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19 June 2018

Noise nuisance and unlawful alterations

Background

The Claimant, 31/32 Ennismore Gardens Freehold Limited, owned a building split into flats in Knightsbridge, London. The Defendant was a long leaseholder of one of the flats in the building. BDB acted for the Claimant.

The Claimant’s case

The Claimant’s case was that the Defendant had made extensive alterations throughout the flat in breach of the covenants contained in the lease and in breach of a licence for alterations. The alterations complained of included the installation of new flooring and the removal of carpeting. As a result of the alterations the Claimant said that vibration and noise nuisance had been caused to the flat below the Defendant’s flat. The Claimant sought an injunction for reinstatement of all the alterations and for appropriate sound deadening measures.

The Defendant’s case

The Defendant defended the case on the basis of a denial of breach of covenant in the lease and also alleged that an agreement had been reached directly between the parties to allow the Defendant to carry on with the alterations the effect of which was to waive enforcement of the covenants in the lease. It was also alleged by the Defendant that if there had been a breach of covenant then damages would be an adequate remedy and should be awarded in lieu of an injunction.

The court proceedings

During the course of the court proceedings the Claimant made specific disclosure applications to court in order to force the Defendant to disclose documents relevant to the case. Those applications were successful and as it transpired the documents disclosed proved useful to the Claimant being able to prove its case. Expert evidence was also given by both a building surveyor and an acoustic surveyor. The acoustic surveyor was used to measure the levels of the alleged noise nuisance.

The trial

The case was determined at a one week trial where there was extensive cross-examination of factual witnesses and expert witnesses, as well as legal argument on the interpretation of the lease covenants. The Claimant was successful in proving breach of covenant and the court also determined that there was no waiver or estoppel by the Claimant on the factual evidence.

Furthermore the Claimant was able to rely upon the case of Doherty v Allman (1878) 3 App Cas to obtain an injunction for breach of covenant. The Claimant was also able to rely in this regard on the cases of John Trenberth Limited v National Westminster Bank (1979) 39 p and CR Hunt 104 and Patel v WH Smith (Eziot) Limited and another [1987] 1WLR853.

The injunction

There was a further hearing to determine the precise form that the injunction should take and specifically which of the unlawful alterations needed to be removed and what works of reinstatement were required. After a fully contested hearing, an order was made by the court providing for a detailed schedule of reinstatement works to be carried out by the Defendant at the Defendant’s cost with specific monitoring provisions to allow the Claimant’s experts access to the Defendant’s flat to ensure that the work was carried out properly.

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