Court considers landlord's liability for tenant's nuisance (Supreme Court)

Court considers landlord's liability for tenant's nuisance (Supreme Court) On 23 July 2014, the Supreme Court considered further issues arising out of its February 2014 private nuisance judgment in Coventry and others v Lawrence and another [2014] UKSC 13.

In relation to the private nuisance claim, the main question was whether the landlords of the motocross stadium and track site were liable for the nuisance of the tenants. On the facts, the majority of the court said that:

  • At the time of the letting, the nuisance was not an inevitable, or nearly certain, consequence of the letting.
  • The landlord had not participated actively or directly in the nuisance.

Therefore, the landlord was not liable for the tenants' nuisance.

The court also considered whether the order for costs against the respondents (the stadium and track operators) in the February 2014 judgment infringed the European Convention on Human Rights (ECHR). Unusually, the court adjourned the appeal to allow the government to address the court, saying that, if there had been a breach, this would have serious consequences for the government. (Coventry and others (Respondents) v Lawrence and another (Appellants) (No 2) [2014] UKSC 46.)

Background: Supreme Court decision on nuisance in Coventry v Lawrence

In February 2014, the Supreme Court gave its judgment in Coventry and others v Lawrence and another [2014] UKSC 13 on the principles of private nuisance.

The case related to a noise nuisance caused by the motocross and speedway stadium and track operated by Mr Coventry and others (the respondents). The Supreme Court held that the stadium and track operators were liable in private nuisance to Ms Lawrence and Mr Shields (the appellants), who lived near the stadium in a bungalow that has subsequently burnt down.

The Supreme Court concluded that:

  • It is possible to acquire a right to commit what would otherwise be a noise nuisance by prescription (over 20 years).
  • It is not generally a defence to a claim in nuisance to show that the claimant "came to the nuisance" by acquiring or moving into their property after the nuisance had started. However, in some circumstances, it may be a defence that it is only because the claimant has changed the use of their land that the defendant's pre-existing activity is claimed to have become a nuisance.
  • A defendant can rely on its activities as constituting part of the character of the locality, but only to the extent that those activities do not constitute a nuisance.
  • It is wrong in principle that the grant of planning permission should deprive a property owner of a right to object to what would otherwise be a nuisance, without providing compensation. However, there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case.
  • The existence of a planning permission that expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance can be a factor in favour of a court refusing an injunction and compensating the claimant in damages.

The Supreme Court restored the following elements of the High Court's order:

  • An injunction against the respondents limiting the levels of noise that could be emitted from the stadium and track.
  • Damages against the respondents.
  • A direction that the respondents pay 60% of the appellants’ costs, to be subject to detailed assessment.

Decision

On 23 July 2014, the Supreme Court gave its decision in Coventry and others v Lawrence and another (No. 2) [2014] UKSC 46.

The questions for the Supreme Court were:

  • Should the injunction be suspended until the bungalow is rebuilt, following the fire? The court said this was a minor issue. It decided that there was no reason not to suspend the injunction until the bungalow was rebuilt. The purpose of the injunction was to protect the enjoyment of the bungalow, but if it could not be occupied, there was no justification for it. The injunction would cause damage to the respondents with no benefit to the appellants. The court therefore suspended the injunction until the bungalow was fit for residential occupation.
  • When would the parties be able to apply to vary the terms of the injunction? (The High Court had given permission to the parties “to apply to vary the terms of this injunction not earlier than 1 October 2011”.) The court said this was also a minor issue and that the parties should be able to apply to vary the injunction at any time.
  • Are the landlords of the stadium and track site also liable to the appellants in nuisance? (The High Court had dismissed the original claim against the landlords.)
  • Does the order for costs against the respondents infringe the European Convention on Human Rights (ECHR)? The respondents argued that the order that they pay 60% of the appellants' costs, including a success fee and the after the event (ATE) insurance premium, infringed their Article 6 rights under the ECHR. Article 6 protects the right to a fair and public hearing. Unusually, the Supreme Court adjourned the appeal to allow the government to address the court, saying that, if there had been a breach, this would have serious consequences for the government.

Nuisance claim against the landlords

The Supreme Court considered to what extent the landlords should be liable for nuisance caused by their tenants, the respondents.

The High Court had initially dismissed the nuisance claim against the landlords, on the basis that a key source text on tort, Clerk & Lindsell on Torts, 20th edition, indicated that landlords are not liable for nuisance created by their tenants, unless the nuisance was close to inevitable as a result of the letting. The Court of Appeal had upheld that decision, on the basis that there was no nuisance, so it did not need to consider the landlords' liability.

However, now that the Supreme Court had decided that there was a nuisance, the question of whether the landlords were liable was re-opened.

The Supreme Court considered the following key points.

At the time of the letting, was the nuisance an inevitable, or nearly certain, consequence of the letting?

The court said that:

  • The fact that the landlord knew what the intended use was and that the use did in fact result in nuisance was not enough to make the landlord liable as a result of the letting. The stadium and track could have been used for these uses without a nuisance arising.
  • However, if the nuisance had been inevitable, tenant covenants against nuisance in the lease would not have affected whether or not the landlord was liable.

Had the landlord participated "actively" or "directly" in the nuisance?

The High Court had not considered this question. It was therefore difficult for the Supreme Court to consider it because it was a question of fact for the trial court rather than a question of law.

Nevertheless, the court considered what had happened after the grant of the lease. The majority said that, in this case, the following steps by the landlord did not amount to the landlord participating in the nuisance:

  • Doing nothing to stop or discourage a tenant from causing a nuisance.
  • Trying to mitigate the nuisance.
  • Taking a leading role in defending the nuisance claims.

The court therefore dismissed the claim in nuisance against the landlords.

Comment

The court applied established principles in deciding whether the landlord was liable for nuisance. It is interesting to note that two of the judges dissented from the leading judgment and considered on the facts that the landlord had participated in the tenant’s nuisance.

However, the key issue in the case was the question of whether the pre-April 2013 costs regime was in breach of Article 6 of the ECHR. If this was the case, litigants who had been "victims" of those provisions might have a claim for compensation against the government for infringement of their Article 6 rights.


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