Siveter v London Borough of Wandsworth

In assessing a landlord’s contractual and common-law obligations after removal of a pigeon nest, the reasonable area for inspection and de-infestation includes an adjoining cupboard where poultry mites may harbour and migrate into the dwelling. If the cupboard is inaccessible, appropriate advice should be given for prompt treatment. Known mite behaviour and an unusual route into the dwelling are matters of foreseeability, not hindsight. On appeal, the court is not confined to the Wednesbury threshold where the first-instance judge has failed to grapple with unanimous, uncontradicted evidence on a material issue. The appellate court may decide the issue itself and substitute the conclusion required by that evidence.

Ms Siveter brought a claim against her landlord, the London Borough of Wandsworth, alleging breach of tenancy obligations and negligence. She claimed that poultry mites from a pigeon nest outside her flat entered an adjoining store cupboard and then migrated into the flat after the Council’s contractors removed the nest and treated only the immediate external area.

His Honour Judge Mitchell held that the Council’s response was not unreasonable and dismissed the claim. The appeal concerned whether the judge had treated the known behaviour of poultry mites as hindsight and had failed to address uncontradicted expert evidence that the cupboard should have been inspected and treated.

1. Disposition. The appeal was allowed and the claim succeeded. Lord Justice Longmore delivered the leading judgment, and Lord Justice Aikens agreed.
2. Appellate approach. This was not a Wednesbury case. The Court of Appeal was not limited to intervening only where no reasonable judge could have reached the first-instance conclusion. The judge had failed to address the unanimous evidence that the store cupboard should have been inspected and de-infested. The judgment therefore could not stand, and the appellate court was entitled to determine whether the claim should succeed.
3. Foreseeability. The uncontradicted evidence established that poultry mites remain mainly in dark locations, that the store cupboard was precisely such a location, and that removal of their host would cause them to migrate in search of nourishment. Their presence in the cupboard and migration into the flat were foreseeable, if not inevitable. Treating that evidence as hindsight was erroneous.
4. Reasonable precautions. Where a pigeon nest is situated on a cupboard adjoining a dwelling, the relevant area for treatment includes the cupboard itself. If the cupboard is open, it should be de-infested at that stage. If it is inaccessible, advice should be given that de-infestation is required in the near future. Treating only the external area was insufficient on the evidence.
5. The speculative possibility that the mites remained at the original nest site until after the contractors left could not justify the first-instance conclusion, particularly as the contractors gave no evidence of what they had done. The Council was in breach of its contractual and common-law obligations in relation to the tenancy.

1. Court of Appeal (Civil Division) — In [2012] EWCA Civ 351, the appeal was allowed and the claim succeeded.
2. Central London Civil Justice Centre — His Honour Judge Mitchell held that the Council’s response was not unreasonable and dismissed the claim.