Landlord not liable for noise nuisance of speedway tenant

When will a landlord be liable for its tenant's nuisance. The Supreme Court decided a landlord was not liable as it had neither authorised nor participated in the nuisance.

Original news

Coventry and others v Lawrence and another (No 2) [2014] UKSC 46, [2014] All ER (D) 226 (Jul)

This judgment covered a number of points arising from the Supreme Court's earlier decision in Coventry v Lawrence [2014] UKSC 13, [2014] 2 All ER 622, in which it decided the occupiers of a stadium and a track were liable in nuisance to the owners and occupiers of a residential bungalow, Fenland, 850 yards away. The nuisance arose from the use of the stadium for speedway racing and other motorcar racing and the use of the track for motorcycle racing and similar activities.

The owners of Fenland brought their proceedings not only against the occupiers of the stadium and track, but also against the occupiers' current landlord and a predecessor landlord. The effect of the Supreme Court's decision was to reverse the Court of Appeal's decision and restore the trial judge's order, which was based on his finding that the occupiers of the stadium and track, but not the landlords, were liable in nuisance. The trial judge's decision had been upheld by the Court of Appeal on the ground that there was no nuisance and so no consideration was given to whether the judge's reasons for rejecting the claims against the landlords were justified.

However, now that the Supreme Court had held that the occupiers of the stadium and track were liable in nuisance, the question arose whether the judge was right in holding that their landlords were nonetheless not liable.

By the time of the trial, Fenland was unoccupied due to a fire and is still fire-damaged today.

What were the issues involved?

The order made by the trial judge included:

  • an injunction against the occupiers limiting the noise which could be emitted from the stadium and the track to take effect on 1 January 2012 or, if earlier, when Fenland was again fit for occupation
  • permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011
  • a provision dismissing the claims against the landlords
  • a direction that the occupiers of the stadium and track pay 60% of Fenland's owners' costs

The effect of the Supreme Court's earlier decision was to restore the orders for an injunction and for damages, as well as the order for costs.

Four further issues now arose:
  •  Should the injunction be suspended until Fenland was rebuilt?
  • When should the parties be able to apply to the judge to vary the terms of the injunction?
  • Were the landlords also liable to the appellants in nuisance?
  • Did the order for costs against the occupiers of the stadium and track infringe the European Convention on Human Rights, art 6 (ECHR), which protects the right to a fair hearing?

What did the Supreme Court decide on the main issue of the landlord's liability for nuisance?

The Supreme Court (Lord Carnwath and Lord Mance dissenting) decided the claim in nuisance against the landlords was dismissed as the landlords had neither authorised nor participated in the nuisance.

The law

The court confirmed the law relating to the liability of a landlord for his tenant's nuisance was 'tolerably clear' in terms of principle. In order to be liable for authorising a nuisance, the landlords must either:

  • have authorised it by letting the property, or
  • participate directly in the commission of the nuisance

Authorisation by letting the property?

Here, there could be no question of the landlords having authorised the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting of the stadium and the track. The intended uses were known to the landlords at the time of the lettings and those uses had in fact resulted in nuisance, but that was not enough to render them liable in nuisance as a result of the letting. It was clear that those uses could be, and could have been, carried on without causing a nuisance to the owners of Fenland.

Participation

If the claim in nuisance against the landlords was to succeed, it had to be based on their 'active' or 'direct' participation. There was little authority on the issue. Whether a landlord has directly participated in a nuisance was largely one of fact for the trial judge, rather than of law.

Here, the Supreme Court was in difficulty as the trial judge had made no, or limited, findings on the issue as the landlord had not raised a defence on this basis. In other circumstances, the Supreme Court acknowledged it might be appropriate to remit the matter for further findings on the issue. However, this was not sought by any of the parties, for understandable reasons, given the exorbitant expenditure of time and money already incurred.

The court confirmed the issue of whether a landlord directly participated in his tenant's nuisance must turn principally on what happened subsequent to the grant of the leases, although that may take colour from the nature and circumstances of the grant and what preceded it.

It decided that none of the factors relied on by the owners of Fenland established that the landlords authorised or participated in the nuisance. These were that Mr Waters, one of the landlords:

  • did nothing as landlord to try to persuade his tenant to reduce the noise
  • erected a hay-bale wall around Fenland to discourage complaints and to keep down the noise
  • co-ordinated all dealings with the local authority on noise issues, leading for the occupiers of the stadium and track in discussions
  • appealed against the noise abatement notice served by the local authority in respect of the noise emanating from the stadium and the track
  • co-ordinated the response to the complaints of the owners of Fenland about the noise and often responded himself

On the first point, the Supreme Court confirmed the fact a landlord does nothing to stop or discourage a tenant from causing a nuisance cannot amount to 'participating' in the nuisance. As a matter of principle, even if a person has the power to prevent the nuisance, inaction or failure to act cannot, on its own, amount to authorising the nuisance.

The second point was also of very limited force. Absent very unusual circumstances, the fact a landlord takes steps to mitigate a nuisance could scarcely give rise to the inference that he had authorised it. Constructing the wall on land adjacent to Fenland could fairly be regarded as a somewhat aggressive act, but that did not amount to participation in the nuisance.

The last three points were are all based on Mr Waters' leading part in fighting off the risk of nuisance abatement by the local authority and claims in common law. Even taken together, they did not mean that Mr Waters participated in the nuisance. Any landlord, whose premises were being lawfully used for motor car and motorbike racing, would naturally wish to avoid or minimise any restriction on the emission of noise from the premises--whether by the local authority or by the court. Any such restriction would very likely adversely affect the value of his reversionary interest, as it would risk curtailing the racing activities on the premises, and therefore the commercial attraction of the premises. That, in turn, could depreciate the capital and rental values of the premises. On that ground alone, it was hard to accept that, by trying to fight off allegations of nuisance against his tenants, a landlord can be said to be participating or authorising the nuisance.

Specifically:

  • Mr Waters' position as a local councillor could fairly justify much, though not all, of his involvement. It could not explain everything he said at meetings in support of the local authority taking no steps to curtail the activities at the stadium or track. However, the fact a landlord seeks to persuade a local authority not to take action in relation to alleged noise or other nuisance emanating from his tenant's activities does not involve his authorising or participating in the nuisance caused by those activities. The fact that he joins with his tenant, even taking the lead, in making representations to the local authority could not of itself undermine this analysis. The most it could do was reinforce other factors supporting the contention that he has authorised or participated in the nuisance.
  • the fact Mr Waters was a party to the appeal against the abatement notice was not a powerful point. If he had been served with the notice, he was perfectly entitled to appeal against it. Even if he was not bound to appeal against it, indeed even if he was not served with it, a landlord may well wish to ensure that his reversionary interest in the property concerned is not damaged by such a notice
  • the fact Mr Waters was primarily responsible for replying to the complaints made by the solicitors for the owners of Fenland was, again, explicable by reference to his interest as landlord in not having the use of the premises impeded. Also, as he had much of the relevant information available to him as a councillor, and as a result of his discussions with the local authority, it was unsurprising that the detailed responses came from him

The points showed that Mr Waters went further than most landlords would have done, but they did not (even together) make good the contention that he authorised or participated in the nuisance.

Dissenting judgments

Lord Carnwath commented that 'participation' was not a term of art, nor a precise definition. What was required was:

'a broad, common-sense judgment, based on the facts as a whole, as to whether there was such active involvement by the landlord in the offending activities as to make him jointly responsible in law for their consequences'.

Here, the issue of participation should be judged against the background history which showed a close involvement by Mr Waters, and later his son, in the activities of the stadium and the track dating back to their inception. Although the precise legal basis of their involvement had varied over the years, their central role in the enterprise had not.

The facts clearly showed that the involvement of Mr Waters and his son had gone far beyond the ordinary role of a landlord protecting and enforcing his interests under a lease. It had involved active encouragement of the tenants' use and direct participation in the measures and negotiations to enable it to be continued. The fact these measures were directed in part to mitigating the problem did not alter the fact of participation nor the consequences for the landlord when the measures proved ineffective. They may have been motivated, at least in part, by their concurrent interests as freeholders, or even, in Mr Waters' case, as local councillor--however, the issue was not why they participated, but whether they did and with what effect.

Lord Mance observed that it appeared to have been the trial judge who, effectively of his own motion, raised at a very late stage a possible distinction between the liability of the occupiers of the stadium and track and their landlords for any nuisance. He misread one of the leases and overlooked the principle that a landlord who 'participates' in a nuisance may be liable, irrespective of the terms of the lease.

He also confirmed it was significant to the issue of liability, that the landlords were prepared to recognise their liability along with other defendants for any nuisance which existed (while denying that it extended to liability for exemplary or aggravated damages).

What did the Supreme Court decide in relation to the injunction and costs?

The Supreme Court decided the injunction imposed by the trial judge against the occupiers of the stadium and track should be suspended until Fenland was fit to be occupied, subject to any party having liberty to apply at any time to vary or discharge the injunction.

Consideration of the contention that the judge's order for costs infringed the rights of the occupiers of the stadium and track under ECHR, art 6 was adjourned for a further hearing after notice had been given to the Attorney-General and the Secretary of State for Justice.

Read more about these implications on the LexisNexis Dispute Resolution blog.

What are the lessons for lawyers?

The case largely turns on its facts, but is useful in setting out the legal principles relating to a landlord's liability for its nuisance.

Some - in view of the dissenting judgments - may say the landlord was lucky not to have been found liable.

Filed Under: Property

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