England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BEFORE MR JOHN SLATER QC
(SITTING AS A DEPUTY JUDGE OF
THE HIGH COURT)

		29 July 2002

Introduction

1. In a crescent that runs at the south end of the Royal Albert Hall there is a block of Victorian flats known as Albert Court. When built, some of the accommodation provided occupied two floors as duplex apartments. One such duplex apartment is now sub-divided into two separate flats, one, in part, directly above the other and known as 14/14A on the second floor, with the flat below 14B on the first floor. Flat 14B is directly below the southern half of flat 14/14A. The layout and accommodation is clearly depicted in figures 1 and 2 to the main report of the jointly instructed expert, Dr Howard Latham of Messrs Bickerdike Allen Partners.
2. The dispute in this case arises out of the fact that the accommodation in 14/14A has been altered, both as to layout and distribution of rooms and as to floor coverings. The result is that the Claimant, Mr Leslie Stannard, who occupies flat 14B, complains that he, his wife and family, suffer disturbance by noise amounting to a nuisance penetrating from the flat above, 14/14A, which is occupied by the Sixth Defendant, Mr Al Sharekh, his family and household.

The factual background

3. The history of the Claimant's occupation of flat 14B is set out in great detail in some four witness statements served in the action. The statements most directly relevant for present purposes are his third and fourth statements. The first statement was provided in connection with the difficult earlier procedural history of this action and the facts and matters that principally concerned Defendants 1 to 5, who are no longer in the action.
4. The Claimant is an architect by profession. In February 1971, he took an underletting by deed of 14B Albert Court. His grant was for a fixed term of just over three years, at a yearly rent of £875. When the term expired, the Claimant held over as a statutory tenant protected by the Rent Acts. The terms upon which the Claimant holds are significantly different from those contained in the long leases, for example that held by the Sixth Defendant. The Claimant has lived in flat 14B for more than 30 years. In broad terms, the first 20 years of his occupation were peaceful and uneventful. The Claimant explained to me that in earlier times problems such as now encountered never arose. In the first instance, the former landlords maintained a vigilant control over the use and occupation of the flats. So, for instance, any proposed change in the usage of the accommodation was closely monitored and controlled. Furthermore, both in the deed that the Claimant holds under and in the long lease owned by the Sixth Defendant there are provisions relating to the prohibition of noisy conduct and causing annoyance to fellow lessees and residents. The terms in the long lease are much more stringent. There is a requirement, for the mutual benefit of all lessees, to the effect that there must be maintained in place floor coverings, carpeting and the like, designed to minimise noise transmission.
5. It is common ground between the parties before me that the Claimant is not in a position to obtain an order for specific performance of the covenant in the "Al Sharekh lease", presumably because Mr Stannard is not a "lessee for the time being" of his flat and therefore he lacks sufficient locus standi to maintain simple enforcement proceedings. However, both parties are also agreed that the provisions of the Al Sharekh lease are part of the material background, against which it ultimately falls to me to determine what is reasonable in the context of an action for nuisance, where the particular nuisance complained of is noise invasion.
6. In the autumn of 1990, the Fourth and Fifth Defendants, then the owners of 14/14A, carried out certain alterations to the accommodation. This gave rise to a host of problems, including contamination of the hot water supply to Mr Stannard's flat, water leakage and penetration, causing damage to ceilings, walls and so forth and noise arising from the installation of a marble floor in the long hallway and stone floors in the new kitchen and two new bathrooms, which were above the drawing room and bedroom of flat 14B. The new arrangements gave rise to much disturbance by noise. In June of 1992 the Fourth and Fifth Defendants assigned their interest to the Second and Third Defendants but there was no improvement. Many of the problems encountered today stem from the fact that the reorganisation has given rise to a failure in stacking arrangements, so that the vertical distribution of accommodation is incompatible with the minimisation of noise invasion. For example, the kitchen and principal bathroom of 14/14A are now directly above the Claimant's drawing room. Both are currently floored with ceramic or similar tiles. A new bathroom, with a wc system that involves the use of a macerator, was installed directly above the Claimant's bedroom. It, too, has a ceramic floor. The long hallway in 14/14A is, as stated, floored with marble, presumably laid directly onto the floorboards and connecting with the structure of the building, with a strip of carpet down the centre, the precise laying arrangements of which are not known. I have been shown photographs and the general picture is clear.
7. It is undoubtedly the case that the Claimant has had to endure since 1990 much inconvenience and disturbance as well as invasion by water and noise. None of the earlier history is in any way due to the Sixth Defendant. A chronology sets out the history and it is dealt with in detail in the judgment of Master Eyre handed down in writing on 14 December 2000. This history is not directly relevant to the present dispute. Its sole relevance is that it has undoubtedly made the Claimant very sensitive to noise disturbance from the flat above, a fact which he clearly recognises and has tried to make allowances for, as best he can. The rest of the unfortunate history is set out in the judgment of Master Eyre and it is unnecessary for me to set it out again in this judgment. The upshot is that the action against all other defendants, apart from the Sixth Defendant, is no longer effective and the Claimant is left with an action against his former solicitors in relation to those parts of the claim which were struck out for want of prosecution.
8. In November 1994 the Second and Third Defendants assigned their interest to the Sixth Defendant. Nothing further was done and the inconvenience and disturbance by noise continued. It should be noted that despite a plea of laches in relation to the conduct of the proceedings as against the Sixth Defendant, Master Eyre found that he did not see that any injustice would be done if the Claimant were permitted to continue with that part of the action.
9. After December 2000, the action proceeded against the Sixth Defendant alone. Master Eyre directed that the Claimant and Sixth Defendant should have permission to adduce the evidence of a single expert jointly instructed in relation to the question of noise. Provisions were made for the lodging of written questions for the jointly instructed expert to answer. That procedure has been followed by both parties.
10. The main report from Dr Latham is dated 25 May 2001. He carried out a series of tests, the main conclusion of which was that impact sound results derived from the marble, stone and vinyl floors, as were then in place, did not meet the numerical requirements stated in Approved Document E, issued under the Building Regulations 2000, a copy of which has been provided to the Court. The numerical requirements were not met either for the standard of newly built accommodation or for that which would be appropriate for conversions. Dr Latham's express conclusion was "We find that the numerical results obtained justify the complaints of noise nuisance".
11. Against that background, at the outset of the trial, the only evidence before the Court in written form was from the Claimant himself and the jointly instructed expert. However, upon the application of the Sixth Defendant, I granted permission for the late service and reception in evidence of two statements, one from the Sixth Defendant's wife, Mrs Al Sharekh, who in fact gave evidence before me, and one to be received in written form only, the statement of Ms Heng.
12. The Claimant gave evidence before me. He verified the statements that he had previously signed and outlined in graphic detail the problems encountered by his living below flat 14/14A. He described how anyone walking along the marble floor, particularly in high heels, and both adults and children walking or running, were very audible in the flat below. He described how, when he was in bed at night, he could hear the use of the bathroom above. He described how times had changed and the hours that his neighbours now kept were very different from those of 20 years ago. Thus the problem would be exacerbated, in particular, when some members of Mr Al Sharekh's family were in residence, which was not constant, but they would keep hours very different from that of the Stannard family. For example, they would come home in the small hours of the morning, sometimes with friends and guests, and the noise from the floors above and the bathroom were obvious and disturbing. In fact, the only constant occupant of flat 14/14A is the maid. But the Stannards are very aware of her presence. She is constantly in the flat. She often has friends there. They can hear her hoovering and moving around throughout the day. They can hear chairs scraping on the floor in the kitchen and so forth.
13. The Claimant described how in former times everyone maintained carpets in position and accommodation was vertically compatible with the result that disturbance by noise was minimal. He says that he is aware of other complaints of noise in the block as a result of the new mode and the redistribution of accommodation. In particular, he describes how some flats, like his, are below flats which are floored in marble. In cases where the marble floor has been laid with some kind of resilient acoustic barrier, there is no problem and the previously civilised arrangements are thereby continued. In other cases there are problems arising from noise transmission. He said that there had been a "terrific amount of stress" in his life and that this invasion by noise exacerbated that stress. He said "It is more than 1 can bear". In terms of volume he described that there was a lot of impact noise coming through the structure. He was skilfully cross-examined. I should mention that, at the outset of the trial, counsel for the Sixth Defendant asked for an adjournment of the trial date, because of the late service of some of the documents and statements. However, counsel frankly and helpfully informed the Court that he had been able to prepare the case. In my judgment there was no aspect of the matter that counsel for the Defendant did not skilfully explore in order to try to undermine the credibility of Mr Stannard.
14. It is undoubtedly the case that Mr Standard's usage of words has varied over time. For example, the frequency of the comings and goings of the Al Sharekh sons, the ones who enjoy particularly late hours, was described as "often" in his statement but he agreed that the better adjective would be "occasional". Other complaints were expressed to be "continuous" and he agreed the better word would be "continuing". They were some inconsistencies between his present account and that which features in some of the pleadings, which he explained as due to a misunderstanding on the part of his then solicitors. He accepted that the background events in the pre-Al Sharekh days have had a considerable effect on him, and have given rise to a very low level of tolerance to invasion by noise from above. He also accepted that the fact that he had had his action for substantial damages, perhaps £60,000 worth of water damage, struck out and was now having to sue his previous solicitors was also part of the background that made him feel the stress all the more. He also explained that quite independently he had another action on foot again against a yet further firm of solicitors, who had misappropriated funds derived from the sale of a property which he had owned, in the same block, and that he was having to sue them for fraudulent misconduct.
15. The Claimant is also of the view that the development of the flat above should not have been allowed to proceed, either at all, or certainly not in the way in fact undertaken. I am not directly concerned with whether there has been a breach of planning regulations or listed building consent. It seems to me that the direct relevance of those factors is that where you have incompatible stacking, the resultant noise interference is likely to be less acceptable, because the background against which you hear the noise is not kitchen for kitchen or bathroom for bathroom but as I have described in the earlier part of this judgment.
16. I have considered carefully the various skillful challenges made to show inconsistencies in account and in some cases lack of specific detail, for example the inconsistencies in complaints about the washing machine, where Mr Stannard's account has not been precise. Nonetheless having seen the Claimant and having heard his evidence, having seen and considered the contemporaneous documents exhibited to his first witness statement and taking into account the conclusions of the jointly instructed acoustic expert, I am quite satisfied that Mr Stannard's account is true and accurate, when he describes the nature, effect, extent and character of the noise invasion, which he and his family have had to endure and continue to endure. I found him to be a highly intelligent and sensitive man, who has undoubtedly had to suffer the slings and arrows of outrageous fortune over the last ten or more years and I take that into account when judging whether what he has to tolerate is reasonable or not. He may well be oversensitive now to the problems. I do not however consider that this degree of over-sensitivity has prevented the Claimant from giving a fair and accurate picture to the Court, so as to enable me to judge whether what he has to tolerate is within the bounds of the reasonable or otherwise.
17. Dr Latham gave oral evidence before me twice during the trial, on the question of liability, before I indicated my views on liability and then again to assist the Court and the parties with devising the form of relief that should be directed. Dr Latham prepared his main report, as stated above, in May 2001. His overall conclusions then were that in relation to all three areas then examined, the marble tile area, the stone floor tile area and the vinyl floor tile area, each of them gave rise to impact noise at an unacceptable level, in particular taking into account the expectation of luxury flats and the poor stacking arrangements. He found in each case that his objective test readings justified the complaint of noise nuisance. There is much highly technical evidence. There was a debate as to what the relevant test should be, and whether the standard to be met should be that which should apply to new build or that which should apply to conversions, where the requirements are somewhat less stringent. I do not find it necessary to determine this point. It is common ground that neither standard is in fact directly applicable. The results obtained are no more than a broad indication, albeit objectively and scientifically obtained and provide corroborative background to the evidence given by Mr Stannard. They are something in the nature of a yardstick by which to judge acceptability, but I must recognise that the yardstick is a blunt instrument, and this is not a question of a pass or fail question in relation to any given scientific test. The tests themselves can give rise to a variability of results of some 2 decibels or so. Furthermore Dr Latham is in any event at pains to point out even noise that would be perceived to be at a low noise level, and thus not likely to interfere, for example the noise of the w.c. system and macerator, can become a source of disturbance and annoyance, when poor stacking is taken into account. He rightly recognises that flats in urban areas do involve the tolerance of some level of noise but the overall thrust of his first report was that the impact noise and other noise in relation to each of the sets of floors was above the modern standards of acceptability, and inconsistent with the provisions of the lease, resulting in a state of affairs which you would not expect in luxury flats, and ample justification for Mr Stannard's complaints.
18. After the Al Sharekhs had carried out the works to the kitchen and two bathrooms, described below, the jointly instructed expert, Dr Latham, carried out further testing. He has provided a supplementary report dated 13 June 2002, summarising the conclusions of his memorandum dated 10 June. He recorded no significant difference in relation to the marble floor but in relation to the new floor finish types in kitchen, bathroom 1 and bathroom 2 there was some measure of improvement in the case of bathroom 1 and the kitchen. At the time of writing his report Dr Latham was not fully briefed on the nature of the construction, but this has been clarified in the course of the hearing before me in Court. He told me that the construction in fact adopted, although well intentioned, was technically incorrect and misguided. The overall effect of his second report is that there is no significant improvement, save that the impact sound from the vinyl tiles was now found to meet the numerical requirements for new build. He continues to point out that the fact that the vinyl tile surfaces are above noise-sensitive rooms contributes to the noise nuisance experienced and he did not find it surprising that Mr Stannard continues to find that the noise transmission from the new floor areas is still unacceptable. This, he says, is not surprising because with inadequate impact sound insulation elsewhere in the flat in this particular location any impact sound is going to be perceived as a nuisance, even though in the specific location it would otherwise be within generally acceptable standards. He concluded that it would be technically possible to make improvements for all the flooring areas described and also achieve improvements in sound transmission in relation to the wc system and macerator.
19. He also helped the Court with his opinion that the problem could be very substantially alleviated by the specification of technically correct remedial works, involving the laying of an acoustic barrier, to separate those floor coverings, from the structure below and alongside, if their outward appearance is considered desirable, and sought to be retained.

The Defendants' evidence

20. I saw and heard Mrs Al Sharekh. I found her to be a charming and considerate lady and entirely reasonable in the oral evidence that she gave in Court. The impression given was that she was less certain, less emphatic, about the contents of her written witness statement than the strict wording of that statement would suggest. Many of the problems that give rise to the present dispute were, of course, inherited from the Sixth Defendant's predecessors in title. It is clearly not the intention of the Al Sharekhs to cause any disturbance to their neighbours. Indeed, in the summer of 2001 they commissioned flooring works requiring the insertion of an acoustic barrier, so that the new floor would be waterproofed and soundproofed, as is made clear in the written witness statement of Ms Josephine Heng. Whilst in no way constituting an admission of liability on the part of the Sixth Defendant, but to be viewed as a well intentioned act by a good neighbour, it was quite clear that Mr and Mrs Al Sharekh wanted in the areas that were then being dealt with to minimise the transmission of noise, from the structure below and alongside. Most regrettably, although the specification originally provided and priced involved the use of soundproofing boards and primers and perimeter strips, intended to achieve the soundproofing desired, the works in fact executed departed from the specification. Ms Heng has provided a full description of the works together with a sketch plan explaining precisely what works were in fact carried out and how the tiles were applied to the kitchen floor, the master en suite bathroom and bathroom No. 2. Mrs Al Sharekh had informed Ms Heng that she wanted the soundproofing, because there had been complaints from the Claimant. As it turned out, the works done were technically incorrect. They do not isolate the tiles as laid from the structure and there is in fact no acoustic barrier provided. Thus the problem continues unabated. Ms Heng suggested in her written statement that Mr Stannard had visited the property almost daily whilst the works were being executed, but he had not accepted this in crossexamination and said that he had visited only once. It is impossible to resolve this stark conflict of evidence and I have not had the advantage of seeing and hearing Ms Heng. The resolution of this particular conflict of evidence would not affect my overall view as to whether the noise invasion here amounts to an actionable nuisance, nor my assessment of the credibility of Mr Stannard as a witness.

The law

21. Not surprisingly, there is no dispute as to the law in this case. The parties are agreed that the standard well known principles of nuisance apply. There is no absolute standard to apply. The Claimant relies upon the dictum of Lord Westbury in St Helens Smelting v Tipping [1865] 11 HLC 642 at page 650:

"The personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves. Ultimately it is a question of degree whether the interference with comfort or convenience is sufficient to constitute a nuisance."

Counsel for the Sixth Defendant refers me to the approach outlined in the well known leading case of Sedley Denfteld v O'Callaghan [1948] C 880 at page 903 per Lord Wright, where he held that it was impossible to give any precise or universal formula but it may broadly be said that a useful test is perhaps what is reasonable in society or more correctly in a particular society. He also refers me to the equally well known case of Bolton v Stone [1949] 1 All ER 238, 239 which establishes that whether an act does or does not constitute a nuisance has to be determined not merely by an abstract consideration of the act itself but by a reference to all the circumstances of the particular case. Lastly, he refers to Walter v Selfe cited in Clerk & Lindsell to the effect that discomfort must be substantial and not merely by reference to a particular plaintiff - it must be of such a degree that it would be substantial to any person occupying the premises irrespective of his position in life, age or state of health. In the course of argument, I indicated that it seemed to me in relation to age, the fact that teenage children might tolerate some of the noise would not be an indication of the standard to be expected by the leaseholder or adult occupier.

22. In my judgment, the standard of comfort previously enjoyed, and the standards envisaged by the lease which the majority of the tenants hold are significant and important factors in deciding what is reasonable. The comforts previously enjoyed were clearly ones of peace and quiet, with minimal interference by way of impact by noise. The Sixth Defendant sought to suggest that since the lease itself contemplated that in some circumstances one might use a linoleum floor covering and this might itself amount to some unacceptable low level impact noise, then this somehow was a sanction or licence for unacceptable impact noise in other locations. I regard that submission as fallacious for two reasons. Firstly, the Court is to apply modern day standards and should not be regressive. If in fact the use of linoleum, with no acoustic layer below, did give rise to low level impact noise, which became an interference because of poor stacking arrangements, the mere fact that linoleum might be permitted as a floor covering in a kitchen in the lease, would not of itself absolve the nuisance. Secondly, it does not seem to me to be relevant in this case. We are not concerned with linoleum. We are concerned with marble flooring and ceramic tiling. The fact that a similarly unacceptable state of affairs might have been achieved by means superficially contemplated by the lease is no answer, if the state of affairs is otherwise an actionable nuisance.
23. As stated above, it does seem to me that one of the important features of the overall circumstances of this case is the obligation upon the Sixth Defendant under his lease, in relation to minimisation of noise. The fact that the covenant is not enforceable by Mr Stannard is of course unfortunate and I should be careful to avoid equating specific obligations owed under the lease with setting the standard for what would constitute noise nuisance. The lease assigned to Mr Al Sharekh, by clause 3, establishes a covenant in the following terms:

"In accordance with the said general scheme and for the benefit of the lessees of the other flats comprising the building the lessee hereby covenants with the lessor and the company and the lessees for the time being of the other flats comprised in the building and with each of them that the lessee will from time to time and at all times hereafter during the said term: … (c) observe and perform all and singular the reservations and obligations set out in the fourth schedule hereto."

The fourth schedule contains this provision:

"16. To keep the floor of all living rooms bedrooms and entrance halls in the said flat covered with carpet or other suitable materials and the floors of the kitchen bathroom and toilets covered with linoleum or other suitable material so as to minimise the penetration of sound into other flats in the building."

24. Of course I bear in mind that this is not an action for specific performance. It was urged upon me that the words "so as to minimise the penetration of sound into other flats in the building" applied only to the words "other suitable material" mentioned immediately before and were not descriptive of the overall purpose and applicable to all the preceding words. I find such a construction wholly untenable, both as an ordinary reading of the words, where it is quite clear from the positioning of the words in their natural order, that it is describing the overall purpose of the covenant and all its aspects and secondly the alternative construction gives rise to the absurd situation that if you could cover an inappropriately stacked room with linoleum and thereby cause noise nuisance, that would be sanctioned by the lease. I find such a construction cannot have been what the parties contemplated, it would flout ordinary business and common sense and I reject it. Thus, it seems to me that one of the very material circumstances that applies in this case is that all the occupants of the flats in this block can reasonably expect that other lessees will so conduct the arrangements in their own accommodation by way of floor coverings and the like as to minimise the penetration of sound into other flats. Patently that has not been done in this case.

Conclusions

25. I come then to my conclusions. It seems to me that on any objective standard of reasonableness, the penetration by noise from flat 14/14A into flat 14B is unreasonable, unacceptable and constitutes an actionable nuisance. The floor coverings that are present in the accommodation give rise to an unacceptable degree of noise transmission, exacerbated by the poor stacking arrangements. For what it is worth, I find that it would amount to a notional breach of regulation 16 in Schedule 4 to the Sixth

Defendant's lease. I also consider and find that the transmission of noise from the second bathroom is equally unreasonable, unacceptable and constitute an actionable nuisance. I should make it clear that I have not taken into account, in determining that the noise invasion amounts to an actionable nuisance, the fact that, as was candidly accepted, the Sixth Defendant and his family are exceptionally wealthy and could easily afford to carry out remedial works. That factor seems to me to be wholly irrelevant in relation to the question of liability. It might have had some relevance in relation to what relief the Court should grant, because the Court would not wish to impose a result that would cause undue hardship.

26. I should also mention in passing, if only to dismiss it, the fact that the Sixth Defendant again relied on the doctrine of laches in the context of the action which is now for final specific relief. In the first place, it seems to me that this is a matter already dealt with by Master Eyre. He ruled that there would be no injustice in allowing the action against the Sixth Defendant to proceed. He rightly pointed out that one is concerned here with a continuing nuisance and one is not concerned with interim relief. The doctrine of laches has less force in the context of a continuing nuisance, where specific final relief is required. I find that there has been no untoward delay since December of 2000 and the action has proceeded largely in accordance with the directions given by the Court. This is a balancing exercise and I find that in relation to what is essentially a matter for discretionary relief, the Claimant should not be debarred from the relief to which he would otherwise be entitled, because of any degree of delay on his part, or a on the part of, his representatives.
27. I indicated before the end of the hearing in Court that I was minded to grant an injunction, a mandatory injunction requiring necessary and reasonable works to be carried out, in terms that I hoped the parties would be able to agree and, if not, that I would make rulings. I indicated that I had in mind the provision of a specification of works to be carried out at the flat, to be executed to a reasonable timetable, with various options open to the Sixth Defendant at his election, for example whether he is to install and maintain in place properly laid carpet on the relevant floors, with an acoustic underlay, so as to minimise noise, or whether, if he wishes to preserve the present surfaces in the flat, which certainly from the photographs do have an attractive and aesthetic appearance to them, then those surfaces, the present or equivalent floor coverings would have to be relaid with acoustic barriers, as was the Sixth Defendant's intention in the summer of 2001. I also indicated that, again at the Sixth Defendant's election, the jointly instructed expert, Dr Latham, would either be entrusted with the task of preparing the design and specification and supervising the construction, or alternatively policing the execution of the work on behalf of the parties jointly, so as to achieve the minimisation of penetration of sound and ensure compliance with the intention of the injunction. I also indicated that all the works and the costs of the role to be played by Dr Latham would be at the Sixth Defendant's expense and that, subject to any further argument on the part of counsel, the costs of this action would be paid by the Sixth Defendant to the Claimant, with the necessary order for the taxation of the Claimant's costs pursuant to the requirements of the CLS certificate. Obviously, the Court would direct that the parties and either of them would have permission to apply to the Court in the case of any difficulty in implementation of` the injunction, or enforcement or if requiring any further assistance or direction.
28. I will hear counsel as to the precise form of the Order.

John C N Slater QC

Deputy High Court Judge

29 July 2002