London Borough of Southwark v Long

A contractual obligation to take reasonable steps cannot be discharged merely by appointing contractors. The landlord must operate an adequate system for monitoring their performance. What is reasonable depends on the circumstances, including cost-effectiveness, but limited public resources do not excuse failure to meet basic standards of cleanliness.

An obligation to keep existing refuse facilities in repair and proper working order does not generally require the landlord to install, relocate or redesign them where they remain mechanically operational. The covenant for quiet enjoyment is prospective and is not a warranty of fitness or adequacy. Private nuisance may require reasonable steps to abate an interference, with the cost of those steps relevant.

The respondent, a secure tenant of the appellants, succeeded before the Central London County Court in a claim concerning inadequate refuse facilities, noise, smells and rubbish around her flat. The judge awarded £13,500 for breach of the tenancy agreement and ordered remedial work. He also found breaches of the covenant for quiet enjoyment and nuisance.

The landlord appealed, challenging findings concerning the duty to take reasonable steps, the obligation to keep refuse facilities in proper working order, quiet enjoyment and nuisance. The central issues were the scope of the contractual obligations and the appropriate treatment of the alternative claims.

1. Condition 18(4). The appeal failed on the finding that the landlord had not taken reasonable steps to keep the common parts clean and tidy. Delegating maintenance to contractors was insufficient without an adequate system for monitoring their performance. The evidence supported the conclusion that the contractors were not carrying out the required cleaning and maintenance and that the landlord had received notice of the continuing problems.
2. The landlord’s notices to tenants about permitted hours did not necessarily exhaust its duty. The reference in condition 24(4) to inspections at least every six months did not limit the obligation under condition 18(4). What constituted reasonable steps depended on the facts. The public-housing context was relevant, but there was no implicit qualification excusing compliance with basic standards of cleanliness. Cost-effectiveness could, however, be considered when assessing whether a particular step was reasonable.
3. The conclusion that particular steps were reasonable was a mixed question of fact and law. An appellate court could review whether the trial judge had considered the proper factors and applied the law correctly, although it would normally respect primary findings of fact.
4. Condition 22. The obligation to keep the refuse collection facilities in repair and proper working order concerned the existing physical facilities. It did not require installation of new facilities, relocation of the refuse area or modification of the system merely because changing circumstances made it inadequate. The facilities remained capable of operating, and the evidence did not establish the kind of failure that destroyed their workable character. The finding of breach under condition 22 therefore could not stand.
5. Quiet enjoyment. The judge had wrongly distinguished Southwark LBC v Mills. The covenant was prospective and did not operate as a warranty that premises or communal facilities were fit or adequate. Design defects existing when the tenancy was granted did not breach the covenant. The noise from tenants’ use of the hoppers was not shown to have involved a use outside the parties’ contemplation in 1983, and the remaining complaints did not establish the landlord’s breach of the covenant.
6. Nuisance. Private nuisance involves wrongful interference with the use of land. Once nuisance emanating from the defendant’s property and notice are shown, the defendant must show that reasonable steps cannot abate it. The cost of abatement is relevant. Since there was no respondent’s notice and the judge had not finally ruled on nuisance, the Court did not grant relief under that head.
7. The appeal was dismissed. The damages award stood because the breach of condition 18(4) remained established. The liberty to apply was varied so that it was without limit of time and confined to an application concerning further breach of condition 18(4) or the nuisance claim.

• Court of Appeal (Civil Division): dismissed the appeal from the order of His Honour Judge Goldstein in the Central London County Court dated 12 April 2001. The damages award stood, subject to a variation of the liberty to apply.