NAZIRALI SHARIF TEJANI v FITZROY PLACE RESIDENTIAL LIMITED & Anor.

A private nuisance requires an interference that materially affects the ordinary comfort of the average person occupying the claimant’s premises. The assessment is objective and takes account of the character of the locality. Intermittent façade noises which are generally quiet, rarely occur at night and would not ordinarily awaken a sleeping person do not meet that threshold.

Under a contractual defect-remedy provision requiring the developer to take reasonable steps to procure remedial works, the obligation is conditional upon written notice being given by the buyer within the specified period. The provision does not impose an absolute obligation to remedy defects.

The claimant purchased an apartment in a central London development from the first defendant, which later granted him a long lease. The second defendant was the developer. The claimant complained of intermittent clicking, popping and creaking noises from the apartment façade.

He claimed that the noise constituted a private nuisance and breached the first defendant’s covenant for quiet enjoyment. He also claimed damages from the second defendant under an agreement requiring reasonable steps to procure the remedy of defects in the works, subject to written notice within 23 months of the certificate date.

The court determined whether the noise materially interfered with ordinary residential comfort and whether the contractual notice and remedial-work conditions had been satisfied.

1. Private nuisance. The claim was dismissed. The applicable test was whether the noise materially interfered with the ordinary comfort of the average person living in the apartment, assessed objectively and taking account of the character of the neighbourhood. The locality was of limited significance because the complaint concerned a distinct façade noise rather than ordinary environmental noise.
2. The acoustic evidence showed that the noise was principally a brief click or tick, generally at low levels, with significantly reduced occurrence at night. The evidence did not establish that it would awaken an average person, still less frequently. Most events would be masked by ordinary television or music. The noise therefore did not materially interfere with ordinary comfort and was not an actionable nuisance. The suggestion that the apartment was uninhabitable or unusable was untenable.
3. The covenant of quiet enjoyment required no separate determination because the claimant accepted that his case under the covenant stood or fell with the nuisance claim.
4. Contractual defect claim. Clause 5.6 imposed no obligation on the first defendant. As against the second defendant, it required reasonable steps to procure the remedy of qualifying defects, rather than imposing an absolute obligation to remedy them.
5. The requirement that the buyer give written notice of the defect within 23 months of the certificate date was a condition of the developer’s obligation. The 2016 complaint about footsteps and general sounds did not identify the façade noise. The 2017 email from the building manager to the claimant was not written notice from the buyer to the developer. The contractual notice was therefore not given in time, and clause 5.16 removed further liability under clause 5.
6. Alternatively, the second defendant had taken reasonable steps to procure investigation and remedial works as soon as reasonably practicable. Delays were materially explained by the difficulty of identifying the source, the complexity of the works, access problems and pandemic restrictions.
7. The claims were dismissed. Consequential issues, including costs, were reserved for further hearing.