London Borough of Southwark v Long [2002] EWCA Civ 403 (27th March, 2002)

Neutral Citation Number: [2002] EWCA Civ 403 Case No: B2/2001/0967 CCRTF 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 27 March 2002 B e f o r e : LORD JUSTICE WARD LORD JUSTICE CHADWICK and LADY JUSTICE ARDEN ____________________ Between: MAYOR & BURGESSES OF THE LONDON BOROUGH OF SOUTHWARK Appellants - and - KATHERINE LONG Respondent ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ 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 ____________________ HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________ Crown Copyright © Lady Justice Arden : 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 that bin chamber in accordance with his order but failed to instal additional ventilation which they were advised would make matters worse. They did not seek the judge’s directions about this, which they accept that they ought to have done and have apologised. As it is, the appellants are now in breach of the judge’s order. Submissions on this appeal The parties’ submissions fall into three parts: breach of the express terms of the tenancy agreement, breach of the covenant for quiet enjoyment and nuisance. I will set out these arguments under these three headings in turn. There is no challenge to the judge’s findings of fact. Breach of the express terms of the tenancy agreement Mr Ashley Underwood QC, who did not appear below, appears on this appeal for the appellants. He submits that the appellant had taken reasonable steps in accordance with condition 18(4) to keep the common parts clean and tidy because it had instructed contractors to clean the common parts, it held regular meetings with tenants and regular monthly inspections of the common parts. It was sufficient if the officers of the appellant believed that these things were happening. He submits that there had been few complaints by tenants and that the respondent herself had ceased to complain in 1997. The judge made no finding as to whether reasonable steps had been taken. The appellant was entitled to a finding as to whether or not it had taken reasonable steps. Mr Underwood submits that there was no obligation under the contract to relocate the bin cabin away from the respondent’s flat. Mr Underwood submits that the judge should not have found that the arbitration award had imposed a continuous obligation on the appellants in addition to condition 18(4) of the contract. Moreover, condition 18(4) had to be read in the light of condition 24(4) which imposes an obligation to inspect the common parts at six monthly intervals. Condition 24(4) of the contract is inconsistent with the suggestion that there was an absolute duty on the appellant. In addition, the appellants had taken reasonable steps to prevent tenants from using the chute out of hours or dumping rubbish. They had written to the tenants within the block and posted notices concerning the need for consideration in the use of rubbish facilities. Condition 18(3) provides that tenants must not dispose of rubbish other than in the chutes, bins or other designated area. This condition could be enforced against the perpetrators if they could be identified. Mr Underwood accepted that the council might be bound to provide other designated areas for tenants which tenants would then be obliged to use (see clause 18(3)) in order to fulfil its obligations to take “reasonable steps” under clause 18(4). The appellants have many housing estates on which rubbish chutes are similarly constructed. Mr Underwood submits that it would not be reasonable for the apppellants to have to change thousands of chutes. If chutes were relocated there may be problems for people with mobility problems on upper floors. Mr Underwood also submits that the respondent failed to give notice in accordance with the contract. The last notice was given in May 1997. Alternatively, the respondent should have mitigated her loss by drawing matters to the attention of the appellants. There was no contractual responsibility to prevent noise. In O’Connor v Old Etonian Housing Association [2002] EWCA Civ 150 , preliminary questions were raised as to the true interpretation of the statutory obligations which the landlord in that case owed to keep installations for the supply of water and other utilities "in repair and proper working order". The water pipes had ceased to be suitable to carry water to flats on upper floors due to a change in water pressure. The Court of Appeal found it unnecessary to decide whether the landlord in that case was bound to make modifications to bring property up to date to modern requirements. In the present case, there was no difficulty about the ability of the system to work. The judge contemplated that the chute system should be replaced but this went far beyond any question of adaptation. Mr Luba QC, for the respondent, submits that the judge found that the appellants were in breach of condition 18(4) by failing to keep the common parts reasonably clean and of condition 22 by failing to ensure the proper and efficient working of the system for removal of rubbish. The judge further found that there was a fundamental problem in the inadequacy of the refuse facilities for the block in that they did not work sufficiently well to allow for the disposal of refuse reasonably generated by occupiers of the block. The failure of the appellants could have been due to the inadequacy of its contract with its contractors or its failure to monitor the performance of its contractors or its failure to take action against its contractors. Mr Luba submits that the question whether or not reasonable steps were taken was not a question for the subjective belief of the local authority. The evidence placed before the judge amply justified his conclusions. As regards condition 18(4), the judge merely found that the terms of the arbitration award were illustrative of what reasonable steps were required of the appellants under the express terms. He expressly made that point in course of the discussion after judgment. The obligation to take reasonable steps did not absolve the appellants from responsibility. Moreover, the appellants were on notice at all relevant times of the matters complained of. There was no failure to mitigate. Mr Luba accepts that the express terms of the contract did not give rise to an obligation to prevent noise save in so far as that noise arises from the failure of the refuse disposal facilities to work properly. Clause 22 imposed an obligation on the landlord to keep the refuse chute in repair and working order. These chutes were not adequate to deal with refuse reasonably generated. The judge was entitled to reach this conclusion. Breach of the covenant of quiet enjoyment Mr Underwood submits that the judge erred in distinguishing the Mills case. That case shows that the covenant is prospective in nature. The rubbish chute was part of the structure of the block, built many years prior to the grant of the tenancy to the respondent and it was not a matter for which the appellant landlord assumed responsibility. Accordingly, the covenant was not breached by the matters which were the subject of complaint by the respondent. Mr Underwood submits that there was no finding that the current use of the refuse facility was not contemplated in 1983. It might have been sufficient if the use had changed to such an extent that it was not the use contemplated in 1983. Alternatively, on Mr Underwood’s submission, the covenant of quiet enjoyment is not a warranty as to fitness. Mr Underwood further submits that the noise made by other tenants using the bin hoppers and dumping rubbish outside the bin room was not action by the appellants. Accordingly, the appellants were not responsible. In addition, such matters took place outside the demised premises. Accordingly, the covenant could not be applicable in any event. Mr Luba submits that the judge was entitled to find that there had been a breach of the covenant for quiet enjoyment on the facts. Mr Luba accepts that the covenant is prospective and is not a warranty as to fitness. However, in this case there was direct physical interference with the respondent’s enjoyment of the premises since her entrance was blocked. The respondent took the premises on the basis that the facilities for removing rubbish would be able to cope with refuse reasonably generated by other tenants. The parties did not contemplate that the rubbish facilities would become inadequate. Moreover, the terms of the contract contemplated that the landlord would take reasonable steps to keep the common parts clean and tidy. In Southwark LBC v Mills, there was no comparable term that the landlords would take steps to guard against the emission of noise from other flats or insert soundproofing. Mr Luba submits that acts done outside the premises, which affect the tenants’ use of common parts can constitute a breach of covenant for quiet enjoyment and in addition, that the omission to act, as in this case, can constitute a breach of such covenant where the omission amounts to a breach of a duty owed to the tenant (see Woodfall on Landlord and Tenant , para.11.286). But unless there was a breach of the contract, the claim that there was a breach of the covenant for quiet enjoyment added nothing. The rubbish strewn in the area outside the respondent’s flat, the smells from the bin store, the noise of late night use of the chutes and the closing of the store door were an unreasonable interference with her enjoyment of her tenancy. Nuisance Mr Underwood submits that the judge failed to rule whether the steps which the local authority took were reasonable steps not to continue or adopt the nuisance. There was no liability in nuisance whether the acts were antisocial or constituted the ordinary use of the land and communal parts. The landlord is moreover not responsible for nuisance acts of other tenants pursuant to the principles in Hussain v Lancaster CC [1999] 2 WLR l142. This remains the position after the Human Rights Act 1998: see Mowan v Wandsworth LBC, [2001] LGR 228. Mr Underwood submits that the failure by the appellants to prevent rubbish dumping did not constitute acquiescence in a nuisance and he relies on Hussain v Lancaster CC, above. Indeed, Mr Underwood submits that the appellants actively attempted to stop the behaviour of tenants. Moreover, the court should have regard to the character of the neighbourhood: Sturges v Bridgman (1879) 11 Ch D 852 at 859. The premises are on a council estate and the appellants are providing the accommodation to a large number of families pursuant to its statutory duties. Mr Luba submits that the judge was entitled to find that the appellants were liable under this head for the reasons that he gave on the facts that he found. A person is liable in nuisance when he does or omits to do something on his own land which unduly interferes with his neighbour in his comfortable and convenient enjoyment of his land. It is a question of fact what is reasonable in all the circumstances of the case. A nuisance can exist where there is interference with a “right” a person uses with their land. In this case there was interference with the respondent’s comfort and the convenient use of her land when in her flat and when entering and leaving the flat via the common parts. The appellants were in possession of the common parts and are liable for that nuisance. The appellants undertook management of the common parts (see clauses 18 and 22). The appellants can take steps to reduce nuisance caused by third parties by modest modifications to the existing facilities and the rights which the respondent has acquired under the contract include effective management of the common parts and communal facilities. Mr Luba relies on Chartered Trust v Davies [1997] 49 EG 135 and Hilton v James Smith [1979] 2 EGLR 44. Mr Luba submits that the liability in nuisance in this case is likewise analogous to that in Page Motors v Epsom and Ewell BC (1981) 80 LGR 337. The appellants acquiesced and adopted the nuisance by continuing to provide inadequate rubbish facilities on its land as the judge found. The judge rejected the contention that the neighbourhood was such that the situation in question should not be regarded as a nuisance. He was entitled to find that the interference with the respondent’s enjoyment of her dwelling was unreasonable. Mr Luba submits that the rate of damages awarded fell within the ambit of the judge’s exercise of his discretion. The respondent suffered constant physical inconvenience and mental distress. The judge would not have been wrong if he adopted levels of award for damages for discomfort and inconvenience for breach of repair in covenants, which were a useful guide in assessing the level of damages. Conclusions There is no challenge to the judge’s findings that the common parts were not kept clean and tidy. There was indeed ample material from which the judge could make this finding. In particular, rubbish was allowed to pile up outside the respondent’s front door and around the paladin in the bin chamber and the chute was not regularly cleaned. The only question was whether the appellants had taken "reasonable steps" to keep the common parts clean and tidy as required by condition 18. The appellants' defence was three-fold: first, they had appointed contractors and instructed them to carry out a detailed programme of maintenance of the refuse collection facilities; second, that they had given notice to tenants reminding them that they were only permitted to use the hoppers between 8 am and 8 pm, and third, condition 24(4) only contemplated inspections at half-yearly intervals. Mr Underwood submits that the judge failed to rule on the question whether the appellants had taken reasonable steps. In my judgment this first argument is unsound. An obligation to take reasonable steps cannot be satisfied by delegation in this way unless there is an adequate system for monitoring the performance by the contractors of their functions. The judge found that the contractors were not performing the terms of their contract for the cleaning and maintenance of the refuse collection facilities. The judge believed the evidence of the respondent in preference to that of the appellants' witnesses. Her evidence was that the appellants were not fulfilling the terms of the arbitration award, for example they were not washing and disinfecting the chamber weekly and jet-cleaning it annually as required by the award. Moreover, in so far as notice was necessary, the appellants were put on notice that the chute was not being properly cleaned and that rubbish was accumulating in the common parts at the meetings with tenants and in correspondence from the respondent. In fact, the contractor was, in fact, only a semi-autonomous arm of the appellants and so any question that the appellants had no notice that the contractors were not carrying out the maintenance of the refuse collection facilities that they had been instructed to do is academic and Mr Underwood took no point on it. The evidence called on behalf of the appellants was inconsistent with any supervision of the contractors since the appellants' witnesses believed that the contractors were duly discharging the tasks conferred on them. Mr Underwood contends that the judge made no findings as to whether the appellants failed to take reasonable steps. In my judgment it is implicit in the judge's reasoning that the judge considered that the failure adequately to supervise the contractors' performance of their duties was a failure to take reasonable steps for the purposes of condition 18(4). In all the circumstances, it seems to me that the judge was entitled to find that the appellants' failure to take steps to supervise the contractors adequately amounted to a failure to take reasonable steps for the purpose of condition 18(4). Although the point was not argued before the judge, it may, however, be that one step which it would have been reasonable for the appellants to take would be designate some new area for the disposal of rubbish. If they did this then the tenants would become obliged to take their rubbish to that place under condition 18(3). However this matter was not investigated before the judge. As to the second defence (notice to tenants), the fact that tenants were reminded about the hours when they can use the hoppers does not necessarily exhaust the appellants' duty to take reasonable steps: it all depends on the facts. As Lord Wilberforce said in Ponsford v HMS Aerosols Ltd [1979] AC 63, 73: “The word reasonable has no abstract or absolute meaning: it only has significance when related to a set of facts.” The judge observes that there would be a high proportion of the tenants who might be expected to ignore any such request. He was thus entitled to conclude that this notice was not, of itself, sufficient. Likewise I do not consider that the third defence avails the appellants, since their obligation under clause 24(4) is to inspect the common parts at "at least six monthly intervals". In the course of his argument Mr Underwood submitted that when determining whether certain steps were or would be "reasonable", the court should take account of the financial constraints on the appellants as a public authority. In my judgment, the fact that the appellants provide low cost public housing forms part of the factual background and is on that basis relevant to interpreting condition 18(4). The steps must be appropriate to this type of housing. On the other hand, there is no room for compromise on basic standards of cleanliness and condition 18(4) should not be read as subject to some implicit proviso that the appellants should have the resources to fund the steps otherwise considered to be reasonable. Indeed as the judge pointed out if the appellants found that the performance of the obligations imposed on the appellants under the tenancy agreements caused an increase in costs, they could take that factor into account on a review of the rent. On the other hand, the cost-effectiveness of a particular step is a factor which the court should take into account in determining whether the failure to take a particular step was a failure to take a reasonable step for the purpose of condition 18(4). For example, a failure to empty the paladin bin twice daily would not be a failure to take a reasonable step if the evidence shows that this is only rarely necessary and that it would be prohibitively expensive if done twice daily. In this type of case the trial judge should clearly set out his or her reasons for finding that given steps were, or were not, reasonable. The conclusion that particular steps were or were not reasonable is not a conclusion which is reviewable on appeal only if it is perverse and outside the range of conclusions which a reasonable tribunal could draw. It is a mixed question of fact and law whether given steps were, or were not, reasonable. On appeal, an appellate court is unlikely to disturb the primary findings of fact. However, it would be able to consider whether the trial judge had taken account of the appropriate considerations and formed a correct view in law as to what steps it would have been reasonable to take in the circumstances as found by him. I now turn to the appellants' obligation under condition 22 to keep the refuse collection facilities "in repair and proper working order". It is common ground that the facilities in question are the system comprising the chute, hoppers and paladin bin to which I have referred, and for my own part I do not consider that it could be construed as referring more generally to a system for the purpose of refuse collection or to the system rather than the physical facilities. Thus , for example the failure of the contractors to empty the bins could not in my view be described as a breach of condition 22. It seems clear that the chute was not kept in repair as the judge made a specific order that certain repairs be carried out but no point is taken on that breach of the repairing obligations in this court. The issue is whether the judge was entitled in law to conclude that the only way the appellants could comply with their obligations under the tenancy agreement was either to move the chute or to offer the respondent another flat. Mr Luba seeks to support the judge's judgment. He submits that the facilities for refuse collection were not kept in proper working order as required by condition 22 because they became inadequate over a period of time to deal with the amount of rubbish which had to be removed. In addition Mr Luba submits that conditions 18(4) and 22 are wide enough in appropriate circumstances to require the appellants to take reasonable steps to relocate the refuse collection area elsewhere. Accordingly, the chute system could be replaced by a system whereby tenants had to take their rubbish to a place far from the respondent’s flat. In my judgment it is outside condition 18(4) and condition 22 to impose an obligation on the appellants to install new facilities for this purpose or to modify the existing facilities. Under condition 22 their only obligation is to keep the facilities which they actually provide in proper repair and working order. That condition does not impose an obligation to provide a system which is adequate in circumstances as they exist from to time, and it has to be borne in mind that the judge did not find that the system was inadequate at the start of the tenancy. Both conditions are drafted on the basis that they apply to the common parts as existing. I do not think that they can properly be construed as involving an obligation to alter the common parts so as to improve the refuse collection facilities. The obligation to keep the refuse collection facilities in proper working order is not breached if the facilities are working correctly and there is nothing to suggest that there is any mechanical defect in the facilities. Part of the respondent's complaint related to the noise caused by the banging of the doors of the hoppers . However there is no contractual obligation under condition 18 or 22 to prevent noise. Accordingly, what the respondent has to do is to show that the defects in the refuse collection facilities amounted to a failure to maintain the faciltites in proper working order. Here again it is relevant to note that there is no finding that the facilties were not adequate at the start of the tenancy. Nor is there any finding that the parties could have foreseen the events which have since occurred or that the system in operation at Townsend House could be modified for a minor expenditure. Nor does not the evidence show that the chute is not capable of working. So far as the working of the facilities is concerned the complaint is really that the chute can be blocked by bags of rubbish which are too large and those bags do not move easily within the chute but bags which block the chute can be removed and the restriction on the size of bags which can be used does not seem to me to affect the working of the facilities, so much as constitute a design defect in the events which have happened. It is not the case that the chute is effectively incapable of taking any rubbish at all or that the refuse collection facilities were "such a congeries of defects as to destroy the workable character of the" facilities ( see per Lord Dunedin in Pollock v Macrae 1922 SC (HL) 192 at 200). In all the circumstances, this is not a case where facilities which previously worked have ceased to work and where, therefore, there arises the question left open in O’Connor v Old Etonian Housing Association (to which I have referred above). I now turn to the covenant for quiet enjoyment. Little turns on this in the light of my conclusion as to breach of condition 18(4). However, I must deal with this alternative claim in the light of the judge's conclusions. In my judgment, the judge was wrong to reach the conclusion that Southwark LBC v Mills was distinguishable. In that case, the facts were that the landlord converted a house into three dwellings which it then let. The house was not soundproofed and a tenant complained that the noise from other tenants seriously interfered with her enjoyment of her flat. She brought a claim for damages for breach of the covenant of quiet enjoyment. It was held that she was not entitled to any relief. The covenant for quiet enjoyment was only a covenant that the landlord would not substantially interfere with the tenant’s possession of the land. Noise could amount to substantial interference but the covenant was prospective only. Therefore, there was no breach of the covenant in the present case since the interference was due to the condition of the property when let and the parties must have contemplated that there would be other tenants. The main judgments were given by Lord Hoffmann and Lord Millett, with both of whom the remaining members of the House agreed. Lord Hoffmann explained the position thus at page 11: "[The covenant for quiet enjoyment] is prospective in its nature: see Norton on Deeds (2nd edn, 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 QBD 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) LR 9 Exch 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 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 is 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." As Mr Underwood submits, the covenant for quiet enjoyment is not a warranty as to fitness of the premises. As Lord Hoffmann said in the Mills case at page 12: “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. Accordingly, the design defects in the refuse collection facilities at Townsend House do not entail any breach of the covenant for quiet enjoyment. Nor could there be any warranty as to the adequacy of those facilities implicit in the covenant for quiet enjoyment. The Mills case shows that noise received within demised premises and springing from use of the premises by the landlord or (where he has adequate knowledge) by other persons for a purpose not contemplated by the parties at the start of the tenancy agreement can constitute a breach of the covenant for quiet enjoyment. The judge made no finding to the effect that the noise caused by the use of the hoppers was not contemplated in l983 and accordingly the noise created by tenants’ use of the hoppers could not constitute a breach of the covenant for quiet enjoyment. The other matter relied on is the rubbish which was left obstructing the respondent’s doorway including old fireplaces and televisions. She complained about this “on countless occasions” (first witness statement, paragraph 7). However, the appellants did not leave this rubbish there and there is no evidence that the respondent communicated this particular aspect of her complaints to the appellants. Accordingly, in my judgment, the judge’s conclusion on this issue cannot stand. There are no other matters of which the respondent complains which interfere with the physical use of her flat. I now, therefore, turn to nuisance. The judge made no finding on nuisance and there is no respondent’s notice. Accordingly, I can deal with this aspect of the case shortly. Nuisance (in this case, private nuisance) consists of the wrongful interference with another’s use of land, or of some right over or in connection with it. Once it is shown that a nuisance has emanated from the appellants’ property and that the appellants were put on notice that there was such a nuisance, the onus of proof switches to them to show that they cannot by reasonable steps abate the nuisance (see Marcic v Thames Water Utilities Ltd [2002] EWCA Civ.65). If that onus is not discharged, the appropriate order is an order that the party committing the nuisance should abate the nuisance. It is not for the court to set out a detailed schedule of works for the tortfeasor to complete. On this basis, the question whether the steps taken were reasonable steps will be decided as part of the issue of deciding whether the order has been complied with. In the law of nuisance, it is well established that the cost to the alleged wrongdoer of taking any steps should be taken into account in determining what is reasonable: see Leakey v National Trust [1980] 1 QB 485. The leading judgment was given by Megaw LJ (with whom Shaw and Cumming-Bruce LJJ agreed). He said at page 526: “The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.” The judge must have concluded that the appellants had failed to show that they had taken reasonable steps to abate the nuisance, and in my judgment there was material on which he could reach that conclusion (see paragraphs 50 to 52 and 54 of this judgment). In the circumstances, if the judge had been minded to grant any remedy, the appropriate order for the judge to have made would have been an order against the appellants to prevent the further commission of a nuisance. In the absence of a respondents’ notice, and given my conclusion as to the breaches of the tenancy agreement, I do not consider that this Court should seek to grant any relief in respect of the respondents’ claim in nuisance. As to damages, Mr Underwood did not seek to substantiate the submission in the appellants’ skeleton argument that the judge's award of damages should be set aside. I have concluded above that, while there was an error in law in the judge's conclusions as to breach of clause 22 of the tenancy agreement, nonetheless this Court cannot interfere with his holding that the respondent were in breach of clause 18(4) of the tenancy agreement. In all the circumstances, I consider that the judge's award of damages should stand. In the circumstances, I would dismiss the appeal, save that (subject to any further submissions Counsel may make) I would vary the order granting general liberty to apply so that the judge’s order provides that the liberty to apply is without limit of time but for the purpose only of the respondent applying for an order restraining the appellants from further commission of a breach of condition 18(4) of her tenancy agreement or for an order on her claim in nuisance, on which the Court has yet finally to rule. Lord Justice Chadwick: I agree. Lord Justice Ward: I also agree. Order: appeal dismissed; order made in terms of agreed draft minute submitted by counsel. (order not part of approved judgment) © 2002 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII