Southwark London Borough Council v Mills
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANTELL,LORD JUSTICE SCHIEMANN,LORD JUSTICE PETER GIBSON |
| Judgment Date | 29 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0729-20 |
| Docket Number | Case No. CHANF 98 O 436/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1998 |
In the matter of the Arbitration Acts 1950 & 1979 and in the matter of an Arbitration under the London Borough of Southwark Tenancy Agreement
[1998] EWCA Civ J0729-20
Lord Justice Peter Gibson
Lord Justice Schiemann
Lord Justice Mantell
Case No. CHANF 98 O 436/3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (MR JUSTICE LADDIE)
Royal Courts of Justice
Strand, London, WC2A 2LL
MR PATRICK ELIAS QC and MR DONALD BROATCH (instructed by Head of Legal (Contract) Services, London Borough of Southwark) appeared on behalf of the Appellant (Plaintiff).
MR KIM LEWISON QC and MR JAN LUBA (instructed by Messrs Anthony Gold, Lerman & Muirhead, London Bridge, London SE1 8TW) appeared on behalf of the Respondents (Defendants).
The appellant is the Housing Authority for Southwark. As such it owns a large number of tenanted properties including a block of flats in Casino Avenue. The block was "jerry-built" at the end of the first world war and falls far short of the standard which would be necessary under present day Building Regulations. In particular the soundproofing of the individual flats is wholly inadequate so that the occupants hear pretty well everything (and I mean everything) that is said or done by their neighbours. It is intrusive, inconvenient and often embarrassing.
So it was that some of the tenants engaged the arbitration clause in the tenancy agreement and on 8th February 1994 wrote to the appellant's chief executive in the following terms:
"We, the tenants of the flats 38—84 even nos. Casino Avenue, Herne Hill, have signed this petition because we are totally dissatisfied with the non-existence of any form of soundproofing in our homes. This has caused the break down of relations between neighbours. As individuals we have approached Southwark Council many times all to no avail. We now wish the matter to go to arbitration so that our complaint may be suitably resolved."
The matter first came before the Southwark Arbitration Tribunal on 8th April 1994 when by way of interim award the Tribunal ordered the Council to provide a surveyors' report within 30 days on the work necessary to soundproof the structure. By a further interim award of 15th July 1996 the Council was required to produce at a still later hearing a copy of the Building Regulations which to, quote from the award, "permits the continuation of the present unreasonable situation" and also to provide an update on the cost of installation of soundproofing in respect of the different types of dwelling. The final award came on 1st August 1997 by which the Tribunal reviewed the evidence on the tenant's and the landlord's side, remarked upon the fact that it had been the Tribunal's experience on a site visit that the noise levels were unacceptable, rejected the appellants suggestion that soundproofing should be carried out as and when flats became vacant, observed that the cost of carrying out sound proofing would be of the order of £8,000.00 per flat and finally held that the Council "remains obligated to carry out effective sound proofing of the flats" which were then identified. The order was in the following terms:
1. "That the Council decant the tenants in phases and carry out the work to minimise disruption.
2. Carry out the work as outlined in "Casino Avenue"—sound installation work" paragraph 2 p.2 of the bundle.
3. Check that sound proofing already carried out complies with John Pellings' (a surveyors) recommendation."
In making its award the Tribunal was acting under clause 30 (5) (a) which allowed reference to the Tribunal in case of a dispute "arising out of alleged breach by either the Council or the tenant of her/his obligations under this agreement" and clause 30 (6) (i) (c) which gave the Tribunal power "to order either the Council or the tenant to do or refrain from doing anything in order to secure compliance with the obligations of this Agreement." In the course of the interim award of 15th July 1996 the Tribunal recorded that "all the tenants had complained that the unreasonable sound interference arising from mutual activities constitutes a violation of their Tenancy Agreement with the Council especially clause 1." And in paragraph 4 of the interim award "It is our view that relevant orders can be made by the Tribunal under clause 1 of the Tenancy Agreement. Clause 1 of the standard terms and conditions provides:
"The tenant's right to remain in and enjoy the quiet occupation of the dwelling house shall not be interfered with by the Council except as set out in clauses 2(2), 16 and 27."
The exceptions cover the right in law to recover possession and the right to enter in certain specified circumstances and are not material for present purposes. In short, therefore, the Tribunal found that the appellant was in breach of the covenant for quiet occupation by reason of its failure to provide adequate soundproofing.
The appellant was dissatisfied with the Tribunal's decision. It sought and obtained leave to appeal to the High Court. The grounds relied upon as set out in the amended Notice of Originating Motion were as follows:
1 The Tribunal acted outside their jurisdiction, as set out in the Arbitration clauses of the Southwark tenancy agreement, in granting the Respondents relief in respect of alleged inadequate soundproofing.
2 The dispute giving rise to the award challenged herein was not a dispute falling within Clause 30 (5) of the agreement, and the Tribunal had no power or jurisdiction to make an award relating to the matter.
3 The allegation of lack of adequate soundproofing did not amount to an allegation of a breach of any of the Landlords' covenants under the agreement, in particular the Landlords' repairing obligations whether arising by virtue of the covenant in the tenancy agreement, or by virtue of the statutory covenant under Section 11 of the Landlord and Tenant Act 1985.
4 The Tribunal erred and acted without jurisdiction in purporting to grant relief in respect of alleged noise nuisance. The noise complained of was that generated by tenants in neighbouring flats in the normal course of daily living, and did not (and was not alleged to) amount to an unreasonable user of the premises. The noise complained did not, and could not, amount to a nuisance in law.
5 Further, and in any event, a Landlord is not, without more, liable in respect of a nuisance generated by a tenant within the tenant's demise (See Smith v Scott [1973] Ch. 314, O'Leary v London Borough of Islington (1983) 9 HLR 81).
The appeal came before Mr Justice Laddie on the 25th February 1998. It was argued for the appellant that the effect of the Tribunal's award was to treat the covenant for quiet possession as imposing on the landlord an obligation to carry out a programme of effective soundproofing of the tenants' flats. It was submitted that it would be bizarre if the standard covenant for quiet possession imposed on a landlord a greater obligation than he had undertaken through the repairing obligations in the lease so as to require the landlord to keep the property up to the standards of the present day, and, further that the law did not permit a covenant for quiet possession to be pressed into service for such a purpose.
Against that submission counsel for the tenants drew the judge's attention to the decision of this court in Sampson v Hodson-Pressinger [1981] 3 All ER 710 and the very recent decision also of this court in Baxter v The London Borough of Camden (1998) 30 HLR 501. It was said that those two authorities and in particular the second were directly in point. Counsel for the tenants argued that the law had now become that a landlord of two adjoining tenants may be in breach of the usual covenant for quiet enjoyment owed to each by reason of the fact that the reasonable enjoyment of his home by each tenant is unduly interfered with by noise generated by ordinary use of the premises by the other tenant in the manner contemplated by the letting. Counsel did not deny that to construe the covenant for quiet possession in such a way will in some cases give the tenant greater rights than under the covenant to repair and in many cases it will become indistinguishable from a covenant to improve. The judge accepted that the two authorities cited were to the point and binding upon him. He upheld the Tribunal.
Once again the appellant was unimpressed and now seeks to have the decision reversed by this Court. The grounds of appeal pose the following question of law
"Where A is a tenant of a landlord (L) of residential premises (flat 1), and (L) lets neighbouring like premises in the same building (flat 2) to B and the construction of the building is such that A & B are disturbed by the noises of normal ordinary life generated by each other to an extent which interferes with reasonable enjoyment of each flat, is (L) by reason thereof only, in breach of the usual covenant of quiet enjoyment owed to the tenants, either in respect of A, or in respect of B, or in respect of both?"
In the grounds it is contended that the judge was wrong to follow the cases of Baxter and Sampson in preference to other Court of Appeal authority and the appellant resurrects the arguments presented to the judge that the covenant of quiet enjoyment cannot be employed to secure structural improvements. Then the appellant raises a ground which does not seem to have been argued before the judge to the effect that the activities of a neighbouring tenant of a common landlord can only amount to the breach of the covenant of quiet enjoyment if those...
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