Welcome to the first of our RED Alerts of 2023.
Featured in this month's update:
Tejani v Fitzroy Place Residential Limited and another [2022] EWHC 2760 (TCC)
Summary
An owner of a Central London residential apartment claimed damages for nuisance caused by noise thought to be coming from the façade of the building.
The facts
This case concerned a new build residential apartment (the Apartment) which was part of a building in Fitzrovia, London. The Claimant, Mr Tejani bought the apartment off plan in 2012 for £2.595 million and completed the purchase in May 2016 when the apartment was complete. The Defendants were the landlord and the developer.
Mr Tejani claimed that there were unusual noises heard within the Apartment to such an extent that they constituted an actionable private nuisance and the landlord was therefore liable in damages. In the alternative, Mr Tejani claimed damages for breach of the covenant of quiet enjoyment although it was accepted that there could be no such breach unless a private nuisance was established.
In addition, Mr Tejani claimed that the developer did not take reasonable steps to rectify defects of which they had been notified in accordance with their contractual obligations. Clause 5.6 of the contract for sale stated:
”The Developer shall take reasonable steps to procure that any defects in the Works …….. shall be remedied as soon as reasonably practicable ………provided always that the Buyer shall have given notice in writing to the Developer of any such defects no later than twenty — three (23) months following the Certificate Date …………."
The noises
It appeared from the expert evidence that the noises were being created by the movement of components of the façade due to thermal effects. The parties disagreed, however, on the type and level of the noise and whether or not they were sufficient to amount to nuisance or breach of the covenant for quiet enjoyment.
Mr Tejani relied on his evidence and that of his children who in fact spent more time in the apartment than Mr Tejani and his wife. The Tejani family described the noises as a "bang", "a loud thud….", "a click and pop…."
Both parties appointed noise experts who in the main agreed about the type and level of the sounds but disagreed as to standard that should be applied. The experts prepared some audio simulations for the court based on their recordings.
The law on private nuisance
In Lawrence and another v Fen Tigers Ltd and others [2014] UKSC 13 , Lord Neuberger described nuisance as:
"an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant’s reasonable enjoyment of his land….
Lord Wright said in Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903 said:
“a useful test is perhaps what is reasonable according to the ordinary usages of making a living in society, or more correctly in a particular society”
In Sturges v Bridgman (1879) 11 Ch D 852, 865, Thesiger LJ observed that the locality of the nuisance complained of was relevant and “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.
In addition, the authorities suggest that regard must also be had to the standards of the average person rather than just the litigant in any particular case.
Taking the case law into account, the Judge in this case concluded :
"I have taken from these authorities that for the noise the subject of the current action to give rise to an actionable nuisance it must be such as to materially interfere with the ordinary comfort of the average person living in the Apartment taking into account the character of the neighbourhood."
The decision
The first question for the Judge was whether the noise being experienced was sufficient to give rise to an actionable nuisance. The Judge considered the locality not to be very relevant in this case bearing in mind it was situated in central London in an area where there was some noise intrusion from nearby bars and traffic. Having said that, it was also noted that some but not all the noise complained of would be masked by such external noise.
Next the Judge noted that the noise was unlikely to cause a person to wake up at night. This was because there were few instances of the noise occurring at night and the noise was less audible in the master bedroom than in other areas. The Judge also did not accept that the noise heard in the simulations played in court would awaken someone.
The Judge then considered whether the noise might still materially interfere with the ordinary comfort of someone living in the Apartment and concluded that it would not. Consequently, the claim for damages based on private nuisance and breach of the covenant for quiet enjoyment failed.
Turning now to the claim against the developer, the Judge found that there was a defect within the meaning of the contract but that there was no liability as Mr Tejani had not properly notified the developer within the strict time limit of 23 months. The Judge also held that even if wrong on that point, the developer had taken reasonable steps to remedy the problem.
Our comments
As the Judge noted, this was a difficult outcome for Mr Tejani and his wife. It is a clear reminder that noise nuisance cases are notoriously difficult to establish unless the interference is obvious and persistent. Otherwise, it is a matter for the Judge to decide on the expert evidence whether lower levels of intermittent noise can interfere with a person's enjoyment of their property. It is also critical for new build purchasers to take up matters with the developer as soon as possible after completion and in accordance with the terms of their contract.
