e-flash 395
Nessa v Tower Hamlets LBC
[2010] EWCA Civ 559
The High Court has refused to strike out a claim brought by a tenant of a flat against her landlord in respect of nuisance occurring in the common parts of her block and in other areas in the landlord’s possession. The High Court accepted that the claim fell squarely within the principle of Sedleigh-Denfield v O’Callaghan [1940] AC 880, HL, and was not precluded by Hussain v Lancaster CC [2000] QB 1; (1999) 31 HLR 164, CA.
Ian Loveland of Arden Chambers appeared for Ms Brumby.
Ms Brumby lived in a flat on the lower ground floor of a mansion block. The defendant was her landlord and the owner of the block. A tenant of a flat on the fourth floor received large numbers of visitors, many of whom were evidently seeking to buy drugs. The visitors’ behaviour caused substantial nuisance to Ms Brumby. She complained about incidents which occurred in the common parts of the block (the stairways and entrance hall), in the external entrance area to the flats, and particularly in an area she called ‘the trench’, which immediately abutted her living room window and which was easily accessible through a gap in the railings by the external entrance area. The nuisance took the form of frequent loitering in the trench, banging on Ms Brumby’s windows at all hours of the night, staring at her in a threatening way, otherwise intimidating her, intercepting her mail, and loitering in and littering the common parts of the block. The tenant on the fourth floor was eventually evicted for anti-social behaviour but by then Ms Brumby had endured some four years of anti-social behaviour.
Ms Brumby argued that her landlord was caught by the rule in Sedleigh-Denfield v O’Callaghan [1940] A.C. 880, HL, namely that where a person [O] in possession of land becomes aware that that land is a source of nuisance to a person [N] in possession of adjacent land, then O will be liable in nuisance to N for diminution to the amenity value of N’s land if O could have taken but failed to take such steps as were reasonable in the circumstances to end or reduce the nuisance. She contended that it was not necessary under the rule in Sedleigh-Denfield for the landowner to have actively encouraged or participated in the nuisance and accepted that no such encouragement or participation had occurred in her case.
Ms Brumby asserted, inter alia, that it would have been reasonable for her landlord to have blocked access to the trench, to have installed an entry phone system and a lockable mailbox much more quickly than it eventually did, to have begun trespass proceedings against the ‘visitors’ and to have secured the other tenant’s eviction more expeditiously.
The landlord applied to strike out the claim, relying on Hussain v Lancaster [2000] 1 Q.B. 1; (1999) 31 H.L.R. 164, CA, and Mowam v Wandsworth LBC [2001] 33 H.L.R. 56, CA, and contending that it was clearly established that a landlord is not liable for nuisance caused by its tenants unless it has actively participated in or encouraged the nuisance; nor could it be liable for nuisance caused by visitors to a tenant even if all the nuisance in issue emanated from land that was in the landlord’s possession.
The landlord further argued, relying on Southwark LBC v Tanner; Baxter v Camden LBC (No 2) [2001] 1 A.C. 1; (2000) 32 H.L.R. 148, HL, that Ms Brumby was seeking to impose a liability on the landlord to improve her premises above and beyond the contractual repairing responsibilities in her lease. Ms Brumby argued that the works which she said should have been done were works to the landlord’s premises and not works to the land demised to her, and that Sedleigh-Denfield was clear authority for the proposition that a landowner could be required to effect works to its own land to abate a nuisance.
In the county court, the judge refused to strike out the claim in nuisance (although an alternative claim for breach of covenant for quiet enjoyment was struck out). He held that the cases relied upon by the landlord were irrelevant to the claim being made. The issue was that this was a claim in respect of nuisance occurring on land owned by and in the possession of the landlord and the principle in Sedleigh-Denfield applied. Whether or not it would have been reasonable in the circumstances for the landlord to have taken all, some or any of the steps identified by Ms Brumby was a matter to be determined at trial on the basis of the evidence adduced by the parties.
The landlord’s appeal to the High Court was dismissed. Mackay J. approved the reasoning of the county court judge and accepted the submissions on Ms Brumby’s behalf that the crucial issue in a nuisance case was not who caused the nuisance but where it was coming from. The claim was appropriate for trial.
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