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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from The Lambeth County Court
Claim number 8LB04213

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2010

The Honourable Mr Justice Mackay:

1. This is an appeal against an order of HHJ Gibson who heard applications by the defendant/appellant to strike this claim out, under CPR 3.4.2 as disclosing no reasonable grounds and/or for summary judgment under CPR 24.2(a) as enjoying no real prospects of success. Apart from striking out the claim for breach of covenant of quiet enjoyment he dismissed both applications.
2. It is important to note that what the claim is for. The correctness of the factual assertions in the particulars of claim must be assumed for the purposes of this appeal.
3. The claimant lives in a block of flats at Sawyer Street London SE1, her flat offering a single bedroom on the lower ground floor, and she is an assured tenant. Entry to the flats is on the ground floor, above the claimant's level, through a single communal door giving way to a communal hall and stairwell. In the same block in flat 14 on the top floor lived at the relevant times a Ms Walker.
4. Immediately outside the window of the reception room in the claimant's flat is a paved area some three feet wide which runs to a ledge some two feet high and three feet wide extending across the width of the claimant's flat. This area was referred to at the hearing as "the trench". There is no gate or fence impeding access to the trench.
5. The claimant says that over a period of nearly four years she suffered from the "failure of the defendant to prevent a nuisance to the claimant's premises emanating from land which the defendant owned and in respect of which the defendant has possession. The said nuisance was the activity of the visitors to Ms Walker's flat". The acts of nuisance are said to have emanated from an area owned by the defendant and over which it retained possession namely the external entrance area, the communal hallway and staircases and "the trench". There then follow eleven particulars of nuisance all alleging different types of anti-social behaviour by visitors to Ms Walker's flat in the external entrance area, the trench, and the communal areas of the block which are said to amount to a nuisance. The claimant says she made her concerns about these activities known to the defendant and that the defendant failed to take any reasonable steps to abate them.
6. In his judgment the Judge noted that activities within flat 14, Ms Walker's flat, were no longer relied on (as they had been in the particulars of claim as originally drafted) but found that this was merely a claim based on allegations of nuisance against defendant as the owner and occupier of the land in the three areas I have mentioned, which emanated from the actions of others as trespassers and were "continued or adopted" by the defendant in the sense that it had knowledge of the existence of the nuisance-creating behaviour but failed to take reasonable means to bring it to an end.
7. The claimant's case is that this claim falls squarely in the principles of the familiar House of Lords authority of Sedleigh-Denfield v O'Callaghan [1940] AC 880. This applies in cases where a person in possession of land can become liable for the continuation of a nuisance originally created by others. Viscount Maughan said at 894

"The statement that an occupier of land is liable for the continuance of nuisance created by others e.g. by trespassers if he continues or adopts it – which seems to be agreed – throws little light on the matter, unless the words "continues or adopts" are defined. In my opinion an occupier of land "continues" a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so".

8. Lord Atkin put the matter this way at 897

"It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is if he knows that it is operating offensively, is able to prevent it and omits to prevent it he is permitting the nuisance to continue; in other words he is continuing it."

9. This case therefore is authority for the proposition that though liability for nuisance is not strict or absolute, and as a matter of first principle an occupier is not responsible for a nuisance created without his knowledge in consent, if he falls within those dicta, and others in the case to like effect, he will be liable because he continues or adopts the nuisance, or as Lord Wright put it at 905 he -

"….did not without undue delay remedy it when he became aware of it or with ordinary or reasonable care should have become aware of it".

10. The claimant's case is put simply therefore this way. This defendant was both owner and occupier of the approach and entrance to the flats, the common parts within and the trench. The claimant alleges that she made frequent complaints about the activities of the trespassers and puts forward certain steps that could, she says, reasonably have been taken to abate the nuisance such as for example barring access to the trench by some physical barrier or gate. Whether these propositions are indeed reasonable would be for the trial judge to determine having heard all the evidence. But the cornerstone of Mr Loveland's argument is that the key to the defendant's liability is its occupation of the land from which the nuisance emanated. That is because the very nature of the tort of nuisance is that it is founded on the use of land in such a way as to diminish the enjoyment of another land owner. It also explains, he says, why it has been held, as is common ground between the parties, in numerous cases that where land is let by a landlord to a tenant the landlord is not liable for acts of nuisance permitted by his tenant unless he has specifically authorised them. See for example Smith v Scott [1973] Ch 314 at 321 to 322. As the Vice-Chancellor said in that case -

"This 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".

That is not the case in this claim. The claimant is not complaining of the actions of the tenant within the land demised to her under her lease but rather of those who are trespassers over land owned and occupied by the defendant.

11. For the defendant Miss Bretherton argues that the only circumstances in which landlords have been held liable for the nuisance of their tenants which can be found in the decided cases are exceptional. In Chartered Trust v Davies [1997] 2 EGLR 83 it seems the special circumstances were the contractual representations made about the quality of the other tenants to whom the development would be let. Other exceptions are where the landlord has done something of a positive nature to adopt the nuisance, as for example in Page Motors v Epsom and Ewell BC [1982] JPL 572 where the landlord deliberately allowed the gypsies' unlawful possession to continue for policy reasons, so in effect adopting their trespass and Lippiat v South Gloucestershire Council [2000] QB 51, another gypsy case, where the council went further and did not merely tolerate the unauthorised presence of the gipsies' but provided toilets, water and other facilities for them.
12. These cases seem to me to be no more than an application of the principle in Sedleigh-Denfield of landlords taking over or continuing the nuisance on the facts in each case, much as the defendant in Sedleigh-Denfield itself had by continuing to use the pipe installed by the trespassers.
13. Miss Bretherton's argument turns on the assertion that for there to be a cause of action here there must be something more than the mere existence of anti-social behaviour on the defendant's land, and that a mere failure to abate the nuisance is not in itself enough. In this case the defendants did nothing positively to encourage or adopt what the trespassers were doing but at worst merely failed to take active steps to make physical alterations to the dwelling house by fencing off the trench, installing an entry phone, installing a locked mail box and the like. She argues that there is no reported example in the cases of such a failure as this leading to the conclusion that the land owner was responsible for the acts of trespassers.
14. Mr Loveland says one example is the case of Hilton v James Smith [1979] 2 EGLR 44, a Court of Appeal decision, where there was liability attaching to a landlord who did no more than do nothing to prevent the other tenants in the row of shops and/or trespassers blocking the private roadway over which all the tenants enjoyed a right of way in such a way as to deprive the claimant whose shop was the last in the row, of all access. In so far as, in the past at least, trespassers had caused this problem that was, the court held, fairly easily obviated by placing at the entrance a hinged post which could be locked in position. But on a perusal of the facts of the case, that the landlord was guilty of no more than mere passive inaction was clear, and yet it was fixed with liability. As Ormrod LJ said

"There comes a stage when standing by and not doing anything about the obstruction over which the occupier has complete control and of which he is full aware it would be possible to say that he himself was obstructing. But I do not think that we need go that far. All that we need say is that on the facts here found to be proved by the learned judge the plaintiffs bring themselves fairly and squarely within the terms of the dicta which I cited from Sedleigh-Denfield".

15. In Mowan v Wandsworth LBC [2001] 33 HLR 56 Sir Christopher Staughton, who had been involved in the case of Lippiatt, noted that after Sedleigh – Denfield there was a "strong trend in the cases in favour of the landlord who was not an occupier" citing among other cases Smith v Scott and Hussain v Lancaster City Council [2000] 1 QB 1, but he continued -

"There are other cases where the landlords have been occupiers of the land on which or from which the nuisance was created by others. Into that class come Hilton… Page Motors Ltd… Chartered Trust… and Lippiatt. And in Sedleigh – Denfield's case the respondents were owners and occupiers. For good or ill, those are a different class of case."

Mr Loveland argues that this is because of the very nature of the tort of nuisance dependant as it is on the use of land rather than the actions or the persons responsible for them which cause the nuisance.

16. In an application of this nature, proceeding as it does on assumed facts, the question of whether the claimant has a real prospect of succeeding at trial in proving that this defendant, as owner and occupier of the parcels of land from which the acts of nuisance came, ought to be found to have continued or adopted those acts by failing to take reasonable steps to prevent or abate them is an acutely fact sensitive issue and will depend on the view the judge takes of the evidence he hears. But I am satisfied that the liability in tort of the defendant can, given a favourable view of that evidence, be established and the claim is not shut out by the category of case exemplified by Smith v Scott and Hussain v Lancaster City Council. Nor does this claim offend against the principle clearly set out by the House of Lords in Southwark LBC v Tanner(No 2) [2001] 1 AC 1, which prohibits intervention in the landlord and tenant relationship by importing implied warranties not found in the contractual relationship or not imposed by statute. The liability in tort that is sought to be argued here is owed independently of contractual arrangements and depends upon the use and enjoyment of land. For the reasons I have given I believe this claim ought to be allowed to proceed and I would uphold the decision of the judge below and dismiss this appeal.
17. By agreement the parties have made written submissions on costs, having seen this judgment in draft. There is no dispute that the costs should follow the event and therefore the successful Respondent should have its costs. Its claim for indemnity costs is without merit in my view. This was a properly arguable point, which may yet interest the Court of Appeal, but which at this level secured permission to appeal from a High Court Judge and required serious consideration. Nothing in the pre-appeal history alters my view, which is that these costs should if not agreed be assessed on the standard basis.