Octavia Hill Housing Trust v Brumby

An occupier may be liable for a nuisance created by trespassers where, knowing or having presumed knowledge of it, the occupier has sufficient time and fails to take reasonable steps to end it. Liability does not require a positive act adopting or encouraging the nuisance. Whether the steps were reasonable is ordinarily fact-sensitive and suitable for trial. The landlord-tenant rule that a landlord is not liable for a tenant’s nuisance without authorisation does not prevent a claim concerning nuisance emanating from land retained and occupied by the landlord. Such liability is tortious and independent of any contractual relationship or implied warranty.

The claimant, an assured tenant, alleged that visitors to another flat caused anti-social behaviour in the communal entrance, hallways, staircases and an external trench. She alleged that the appellant, which owned and occupied those areas, knew of the nuisance and failed to take reasonable steps to abate it.

The Lambeth County Court struck out the claim for breach of the covenant of quiet enjoyment but refused to strike out the nuisance claim or give summary judgment. The appellant appealed, contending that passive inaction could not make a landlord liable for nuisance created by trespassers.

1. Appeal dismissed. The nuisance claim was sufficiently arguable and was permitted to proceed.
2. The governing principle was stated in Sedleigh-Denfield v O’Callaghan [1940] AC 880. An occupier continues a nuisance created by others where, with knowledge or presumed knowledge of its existence, the occupier has ample time but fails to take reasonable means to bring it to an end. The principle applies although liability for nuisance is not strict or absolute.
3. The claim was acutely fact-sensitive. The claimant alleged that the appellant owned and occupied the relevant land, knew of the activities through repeated complaints, and could have taken measures such as restricting access to the trench. Whether those measures were reasonable was for the trial judge after hearing the evidence.
4. Positive encouragement or adoption was unnecessary. The reasoning in Hilton v James Smith [1979] 2 EGLR 44 supported the possibility that standing by, while retaining control and knowledge of an obstruction, could amount to continuing the nuisance.
5. The landlord-tenant authorities, including Smith v Scott [1973] Ch 314 and Hussain v Lancaster City Council [2000] 1 QB 1, concerned a landlord’s liability for nuisance permitted by a tenant. They did not shut out a claim based on nuisance emanating from land owned and occupied by the landlord. The claim did not contravene the principle in Southwark LBC v Tanner (No 2) [2001] 1 AC 1, because the alleged liability arose independently in tort and did not depend on importing an implied contractual warranty.
6. Costs followed the event. The respondent’s indemnity-costs claim was refused; costs, if not agreed, were to be assessed on the standard basis.

1. High Court (Queen’s Bench Division): Appeal from the Lambeth County Court dismissed. The refusal to strike out the nuisance claim and refusal of summary judgment were upheld.