she had to wear ear plugs at night in order to get a decent night's sleep because tenants used the rubbish chutes out of hours. They were supposed to use them only between 8 a.m. and 8 p.m.
The judge rejected the argument that the appellants were not in breach of contract because there had been a reasonable system in operation. On his findings of fact there had been continuous fundamental breaches of their obligations imposed on them by the tribunal's award (judgment, page 20). He rejected the argument that the appellants had done everything they could (judgment, page 11).
He also found that the appellants' actions amounted to breach of the covenant of quiet enjoyment which was implied in the contract. He distinguished Mills v Southwark LBC [2001] 1 AC 1. In that case when tenants took possession of their flats they knew that the walls were thin and that they had to live with noise. The House of Lords held that there was no breach of the covenant for quiet enjoyment. The judge held that the effect of the decision was that in appropriate circumstances a substantial interference with the enjoyment of premises could amount to a breach of the covenant for quiet enjoyment. It was a question of fact and degree. The judge found that on the facts of this case there was "a substantial breach of the enjoyment of the premises" (judgment, page 23). In addition, the Mills case could be distinguished because the respondent was the only person affected by this problem.
The judge also held that "consistent with my findings of fact, the eleven year period of time within which I have found as a fact the council had actual notice of what had been going on here, could certainly amount, in my view, in law to a nuisance", in which the appellant had acquiesced (judgment, page 25). However, he made no separate finding on nuisance "as far as any remedy is concerned" (judgment, page25).
The judge assessed damages for the breaches of the tenancy agreement which he found at £13,500 on the basis that the appropriate award was £2,500 per annum for the period from 1993 to 1995, and at the rate of £1,500 per annum for the next five and a half years. He rounded up the resulting figure to £13,500.
The judge gave liberty to apply in six months' time if the parties could not agree on the further steps which the appellants ought to take to give effect to his judgment. We are told that if necessary the respondent would make an application for an order requiring the appellant to ensure that the paladin bin was emptied more frequently or to increase the size of the chute and the hoppers, or if that did not resolve the problem to move the bins away from the respondent's flat or provide the respondent with another flat. These orders might go wider than the arbitration award. There is, however, no evidence about modifications that might be made to the rubbish systems.
The appellants set about complying with the judge's order. They repaired the hoppers and inspected...
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