London Borough of Southwark et al. v. Mills et al., (1999) 250 N.R. 210 (HL)

• Case Date: October 21, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 250 N.R. 210 (HL)

London Borough of Southwark v. Mills (1999), 250 N.R. 210 (HL)

MLB headnote and full text

London Borough of Southwark (respondents) and another v. Mills and others (A.P.) (appellants)

Baxter (A.P.) (appellant) v. Mayor etc. of the London Borough of Camden

(respondents)

Indexed As: London Borough of Southwark et al. v. Mills et al.

House of Lords

London England

Lord Slynn of Hadley, Lord Steyn, Lord Hoffmann, Lord Clyde and Lord Millett

October 21, 1999.

Summary:

Tenants in the London Borough of South­wark complained that they could hear all of the sounds made by their neighbours because their flats had no sound insulation. They asserted that they could hear not only the neighbours' televisions and their babies crying, but also their coming and going, their cooking, cleaning, their quarrels and their love-making. The tenants applied to the Arbitration Tribunal maintained by the Council for a remedy. The Arbitration Tri­bunal allowed the complaint holding that the Council breached the tenancy agreement of quiet enjoyment. The Council appealed. The High Court dismissed the appeal ([1998] 3 W.L.R. 49). The Council appealed again. The Court of Appeal allowed the appeal ([1999] 2 W.L.R. 409). The tenants appealed to the House of Lords.

At approximately the same time, a tenant in the London Borough of Camden had the same complaint. He commenced proceedings in the Central London County Court. His claim was dismissed. The tenant appealed. The Court of Appeal dismissed the appeal. The tenant appealed to the House of Lords.

The House of Lords heard both appeals together and dismissed both appeals.

Landlord and Tenant - Topic 1381

The premises - Quiet enjoyment - General - The House of Lords, per Lord Hoff­mann, stated that the covenant for quiet enjoy­ment was a covenant that the tenant's lawful possession of the land would not be substantially interfered with by the acts of the lessor or those lawfully claiming under him - The court further stated that two points about the covenant required notice -"First, there must be a substantial inter­ference with the tenant's possession. This means his ability to use it in an ordinary lawful way. The covenant cannot be ele­vated into a warranty that the land is fit to be used for some special purpose." - The second feature of the covenant was that the tenant's lawful possession would not be interfered with by the landlord or anyone claiming under him - However, this did not apply to things done before the grant of the tenancy, even though such things could have continuing consequences for the tenant - See paragraphs 12 and 13.

Landlord and Tenant - Topic 1398

The premises - Quiet enjoyment - Breach -Interference by landlord - Tenants of the London Boroughs of Southwark and Camden complained of being able to hear all the sounds made by the neighbours because their flats had no sound insulation - The tenants sought to have the landlords (i.e., the Councils) remedy the situation by soundproofing their buildings - The ten­ants alleged, inter alia, that the disturbance breached the covenant of quiet enjoyment in their respective tenancy agreements - The House of Lords held that there was no breach of quiet enjoyment - When the premises were leased, there was no sound insulation - The noise already existed - The tenants, although affected by the noise, had no claim because their lawful possession of the land as it existed at the time of the lease had not been substantially interfered with by the acts of the landlord or those lawfully claiming under him - See paragraphs 1 to 21.

Landlord and Tenant - Topic 1885

The premises - Liability of landlord for defective or dangerous premises - For failure to repair - The House of Lords, per Lord Hoffmann, stated that in a tenancy agreement a clause stating that the Council agreed to keep structure in repair meant that the Council agreed to remedy disrepair - "The landlord is obliged only to restore the house to its previous good condition. He does not have to make it a better house than it previously was" - See paragraph 6.

Landlord and Tenant - Topic 2745

The lease - Liability of landlord - Nui­sance - The House of Lords, per Lord Millett, stated that the ordinary use of residential premises without more was not capable of amounting to a nuisance - See paragraph 46.

Landlord and Tenant - Topic 2745

The lease - Liability of landlord - Nui­sance - Tenants of the London Boroughs of Southwark and Camden complained of being able to hear all the sounds made by the neighbours because their flats had no sound insulation - The tenants sought to have the landlords (i.e., the Councils) remedy the situation by soundproofing their buildings - The tenants alleged, inter alia, that the landlords were liable to them for nuisance - The House of Lords rejected this argument - Normal use of an adjoining or nearby residential flat did not constitute an unreasonable interference with the utility of the tenants' premises - Conse­quently, there could be no nuisance - See paragraphs 22 to 27.

Torts - Topic 1005

Nuisance - General principles and defi­nitions - Nuisance - Defined - The House of Lords, per Lord Hoffmann, stated that nuisance involved "doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the plaintiff's land. The primary defendant is the person who caused the nuisance by doing the act in question" - See paragraph 22.

Torts - Topic 1260

Nuisance - Particular nuisances - Noise and vibration - [See second Landlord and Tenant - Topic 2745 ].

Cases Noticed:

Hart v. Windsor (1843), 12 M. & W. 68, refd to. [para. 6].

Edler v. Auerbach, [1950] 1 K.B. 359, refd to. [para. 6].

Quick v. Taff Ely Borough Council, [1986] Q.B. 809 (C.A.), refd to. [para. 6].

McNerny (Kay) v. London Borough of Lambeth (1988), 21 H.L.R. 188 (C.A.), refd to. [para. 7].

Jenkins v. Jackson (1888), 40 Ch. D. 71, refd to. [para. 11].

Kenny v. Preen, [1963] 1 Q.B. 499 (C.A.), refd to. [para. 11].

Dennett v. Atherton (1872), L.R. 7 Q.B. 316, refd to. [para. 12].

Sanderson v. Berwick-upon-Tweed Corp. (1884), 13 Q.B.D. 547, refd to. [para. 12].

Browne v. Flower, [1911] 1 Ch. 219, refd to. [para. 12].

Phelps v. London (City) Corp., [1916] 2 Ch. 255, refd to. [para. 12].

St. Helen's Smelting Co. v. Tipping (1865), 11 H.L. Cas. 642, refd to. [para. 12].

Anderson v. Oppenheimer (1880), 5 Q.B.D. 602, refd to. [para. 13].

Spoor v. Green (1874), L.R. 9 Exch. 99, refd to. [para. 13].

Lyttleton Times Co. v. Warners Ltd., [1907] A.C. 476 (P.C.), refd to. [para. 14].

Southwark London Borough Council v. Mills, [1999] 2 W.L.R. 409 (C.A.), refd to. [para. 16].

Duke of Westminster v. Guild, [1985] Q.B. 688 (C.A.), refd to. [para. 19].

Sampson v. Hodson-Pressinger, [1981] 3 All E.R. 710 (C.A.), refd to. [para. 20].

Smith v. Scott, [1973] Ch. 314, refd to. [para. 22].

Cambridge Water Co. v. Eastern Counties Leather plc., [1994] 2 A.C. 264; 162 N.R. 301 (H.L.), refd to. [para. 23].

Bamford v. Turnley (1862), 3 B & S. 62, refd to. [para. 24].

Carstairs v. Taylor (1871), L.R. 6 Exch. 217, refd to. [para. 32].

Kiddle v. City Business Properties Ltd., [1942] 1 K.B. 269, refd to. [para. 33].

Broder v. Saillard (1876), 2 Ch. D. 692, refd to. [para. 43].

Ball v. Ray (1873), L.R. 8 Ch. D. 467, refd to. [para. 45].

Malzy v. Eichholz, [1916] 2 K.B. 308 (C.A.), refd to. [para. 48].

Hudson v. Cripps, [1896] 1 Ch. 265, refd to. [para. 51].

Owen v. Gadd, [1956] 2 Q.B. 99 (C.A.), refd to. [para. 52].

Hunter et al. v. Canary Wharf Ltd.; Hunter et al. v. London Docklands Development Corp., [1997] A.C. 655; 215 N.R. 1 (H.L.), refd to. [para. 53].

Leech v. Schweder (1874), 9 Ch. App. 463, refd to. [para. 56].

Davis v. Town Properties Investment Corp., [1903] 1 Ch. 797 (C.A.), refd to. [para. 59].

Robbins v. Jones (1863), 15 C.B.(N.S.) 221, refd to. [para. 62].

Authors and Works Noticed:

Norton, Deeds (2nd Ed. 1928), pp. 612, 613 [para. 13].

United Kingdon, Law Commission, Land­lord and Tenant: Responsibility for State and Condition of Property Report (1996), Law Com. No. 238, paras. 11.16, 11.28, 11.29 [para. 7].

Counsel:

Kim Lewinson, Q.C., and Jan Luba, for the appellants, Mills et al.;

Michael Barnes, Q.C., and Donald Broatch, for the respondents, London Borough of Southwark et al.;

James Goudie, Q.C., and Zia Nabi, for the appellant, Baxter;

Andrew Arden, Q.C., and C. Baker, for the respondent, Mayor etc. of the London Borough of Camden.

Agents:

Anthony Gold Lerman Muirhead, for the appellants, Mills et al.;

Southwark Legal Services, for the respon­dents, London Borough of Southwark et al.;

Goldbergs, for the appellant, Baxter;

Solicitor London Borough of Camden, for the respondent, Mayor etc. of the London Borough of Camden.

This appeal was heard at London, England, on June 8, 9 and 10, 1999, before Lord Slynn of Hadley, Lord Steyn, Lord Hoff­mann, Lord Clyde and Lord Millett, of the House of Lords. The decision of the court was delivered on October 21, 1999, includ­ing the following speeches:

Lord Slynn of Hadley - see paragraphs 1 to 2;

Lord Steyn - see paragraph 3;

Lord Hoffmann - see paragraphs 4 to 27;

Lord Clyde - see paragraph 28;

Lord Millett - see paragraphs 29 to 67.