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Title : Baxter v Camden LBC (No.2)

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*1  Baxter v Camden London Borough Council (No 2)

Court of Appeal

5 November 1998

[2001] Q.B. 1

Stuart-Smith, Otton and Tuckey LJJ

1998 Oct 21, 22; Nov 5

Nuisance—Noise—Adjoining council flats—Tenant occupying flat with poor sound insulation—

Tenant's enjoyment of flat affected by neighbours' ordinary use of adjoining flats—Tenant suing
council landlord for noise nuisance—Whether ordinary user capable of constituting noise nuisance
—Whether tenants deemed to take premises as they were

In 1975 the defendant council converted a three-storey Victorian terraced house into three
one-bedroom flats, one on each floor. The conversion complied with the then current building
regulations for London which at that time did not require the provision of sound insulation
between the flats. The only noise barriers between the flats were plasterboard ceilings and
wooden floors which were in poor condition. Tenants of the ground and second floor flats were
already in occupation when the council subsequently let the first floor flat to the plaintiff and
her daughter. The plaintiff's tenancy agreement required the council to prevent the
continuation of any nuisance and, although the agreement obliged the council to keep the
structure and exterior in repair, it did not require them to carry out internal repairs or
improvements. The plaintiff complained about noise from the adjoining flats, but the council
refused to improve the sound insulation. The plaintiff brought an action against the council in
the county court alleging that the noise generated by the day-to-day living of her neighbours,
which entered her flat because of the poor sound-proofing, constituted an actionable nuisance.
The judge dismissed the claim. On appeal by the plaintiff the case was remitted to another
judge for rehearing. The second judge held that the noise arose from the ordinary use of the
flats by the neighbours, that it constituted an undue interference with the plaintiff's use and
enjoyment of her flat, but that the council were not liable because a tenant who took premises
in a defective state was not entitled to complain about their condition.

On appeal by the plaintiff—

dismissing the appeal, that the ordinary use of residential premises could not constitute a
nuisance unless the use was unusual or unreasonable having regard to the purpose for which
the premises were constructed; that since the 1975 conversion did not change the purpose for
which the house was used and there was nothing unusual or unreasonable about it, nothing
was done at that time to make ordinary use of the converted house a nuisance; and that,
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accordingly, the council were not liable in nuisance to the plaintiff; that, further, even if
nuisance had been established, since the parties were landlord and tenant the plaintiff was
deemed, in the absence of any contractual or statutory provision to the contrary, to take the
premises as they were, and the principle that it was no defence that a plaintiff came to a
nuisance had no application (post, pp 12C, 15A-B, 16C-E, 17E-F, 19C-E).

Cavalier v Pope [1906] AC 428, HL(E) and Cheater v Cater [1918] 1 KB 247, CA applied .

Sturges v Bridgman (1879) 11 ChD 852, CA considered .

Sampson v Hodson-Pressinger [1981] 3 All ER 710, CA and Baxter v Camden London Borough
Council (No 1) (1997) 30 HLR 501, CA not followed .

The following cases are referred to in the judgments:

*2
Ball v Ray (1873) LR 8 ChApp 467
Baxter v Camden London Borough Council (No 1) (1997) 30 HLR 501 , CA
Cavalier v Pope [1906] AC 428 , HL(E)
Cheater v Cater [1918] 1 KB 247 , CA *2
Erskine v Adeane (1873) LR 8 ChApp 756
Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 , PC
McNerny v Lambeth London Borough Council (1988) 21 HLR 188 , CA
Rimmer v Liverpool City Council [1985] QB 1; [1984] 2 WLR 426; [1984] 1 All ER 930 , CA
Robbins v Jones (1863) 15 CBNS 221
Sampson v Hodson-Pressinger [1981] 3 All ER 710 , CA
Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577; [1938] 2 All ER 1 , CA
Smith v Scott [1973] Ch 314; [1972] 3 WLR 783; [1972] 3 All ER 645
Southwark London Borough Council v Mills [2001] Ch 1; [1999] 2 WLR 409 , CA
Sturges v Bridgman (1879) 11 ChD 852 , CA

The following additional cases were cited in argument:

Bamford v Turnley (1862) 3 B &; S 62

Broder v Saillard (1876) 2 ChD 692 , CA
Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264; [1994] 2 WLR 53;
[1994] 1 All ER 53 , HL(E)
Christie v Davey [1893] 1 Ch 316
Dunton v Dover County Council (1977) 76 LGR 87
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 WLR 761; [1994] 3 All ER
506 , HL(E)
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468
Malone v Laskey [1907] 2 KB 141 , CA
Hunter v Canary Wharf Ltd [1997] AC 655; [1997] 2 WLR 684; [1997] 2 All ER 426 , HL(E)
Miller v Jackson [1977] QB 966; [1977] 3 WLR 20; [1977] 3 All ER 338 , CA
Quick v Taff Ely Borough Council [1986] QB 809; [1985] 3 WLR 981; [1985] 3 All ER 321 ,
CA
Reinhardt v Mentasti (1889) 42 ChD 685
Rylands v Fletcher (1868) LR 3 HL 330 , HL(E)
St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642 , HL(E)
Sanders-Clark v Grosvenor Mansions Co Ltd [1900] 2 Ch 373
Sanderson v Berwick-upon-Tweed Corpn (1884) 13 QBD 547 , CA
Sedleigh-Denfield v O'Callaghan [1940] AC 880; [1940] 3 All ER 349 , HL(E)
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Toff v McDowell (1993) 25 HLR 650; 69 P &; CR 535

Vanderpant v Mayfair Hotel Co Ltd [1930] 1 Ch 138

APPEAL from Judge Green QC, sitting in the Central London County Court

By particulars of claim dated 28 July 1995 the plaintiff, Yvonne Baxter, claimed against the
defendants, Camden London Borough Council, damages, including aggravated and exemplary
damages, for breach of her covenant of quiet enjoyment and nuisance; she also sought an order
for the abatement of the nuisance. By her claim she alleged, inter alia, that since on or about 6
July 1992 she was the council's tenant under a weekly tenancy of a one-bedroom flat located on
the first floor of a three-storey end of terrace Victorian house; that implied into the tenancy were
terms that the council would give her quiet enjoyment of the premises, would not derogate from
their grant and would keep the common parts in a state of reasonable repair and efficiency; that
there was inadequate sound insulation between her dwelling and the flats both above and below;
and that, as a consequence, the occupants of the two flats, living in a normal and moderate way,
seriously interfered with her enjoyment of her dwelling. The particulars alleged, inter alia, that the
plaintiff could distinctly hear all of the normal domestic *3  activities of the occupants of the flats
above and below; that the council were in breach of the terms of the tenancy; and that they had
failed to take any or any reasonable care to abate the noise nuisance, by reason of which the
plaintiff and her daughter, who occupied the flat with her, had suffered loss and damage,
inconvenience and ill health.

The council served a defence on 5 September 1995 putting the plaintiff to strict proof of the
matters alleged, denying liability and counterclaiming arrears of rent payable by the plaintiff under
the tenancy.

On 9 February 1996 His Honour Derek Hill-Smith, sitting as a deputy circuit judge at the
Shoreditch County Court, dismissed the plaintiff's claim for breach of covenant and nuisance. The
plaintiff appealed and on 20 June 1997 the Court of Appeal (Butler-Sloss LJ and Sumner J) allowed
her appeal and remitted the case to another judge for hearing.

By amended particulars of claim served on 2 September 1997 the plaintiff further alleged that the
council had caused the nuisance by converting the house in which her flat was located into three
flats with the intention of letting the flats; that the inadequate sound insulation and resulting noise
nuisance existed before the grant of the plaintiff's tenancy by the council and that the council
knew or reasonably ought to have known of the same having themselves carried out the works of
conversion in 1975; that the council authorised, alternatively adopted, the nuisance by letting the
flats above and below the plaintiff's flat; and that her neighbours could not use their premises in a
normal way without interfering with the plaintiff's reasonable enjoyment of her premises.

By an amended defence served on 16 September 1997 the council denied that the particulars
alleged were a nuisance. They admitted that they had converted the house into three flats, but
denied that the conversion constituted a nuisance. They further denied that the sound insulation in
the dwelling was inadequate; that they had or reasonably ought to have had knowledge of the
existence of a nuisance prior to the grant of the tenancy to the plaintiff; or that they had
authorised or adopted any nuisance by the letting of the flat to the plaintiff.

On 10 November 1997 Judge Green QC, sitting in the Central London County Court, found that the
noise suffered by the plaintiff was an undue interference with her reasonable enjoyment of the flat,
but he dismissed her claims for breach of covenant and nuisance on the grounds that the plaintiff
came to the nuisance and that the principle caveat emptor in the landlord and tenant field applied.
He refused leave to appeal.

By a notice dated 27 January 1998 and pursuant to leave granted by Roch LJ on 16 January 1998
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the plaintiff appealed on the grounds, inter alia, that (1) having found that the noise generated by
the ordinary use of neighbouring flats caused an undue interference with the plaintiff's reasonable
enjoyment of her flat, the judge erred in law in holding that the council were not liable for the
nuisance; (2) the council's liability for the nuisance arose in that (a) they carried out the works of
conversion creating flats 1A, 1B, and 1C (b) flats 1A and 1C were not fit to be used in a normal
way without interfering with the plaintiff's reasonable enjoyment of her premises and that the
council knew or reasonably ought to have known of that having itself carried out the works of
conversion and (c) the council authorised, alternatively adopted, the nuisance by letting and
continuing to let the flats above and below the plaintiff's flat, even after express complaints by the
plaintiff; (3) the judge erred in not applying the principle that it was *4  not a defence that the
plaintiff came to the nuisance; (4) the judge erred in failing to hold that under clause B5 of the
tenancy, which provided that 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," the council were under an obligation to prevent the continuation of any nuisance;
(5) the judge erred in not finding that the council were in breach of the covenant of quiet
enjoyment.

By a respondent's notice dated 20 February 1998 the council gave notice of their intention to
contend that the judge was wrong to conclude that the evidence of sound penetration amounted to
a nuisance in law.

The plaintiff did not pursue her appeal on the question whether the council were in breach of the
covenant of quiet enjoyment, having regard to the decision of the Court of Appeal in Southwark
London Borough Council v Mills [1999] 2 WLR 409 , but she reserved the right to argue the point
on any further appeal.

The facts are stated in the judgment of Tuckey LJ.

James Goudie QC and Zia Nabi for the plaintiff. 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 or presumed
to know what the natural and necessary result will be and 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 a normal way without interfering with the reasonable enjoyment of adjoining occupiers.
The date of actual or presumed knowledge is the date of the letting to the plaintiff: see Baxter v
Camden London Borough Council (No 1) (1997) 30 HLR 501 and Sampson v Hodson-Pressinger
[1981] 3 All ER 710 , 713. Accordingly, the judge's decision was wrong.

The council knew, when the tenancy was granted to the plaintiff, that the conversion they had
carried out did not meet modern sound insulation standards and that there was likely to be a
nuisance resulting from the state of the premises and the ordinary user of the flats which would
inevitably interfere with the plaintiff's quiet enjoyment of the property. They were accordingly
liable in nuisance to the plaintiff. It is no defence to an action for nuisance that the plaintiff came
to the nuisance: see Sturges v Bridgman (1879) 11 ChD 852 and Miller v Jackson [1977] QB 966 .

The judge should have given effect to the council's obligations under the tenancy agreement. It
may be that, notwithstanding the decision of the Court of Appeal in Southwark London Borough
Council v Mills[2001] Ch 1 , the council were in breach of the covenant for quiet enjoyment, which
extends to any substantial interference with enjoyment: see Sanderson v Berwick-upon-Tweed
Corpn (1884) 13 QBD 547 . However, the fact that the plaintiff may be unable to sue in contract
under the covenant for quiet enjoyment does not mean that she cannot sue in the alternative in
respect of the same facts in nuisance.

Andrew Arden QC and Christopher Baker for the council. The plaintiff cannot sue the council in
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contract for breach of the covenant of quiet enjoyment: see Southwark London Borough Council v
Mills [2001] Ch 1 . Neither can she sue the council in nuisance in respect of the same facts. The
interference is not undue in that it is within the contemplation of the contract and is therefore to
be tolerated: see Southwark London BoroughCouncil v Mills , *5  at pp 18e-f, 22g-h; Lyttelton
Times Co Ltd v Warners Ltd [1907] AC 476 , 481 and Vanderpant v Mayfair Hotel Co Ltd [1930] 1
Ch 138 , 162 . Moreover, liability in tort for the consequences of the ordinary use by other
occupiers of the house is inconsistent with the contract of tenancy and the parties must therefore
be taken to have excluded liability in tort for such use. The tenancy contract is subject to the
requirement to repair in section 11 of the Landlord and Tenant Act 1985 , but this does not include
works to reduce external noise: see Quick v Taff Ely Borough Council [1986] QB 809 .

Only undue interference amounts to a nuisance. What is undue is to be determined having regard
to the level of interference reasonably to be tolerated, by reference, inter alia, to the locality,
characteristics and age of the property and the purposes for which the land or buildings are
reasonably contemplated to be used: see Bamford v Turnley (1862) 3 B & S 62 , 83; St Helen's
Smelting Co v Tipping (1865) 11 HL Cas 642 , 650 ; Rylands v Fletcher (1868) LR 3 HL 330 ;
Sturges v Bridgman 11 ChD 852 , 865; Vanderpant v Mayfair Hotel Co Ltd [1930] 1 Ch 138 , 166
and Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 , 299d-300f . The rights
of the person in occupation have to be balanced against the common law right of the neighbouring
owner to use his land or buildings as he wishes: see Ball v Ray (1873) LR 8 Ch App 467 ;
Sedleigh-Denfield v O'Callaghan [1940] AC 880 , 887-888, 903; and compare Sanders-Clark v
Grosvenor Mansions Co Ltd [1900] 2 Ch 373 , 375, 376. The consequences of the common law
have been ameliorated by, for example, planning, slum clearance, construction, public health and
environmental protection legislation: see Hunter v Canary Wharf Ltd [1997] AC 655 , 710b-e.

Ordinary user of property for the purposes for which it has been converted, adapted or
constructed, is not a nuisance: see Cambridge Water Co v Eastern Counties Leather Plc [1994] 2
AC 264 ; Hunter v Canary Wharf Ltd [1997] AC 655 , 711g-h and Miller v Jackson [1977] QB 966 ,
980d, 982, 984. In Ball v RayLR 8 Ch App 467 , 469-470, 471 ; Broder v Saillard (1876) 2 ChD
692 , 699,701; Reinhardt v Mentasti (1889) 42 ChD 685 , 696, 687 ; Sampson v Hodson-
Pressinger [1981] 3 All ER 710 , 713 and Toff v McDowell (1993) 69 P & CR 535 . Although the use
was described as lawful and/or reasonable there was something unusual about the user, or
something which had been done to the property, which deviated from the norm and rendered
tortious what would otherwise not have been a nuisance. In Christie v Davey [1893] 1 Ch 316 ,
326-328 , the interference was rendered tortious through malice. [Reference was also made to
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 ; Smith v Scott[1973] Ch 314 and
Dunton v Dover County Council (1977) 76 LGR 87 .]

In cases of physical damage the legal duty may be different: see Miller v Jackson , at p 986b and
Sedleigh-Denfield v O'Callaghan [1940] AC 880 , 887-888 . Use not in accordance with the
purposes for which the property was designed is not a "reasonable" use: see Sanders-Clark v
Grosvenor Mansions Co Ltd [1900] 2 Ch 373 , 375, 376. Forseeability is a prerequisite of liability
for damages in nuisance: see Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264
, 300b-301e.

There is no implied covenant by the lessor of an unfurnished house or flat, or of land, that it is or
shall be reasonably fit for habitation, occupation or cultivation, or for any other purpose for which
it is let: see Woodfall's Law of Landlord and Tenant , looseleaf ed, para 13.001, 13.002. It is for
*6  Parliament and not the courts to extend the duties imposed on council landlords: see McNerny
v Lambeth London Borough Council (1988) 21 HLR 188 . The absence of any general duty upon a
landlord in tort is marked by Cavalier v Pope [1906] AC 428 , 432, referring to Robbins v Jones
(1863) 15 CBNS 221 . Cavalier v Pope was itself applied in McNerny v Lambeth London Borough
Council .
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Although a landlord who is also a builder can be liable in negligence in respect of defective design
and construction of premises (see Rimmer v Liverpool City Council [1985] QB 1 , 14 ) there is no
evidence or finding of negligence in the present case with regard to the conversion works. There is
thus no breach of the council's duty as builder and, as in Cavalier v Pope , the council's position is
that of a bare landlord. [Reference was made to the Law Commission Report, Landlord and
Tenant: Responsibility for State and Condition of Property (1996) (Law Com No 238), paras 4.44
and 8.54.]

Goudie QC in reply. The claim in nuisance is not excluded. There is no conflict between Baxter v
Camden London Borough Council (No 1) 30 HLR 501 and Henderson v Merrett Syndicates Ltd
[1995] 2 AC 145 . The latter did not concern a claim in nuisance. Nor did Southwark London
Borough Council v Mills [2001] Ch 1 overrule Baxter (No 1) on this issue. There was no exclusion
of liability clause in the tenancy agreement. Any such clause would be subject to the Unfair
Contracts Terms Act 1977 . Cavalier v Pope [1906] AC 428 and Malone v Laskey [1907] 2 KB 141
were concerned with negligence, proximity and locus standi, not nuisance. [Reference was made
to Woodfall's Law of Landlord and Tenant , looseleaf ed, para 15.016.]

Sampson v Hodson-Pressinger [1981] 3 All ER 710 was not decided per incuriam. The Cavalier v
Pope [1906] AC 428 line of authorities did not concern the tort of nuisance, or liability in respect of
noise, but rather (i) whether a contractual liability was imposed at common law as to repairs or
condition of premises; and (ii) whether there was a duty of care in negligence.

After the hearing the court received further written submissions.

Arden QC . A number of authorities demonstrate the principle of caveat lessee: see Erskine v
Adeane (1873) LR 8 Ch App 756 , 761 ; Cavalier v Pope [1906] AC 428 ; Cheater v Cater [1918] 1
KB 247 , 255; and Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 579-580 , 592-593, 602.
On the basis of these cases Baxter v Camden London Borough Council (No 1) 30 HLR 501 and
Sampson v Hodson-Pressinger [1981] 3 All ER 710 would be per incuriam on the interpretation of
them which is advanced by the appellant. Where there has been no change in condition during the
demise, the claim must fail.

Goudie QC . The caveat lessee principle should not be extended by analogy to nuisance. Cheater v
Cater [1918] 1 KB 247 and Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 were not
concerned with noise or other interference with the enjoyment of land, but with nuisance involving
encroachments on neighbouring land: see Clerk & Lindsell on Torts , 17th ed (1995), paras 18-05
—18-06. Moreover, both cases were in negligence rather than nuisance. Alternatively, if Cheater v
Cater and Shirvell v Hackwood Estates Co Ltd are to be regarded as applications of the doctrine in
Cavalier v Pope [1906] AC 428 , the doctrine is confined to cases where the landlord is a bare
landlord and not where it is the landlord who has carried out the building works: see Rimmer v
Liverpool City Council [1985] QB 1 *7  . Moreover, Cheater v Cater was decided per incuriam as
Sturges v Bridgman11 ChD 852 was not cited. Accordingly, the relevant principles are those stated
by the Court of Appeal in Sampson's case and Baxter (No 1) 30 HLR 501 .

Cur. adv. vult.

5 November. The following judgments were handed down. TUCKEY LJ

Introduction

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 Southwark London Borough Council v Mills [2001] Ch 1 this
27/03/2020 Delivery | Westlaw India Page  8

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 in the Central
London County Court, who on 10 November 1997 dismissed the plaintiff's claim.

The facts

1, Marsden Street, London, NW5 is a Victorian end of terrace house. In 1975 the 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 plasterboard. 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 plasterboard ceilings and the wooden floors which were
in poor condition. The house has remained in this condition ever since.

On 6 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.

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." 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.

The proceedings

These proceedings were started in 1995. At the hearing before Judge Green QC 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: *8 

"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."

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 into force in 1992. It was his opini on
that the ordinary use of the flat above created excessive noise below. The judge described this
expert as impressive and accepted his evidence.

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
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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 & Lindsell on Torts, 17th ed (1995), which he cited.

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." He saw the problem as one in which two principles came into conflict: first,
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.

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. His Honour
Derek Hill-Smith dismissed the plaintiff's claim. His reasons for doing so are not clear but the
plaintiff appealed and the case was remitted, 30 HLR 501 by this court for rehearing 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." 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, Sumner J said, at p 504:

"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."

*9  He then said that the court had been referred to a number of authorities including Sampson v
Hodson-Pressinger [1981] 3 All ER 710 and continued, 30 HLR 501 , 504-505:

"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 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 on
the rehearing, (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 flats 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 degree on all the
circumstances of the case. (2) If the answer to the first question is yes, has the
27/03/2020 Delivery | Westlaw India Page  10

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?"

This appeal

Mr Goudie on behalf of the plaintiff 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. 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 Southwark London Borough
Council v Mills [2001] Ch 1 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.

The council issued a respondent's notice in respect of the judge's finding of undue interference.
Ignoring its diversions and despite its length, the essence of the argument of Mr Arden for the
council was that it was not open to the judge as a matter of law to make such a finding. This
submission was based on the proposition that there is no case in which the ordinary use of
premises for the purpose for which they had been constructed has been held to amount to a
nuisance. Where liability has been found there has always been something more than just ordinary
use—for example the premises have *10  been adapted so that they are no longer being used for
the purpose for which they were constructed or they are being used in some other way which was
unreasonable. Mr Arden submits that if the judge's finding stands and this court holds that the
council are liable in nuisance, this will be an extension of the common law which will have far
reaching consequences for all landlords and owner-occupiers since many older properties have
poor sound insulation. Such an extension of the law should only be made by statute.

In his written argument and earlier submissions Mr Arden did not seek to support the judge's
reasons for saying that the council were not liable. However, as his argument developed he
concluded by submitting that a liability in tort for the consequences of the ordinary use by other
occupiers of the house was so inconsistent with the contract of tenancy that the parties must be
taken to have agreed that liability in tort for such use was excluded.

At the end of the hearing the parties were asked to make written submissions on various points
raised by the court. In a note sent after his written submissions Mr Arden submitted for the first
time that a landlord had no liability to his tenant in nuisance for the state of the premises at the
time they were let, the principle of caveat lessee. Accordingly the council were not liable to the
plaintiff even if what she complained of amounted to a nuisance.

Were the facts found by the judge capable of being a nuisance?

The tort of nuisance still has a valuable role to play although many of the activities with which the
old cases were concerned are now regulated by planning, housing, building and public health
legislation. The essence of the tort is undue interference with the use or enjoyment of land. The
court must maintain a balance between the right of the defendant to do what he likes with his own
27/03/2020 Delivery | Westlaw India Page  11

land and the right of the plaintiff not to be interfered with. In striking this balance in the case of
noise nuisance, and other nuisances of this type, the court will obviously have to consider the
locality, age and physical characteristics of the premises in question. Occupiers of low cost, high
density housing must be expected to tolerate higher levels of noise from their neighbours than
others in more substantial and spacious premises. These principles however are not in question in
the present case. The issue is in what, if any, circumstances may a defendant be liable in nuisance
for the ordinary use of land.

Mr Arden referred us to a number of cases in which the courts have had to consider this problem.
In Ball v Ray (1873) LR 8 Ch App 467 the defendant had converted the ground floor of his house
into a stable. His neighbour complained of noise made by the horses. In allowing the plaintiff's
appeal Lord Selborne LC said, at pp 469-470:

"If the houses adjoining each other are so built that from the commencement of their
existence it is manifest that each adjoining inhabitant was intended to enjoy his own
property for the ordinary purposes for which it and all the different parts of it were
constructed, then so long as the house is so used there is nothing that can be
regarded in law as a nuisance which the other party has a right to prevent. But, on
the other hand, if either party turns his house, or any portion of it, to unusual
purposes in such a manner as to produce a substantial injury to his neighbour, it
appears to me that that is not according to principle or authority a reasonable use of
his own property ..."

*11  Mellish LJ agreeing said, at p 471:

"we are not to consider the noise of horses from that stable like the noise of a
pianoforte from a neighbour's house, or the noise of a neighbour's children in their
nursery, which are noises we must reasonably expect, and must to a considerable
extent put up with."

This case has been followed in a number of the cases cited by Mr Arden and is of course a
statement which is binding on us. It was not however cited to the Court of Appeal in Sampson v
Hodson-Pressinger [1981] 3 All ER 710 , to which I now turn.

In that case a flat roof was converted into a terrace and let as part of the top flat. The terrace was
constructed and tiled in such a way that normal use created noise in the plaintiff's flat below it.
The plaintiff sued the tenant of the flat above who was held not liable. He also sued their landlord
who had bought the house after the terrace had been built. He was found liable and appealed. In
his reserved judgment, with which the other two judges agreed, Eveleigh LJ said, at pp 713-714:

"It was also contended that the [landlord] could not be guilty of a nuisance, because
the [tenant of the top flat] was using residential property in a normal way. The flaw
in this argument, in my opinion, is that the property itself was not fit to be used in a
normal way in so far as the terrace was concerned. It could not be so used without
interfering with the reasonable enjoyment by the plaintiff of his flat. The use of the
terrace put a strain on the plaintiff that normal use in a normal building would not
have done. The first landlord is not a party to these proceedings. However, it is
helpful to consider what his position would have been had he continued to be the
landlord. He clearly would have been liable in nuisance to the plaintiff. He let the
premises to be used for residential purposes and those purposes, in my opinion,
included the use of the terrace in the way in which [the tenant] used it. It must have
27/03/2020 Delivery | Westlaw India Page  12

been contemplated by the landlord that the tenant of flat 7 would walk on the terrace
wearing ordinary footwear and that she would invite others to do so and to converse
while there. He had himself been responsible for the condition of the premises, which
were not in fact suitable for use in the manner contemplated without causing a
nuisance. It seems to me that the position of the first landlord falls within the
principle in Harris v James (1876) 45 LJQB 545 ... He had let the premises to a
tenant for the purpose of doing an act likely to cause a nuisance. In that case the
premises were let for burning lime. Any hesitation that might be felt in applying the
principle to the present case lies in the fact that burning lime very plainly carries with
it the risk of causing a nuisance and using a flat for residential purposes does not, at
least not to the same extent. Nevertheless, the possibility of nuisance caused by
treading on the floor is readily appreciated and indeed the lease in the present case
contained a provision requiring the tenant to carpet the floor boards. By way of
contrast, however, it was clearly envisaged that the tiles would not be covered."

Mr Goudie submits that this case, which is binding on us, is not only an answer to Mr Arden's
submission that ordinary use is not capable of being a nuisance, but is determinative of the
council's responsibility for the nuisance in this case.

*12

I shall consider the question of responsibility later, but I do not think Sampson's [1981] 3 All ER
710 case is authority for the proposition that in a case such as this ordinary use without more is
capable of being a nuisance. It was the construction of the terrace which had made the property
not fit to be used in a normal way: "normal use in a normal building would not have had" this
effect. There was therefore something unusual about the way in which the premises were being
used. Sampson's case can therefore be distinguished from the present case on its facts.

Mr Goudie also submitted on this point that the decision of the Court of Appeal in the present case,
Baxter v Camden London Borough Council (No 1) (1997) 30 HLR 501 , is binding on us. I do not
agree. The court's statement of the law on this point is in a single sentence. This statement was
made without consideration of all the authorities to which we have been referred and in particular
Ball v RayLR 8 Ch App 467 . Sumner J described his propositions of law and the questions arising
from them as being for decision at the remitted hearing after further argument.

I think the authorities do show that ordinary use of residential premises without more is not
capable of amounting to a nuisance. Ordinary use may only give rise to a nuisance if it is unusual
or unreasonable having regard to the purpose for which the premises were constructed.

This statement of the law explains why for example owner-occupiers would not be liable one to
the other if the party wall between their houses is not an adequate sound barrier so that ordinary
noise from one house unreasonably interferes with use and enjoyment of the other. It would also
explain, I think, why the tenants in the flats above and below the plaintiff are not liable to her. If
their ordinary use of their flats without more is capable of amounting to a nuisance, there is no
entirely satisfactory legal basis for saying that they should not be liable to the plaintiff since they
are creating the noise which is causing the nuisance. In Sampson's [1981] 3 All ER 710 case the
judge held that the tenant was not liable because "she had nothing to do with the construction of
the terrace". This conclusion was not considered by the Court of Appeal, but it suggests that in this
kind of case it may be possible to say that the nuisance was caused by the state of the premises
rather than the noise, although I think this is by no means certain.

The judge in the present case did not approach his findings of undue interference with these
considerations of law in mind. In reaching his conclusion he obviously set out to answer the first of
27/03/2020 Delivery | Westlaw India Page  13

the three questions posed by this court. In other words he simply considered as a matter of fact
and degree whether the noise transmitted from the adjoining flats unreasonably interfered with
the use and enjoyment of the plaintiff's flat, taking into account the principle of give and take. On
this approach, on the evidence which he accepted, I do not think the judge could have reached
any conclusion other than the one he did.

What conclusion should the judge have reached? The answer to this question in this case must
depend upon how one should regard the conversion in 1975. But for the conversion I do not think
there would be any liability for noise created by the ordinary use of a house in multiple occupation.
I think it is safe to assume that the conversion in 1975 reduced the sound insulation between the
floors but by how much one cannot tell. What is clear however is that it did not change the
purpose for which the house was used. There was nothing unusual or unreasonable about the
conversion which was done in accordance with the building standards of *13  the time. In these
circumstances I conclude that nothing was done at that time so as to make ordinary use of the
converted house a nuisance. The situation in the present case is to be contrasted with that in
Sampson's case, where there was no noise from the roof above the plaintiff's flat before the
conversion. The nuisance only came about because of the way in which the terrace was
constructed and tiled.

It follows from what I have said that I do not think that the noise of which the plaintiff complains
was capable of giving rise to a liability in nuisance.

This conclusion is enough to dispose of this appeal in the council's favour but I will go on to
consider whether the council would be liable if, contrary to my view, the noise of which the plaintiff
complains was capable of amounting to a nuisance.

Responsibility

As a general rule the tenant as occupier rather than the landlord is liable for nuisance arising out
of the state of repair of property or the use which is made of it. But the landlord will be liable if he
causes, continues, or authorises the nuisance. If these principles were applied to the facts of this
case I have little doubt that the council would be liable on the basis that by 1992 when they let the
flat to the plaintiff they had let the other two flats in the house and they knew or ought to have
known that due to poor sound insulation in the house ordinary use of those two flats would unduly
interfere with the plaintiff's use and enjoyment of her flat.

But the house had poor sound insulation and the other flats were let at the time when the plaintiff
took her flat. Does this, as the judge held, give the council a defence to her claim in nuisance? The
answer to this question is again, I think, to be found in a line of authority going back into the last
century. This establishes that there is no implied covenant by a landlord that an unfurnished house
or flat which he lets is fit for habitation. If it is let in a dangerous or dilapidated condition then the
landlord is not liable for injury to the tenant, his family or guests. This principle was stated in
Robbins v Jones (1863) 15 CBNS 221 , 240 where Erle CJ said:

"A landlord who lets a house in a dangerous state, is not liable to the tenant's
customers or guests for accidents happening during the term; for, fraud apart, there
is no law against letting a tumble-down house; and the tenant's remedy is upon his
contract, if any."

It was applied by the House of Lords in Cavalier v Pope [1906] AC 428 to a claim by a tenant's
wife for personal injuries, where the claim was put in a number of ways including nuisance. It has
27/03/2020 Delivery | Westlaw India Page  14

been applied in many cases since to claims in negligence for personal injury. But in such cases a
landlord who is a "builder landlord" as opposed to a "bare landlord" does have a liability if the
accident is caused by his negligent design or construction of the premises: Rimmer v Liverpool City
Council [1985] QB 1 . It was applied by this court in McNerny v Lambeth London Borough Council
(1988) 21 HLR 188 , where the tenant alleged that the council were liable in negligence for
condensation dampness in her flat.

Do similar principles apply to a landlord's liability in nuisance? In his final note Mr Arden referred
us to Cheater v Cater [1918] 1 KB 247 . In that case the tenant's horse died as a result of eating
yew from the overhanging branches of trees growing on the landlord's adjoining land. The tenant's
*14  claim against the landlord in negligence and nuisance failed. The court cited with approval
the dictum of Mellish LJ in Erskine v Adeane (1873) LR 8 Ch App 756 , 761 where he said:

"The law of this country is that a tenant, when he takes a farm, must look and judge
for himself what the state of the farm is. Just as in the case of a purchaser of a
business the rule is caveat emptor, so in the case of taking the lease of property the
rule is caveat lessee; he must take the property as he finds it."

The court made it clear that this principle only applied where the adjoining occupiers were
landlord and tenant. Furthermore the court suggested and subsequent cases have established that
if the landlord created the nuisance after the letting he would be liable. Cheater v Cater [1918] 1
KB 247 and Cavalier v Pope [1906] AC 428 were applied in Shirvell v Hackwood Estates Co Ltd
[1938] 2 KB 577 to defeat a claim which had been put in nuisance and negligence by an employee
of a tenant who had been injured by a falling branch from a tree on the landlord's adjoining land.
However there is no recent reported case to which we were referred in which Cheater v Cater
[1918] 1 KB 247 has been applied.

Mr Goudie submits that Cheater v Cater is an example of the type of nuisance which involves
encroachment onto neighbouring land. Nuisance involving interference with enjoyment of land is of
a different kind. The principle laid down in Cheater v Cater should not apply to this kind of
nuisance. The applicable principles are those stated in this court in Sampson's [1981] 3 All ER 710
case and Baxter v Camden London Borough Council (No 1) 30 HLR 501 .

I do not think there is any logical or legal basis for making the distinction contended for by Mr
Goudie. Whilst the nature of the interference may be different each arises in a case of this kind
from the state of the adjoining premises. Moreover, if there is no liability in cases where physical
damage including personal injury is caused by defective premises, there can be no reason why the
same rule should not apply to nuisance from noise.

Neither Cavalier v Pope [1906] AC 428 nor Cheater v Cater [1918] 1 KB 247 were cited to the
Court of Appeal in Sampson's [1981] 3 All ER 710 case or Baxter v Camden London Borough
Council (No 1) 30 HLR 501 . If necessary therefore I would hold that these cases were decided per
incuriam. But, as I have already said I do not think the court in Baxter v Camden London Borough
Council (No 1) was making an authoritative statement of the law and in any event it was clear that
it was merely following Sampson's case. The decision in Sampson's case can be explained on the
basis that the construction of the terrace occurred after the letting to the plaintiff. The judge
distinguished Sampson's case on this basis although it is fair to say that the court did not give this
as a reason for its decision and it is difficult to discern the order of events from the report.

Secondly, Mr Goudie submits that if the rule in Cheater v Cater [1918] 1 KB 247 does apply to
noise nuisance it is confined, as in the case of negligence, to cases where the landlord is a bare
landlord. Here the council were a builder landlord because they carried out the conversion in 1975.
27/03/2020 Delivery | Westlaw India Page  15

I do not accept this submission. The duty of care which the landlord owes in cases such as Rimmer
v Liverpool City Council [1985] QB 1 is owed in his capacity as builder and not as landlord. In the
present case the plaintiff did not allege, nor could she, that the conversion in 1975 was carried out
*15  negligently. In my judgment the council's responsibility for nuisance as a landlord has to be
decided in accordance with the line of authority to which I have referred.

Finally, Mr Goudie submits that Cheater v Cater [1918] 1 KB 247 itself was decided per incuriam
because Sturges v Bridgman (1879) 11 ChD 852 , which establishes the well known principle that
it is not a defence that the plaintiff came to the nuisance, was not cited to the court.

I think the short answer to this submission is that this principle has no application to a case where
the parties are landlord and tenant. Such cases are decided on the principle of caveat lessee and
the fact, albeit a fiction, that the lessee is deemed to take the premises as they are.

It follows from what I have said that on this part of the case I think the judge reached the right
conclusion for the right reason although none of the cases which were binding on him were cited to
him.

This makes it unnecessary to consider in any detail Mr Arden's first reason for saying that the
council were not liable based upon an implied term excluding liability for nuisance caused by
ordinary use of the house. In support of this submission he cited Lyttleton Times Co Ltd v Warners
Ltd [1907] AC 476 . There the parties agreed that in a new building to be erected one would
occupy as lessee the top floor as an hotel and the other the lower part of the building for printing.
The Privy Council held that having ascertained the purposes to which the parties intended the
building to be put, each should be held to all that was implied in this common intention. As the
common intention was that the lower part of the building was to be used as it was, the occupier of
the top part could not complain of the noise nuisance which such use caused. This point was not
pleaded or argued in the court below and Mr Goudie objected to our dealing with it, not least
because the judge would have had to consider the effect of the Unfair Contract Terms Act 1977
upon the alleged implied term. I mention the point for completeness since it may be a point which
the courts will have to consider in future if the decisions of this court in Southwark London
Borough Council v Mills[2001] Ch 1 and in the present case are not determinative of the landlord's
responsibility in cases such as this.

No one can feel anything but sympathy for the plaintiff for what she has to endure. The
conclusions I have reached are consistent with what many might consider to be the harsh way in
which tenants are treated by the common law. But, as Dillon LJ said in McNerny v Lambeth London
Borough Council 21 HLR 188 , 194 : "this is an area where it is [for] Parliament to extend the
duties imposed on landlords of council flats or houses or other low standard accommodation. It is
not for the courts." Parliament has done so to an extent. In tenancies at a low rent there is an
implied covenant that the premises are fit for human habitation at the commencement of the term
and an undertaking by the landlord that they will be kept fit for habitation during the tenancy:
section 8 of the Landlord and Tenant Act 1985 . There is a similar term implied in relation to
furnished lettings. If those provisions had applied here it might have afforded the plaintiff a
remedy. Building regulations have set higher standards for construction and do now require sound
insulation for any new building or conversion. Sections 3 and 4 of the Defective Premises Act 1972
impose duties of care upon landlords for work which they carry out before the letting and for work
which they carry out during the letting pursuant to their repairing obligations. But, all this, I
appreciate, is no comfort to the plaintiff *16  in this case who does not have a remedy in nuisance
against the council in my judgment.

Clause B5
27/03/2020 Delivery | Westlaw India Page  16

I should finally deal with Mr Goudie's separate point on clause B5 of the tenancy. The judge held
that this clause merely required the council to take steps to prevent other tenants from causing a
nuisance by their unreasonable behaviour for which of course the council are not liable. But I can
see no reason why this clause should be construed so narrowly. It applies, as it says, "to any
nuisance caused to the tenant". That must include nuisance by the council themselves. But where
it is the council's nuisance the clause only provides an additional remedy. It does not create an
additional right since nuisance by the council has first to be shown. So as I have concluded that
there was no nuisance by the council the clause does not advance the plaintiff's case.

Conclusion

For the reasons I have given I would dismiss this appeal.

OTTON LJ I agree that the judge's finding that the noise emitted by the occupants of the adjoining
flats constituted an undue interference with the plaintiff's ordinary enjoyment of the use of her flat
amounting to an actionable nuisance cannot stand. Disagreeable as the plaintiff's experience has
undoubtedly been, all the evidence indicated that the noise emanated from the ordinary use of
their premises by her neighbours. In law, this did not amount to nuisance.

I also agree with the conclusion that even if nuisance had been established there is no cause of
action against the council as landlords for the reasons given. Of the many cases cited in argument
and in the further submissions one of the most analogous and helpful is Smith v Scott[1973] Ch
314 . The plaintiff was the owner of a dwelling house in a street which was being acquired by the
defendant corporation to house homeless families. The corporation placed as tenants in the house
adjoining that of the plaintiff a family known by the corporation to be likely to cause a nuisance.
Thereafter the tenants so damaged the plaintiff's premises and caused such a noise that he was
obliged to leave his house and seek other accommodation. He brought an action against the
corporation for injunctions restraining them from allowing any persons permitted by the
corporation to occupy the house adjoining that of the plaintiff to do the acts complained of.

On the question whether the corporation's knowledge that the tenants might cause a nuisance
rendered the corporation liable to the plaintiff for the acts of nuisance, Sir John Pennycuick V-C,
dismissing the action, held that the corporation were not liable as landlord for a nuisance
committed by their tenants, for they had neither expressly nor impliedly authorised the nuisance.
He said, at p 321:

"(1) It is established beyond question that the person to be sued in nuisance is the
occupier of the property from which the nuisance emanates. In general, a landlord is
not liable for nuisance committed by his tenant, but to this rule there is, so far as
now in point, one recognised exception, namely, that the landlord is liable if he has
authorised his tenant to commit the nuisance: Harris v James (1876) 35 LT 240 . But
this *17  exception has, in the reported cases, been rigidly confined to circumstances
in which the nuisance has either been expressly authorised or is certain to result from
the purposes for which the property is let ... it would, I think, be impossible to apply
the exception to the present case. The exception is squarely based in the reported
cases on express or implied authority: see in particular the judgment of Blackburn J
in Harris v James 35 LT 240 , 241 ... notwithstanding that the corporation knew the
Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the
corporation impliedly authorised the nuisance."
27/03/2020 Delivery | Westlaw India Page  17

The outcome of this appeal is accordingly in line with the decision in Smith v Scott [1973] Ch 314 .

I only wish to add that I have considerable sympathy for the judge. He did not have the benefit of
the line of authority to which Stuart-Smith LJ has referred. Even so he seems to have adopted the
correct approach as if by instinct. He said:

"in the law of landlord and tenant, the tenant who takes premises in a defective state
is unable to complain about that defect save if the defect is a breach of some express
or implied term of the tenancy or some statutory provision. Here there is no such
remedy under the terms of the tenancy."

And later:

"As regards implied obligation, there is no warranty on the letting of a dwelling house
that it is fit for habitation. Even if there were such a warranty I doubt if this noise,
though unpleasant, could be said to make the house unfit for habitation. These
matters are all examples of the principle of caveat emptor in the landlord and tenant
field."

If this line of authority had been brought to his attention he would have been able to confirm that
his instinct was sound.

I, too, would dismiss the appeal.

STUART-SMITH LJ I agree that this appeal fails. I agree with Tuckey LJ for the reasons he gives
that although the judge found that the noise from the adjoining flats, and particularly the one
above, unduly interfered with the plaintiff's enjoyment of her flat, it did not amount to an
actionable nuisance.

Moreover, in my judgment, even if the noise had amounted to a nuisance, it would not have been
actionable against the defendant council, the landlord. It was established in Robbins v Jones15
CBNS 221 that "a landlord who lets a house in a dangerous state, is not liable to the tenant's
customers or guests for accidents happening during the term; for, fraud apart, there is no law
against letting a tumble-down house; and the tenant's remedy is upon his contract, if any": see
per Erle CJ, at p 240.

This principle had been followed ever since, for example in Cavalier v Pope [1906] AC 428 , per
Lord Macnaghten, at p 430, and Lord Atkinson, at p 432 , and Cheater v Cater [1918] 1 KB 247 —
a case of nuisance of poisonous trees on the landlord's land which were in a dangerous condition
at the time of the lease. If the defendant had merely been an adjoining owner, he would have
been liable; but because he was the lessor he was not. The rule, as both Pickford LJ, at p 252, and
Bankes LJ, at p 255, said, is "caveat lessee". This was followed by the majority of the Court of
Appeal in Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 (per Greer LJ and *18  Bennett J).
That was a case of a dangerous branch of a tree which fell and killed one of the tenant's
employees, the danger existing at the time of the lease. This line of authority was also followed in
McNerny v Lambeth London Borough Council 21 HLR 188 , .

It is unfortunate that this line of authority was not raised by Mr Arden for the council, though I
think it was probably the basis of Judge Green QC's decision to the effect that the council were not
liable in nuisance because "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", and his subsequent
reference to "the principle of caveat emptor in the landlord and tenant field". The judge was not
27/03/2020 Delivery | Westlaw India Page  18

referred to this line of authority, nor was this court until we raised the point in the course of
argument. Since neither counsel had considered it, we invited further submissions in writing.

This line of authority was not referred to in Sampson v Hodson-Pressinger [1981] 3 All ER 710 .
That case may be explicable on the facts on the basis that the nuisance was created by the
landlord doing defective work on the terrace during the currency of the plaintiff's term. It is by no
means clear what the relevant dates are. But if the court intended to hold that the landlord was
liable in respect of the defect in the premises which existed at the commencement of the lease, it
seems to me that it must have been per incuriam the line of cases to which I have referred.

Likewise these cases are not referred to the Court of Appeal in Baxter v Camden London Borough
Council (No 1) 30 HLR 501 , where this court simply followed Sampson's case. Moreover, there
does not seem to have been full argument on the point, the court being satisfied that the county
court judge was wrong.

The harshness of the common law rule has to some extent been ameliorated by statute. In
tenancies at a low rent there is an implied covenant that the premises are fit for human habitation
at the commencement of the term and an undertaking by the landlord that they will be kept fit for
habitation during the tenancy ( section 8 of the Landlord and Tenant Act 1985 ). There is a similar
term implied in relation to furnished lettings. If such a covenant had existed here it might have
afforded the plaintiff a remedy. Section 604 of the Housing Act 1985 deals with conditions which
render a dwelling unfit for human habitation. There are other exceptions, including a duty of care
owed under the Defective Premises Act 1972 , which are listed in Woodfall, Landlord and Tenant,
looseleaf ed, vol 1, para 13.002.

It is to be noted that the Law Commission Report, Landlord and Tenant: Responsibility for State
and Condition of Property (1996) (Law Com No 238), recommended that the implied covenant as
to fitness for human habitation be extended to leases of dwelling houses of less than seven years
(para 11.16), but rejected a suggestion that the standard of fitness laid down in section 604 of the
Housing Act 1985 should include sound insulation (para 4.44). This is consistent with my view as
to the position at common law.

In their further supplemental note counsel for the plaintiff submit that the principle in Cheater v
Cater [1918] 1 KB 247 and Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 are instances of
encroachment from neighbouring land and that the same principle does not apply to nuisance
involving interference with enjoyment of land. In my judgment this is not a valid distinction.
Robbins v Jones 15 CBNS 221 and Cavalier v Pope [1906]AC 428 *19  are cases of physical
damage due to defective premises. If the rule applies in those cases, which are more serious
because they involve personal injury, then I can see no reason why it should not apply to nuisance
from noise.

In their second supplementary note the plaintiff's counsel submit that the rule does not apply
where the landlord is also the builder; it only applies where the landlord is the bare landlord; for
this proposition Rimmer v Liverpool City Council [1985] QB 1 is cited. But that is a case in
negligence where the defendant has negligently created the defect in the premises. In such
circumstances the landlord-builder is under a duty of care; it is owed qua builder and not qua
landlord. In the present case there was no evidence or finding of negligence. Although in her
amended particulars of claim the plaintiff alleged that the council failed "to take any or any
reasonable care to abate the nuisance", that was not pursued at trial. In any event if there was a
nuisance for which the council were liable, they would be obliged to abate it, irrespective of
negligence.

The plaintiff's counsel also submit that if there is actionable nuisance, then there is no exclusion of
liability clause in the tenancy agreement; and if there was, it would be subject to the Unfair
27/03/2020 Delivery | Westlaw India Page  19

Contract Terms Act 1977 . But this begs the question; for the reasons I have given there is no
liability in nuisance on the part of the landlord.

The plaintiff's counsel further submit that Sturges v Bridgman 11 ChD 852 , in which it was held
that it was no defence that the plaintiff came to the nuisance, was not cited in Cheater v Cater
[1918] 1 KB 247 or Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 . This is because that
principle has no application to the situation where the parties are landlord and tenant. These cases
are founded upon the principle of caveat lessee and the fact, albeit a fiction, that the lessee is
deemed to take the premises as they are.

Representation

Solicitors: Goldbergs ; Solicitor, Camden London Borough Council .

Appeal dismissed. Costs order nisi against legal aid fund with nil contribution. Leave to appeal.
(Reported by Isobel Collins, Barrister )

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