Hard flooring noise nuisance/Enforcement of tenancy agreements and leases

Kensington and Chelsea TMO did not have the information requested.

Dear Sir or Madam,

Would you please tell me

- how many complaints the TMO has received about noise nuisance relating to the removal of carpeting or the laying of floor tiles, wood or laminate flooring;

- how many times the TMO has enforced the reinstatement of carpeting or removal of floor tiles, wood or laminate flooring by tenants/leaseholders;

- how many complaints the TMO has received about its failure to enforce tenancy agreement/lease requirements relating to carpeting, floor tiles, wood or laminate flooring.

I would appreciate it if you could provide these figures electronically.

Yours faithfully,

V. BLAIR

Kensington and Chelsea TMO

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Dear Sir or Madam,

I have not received a response from Kensington and Chelsea TMO following my request for information.
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Yours faithfully,

A.V. Blair

Kensington and Chelsea TMO

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Dear Sir or Madam,

I have not received a response from Kensington and Chelsea TMO
following my request for information.
http://www.whatdotheyknow.com/request/ha...

Under the Freedom of Information Act you should have replied by no
later than 16 April 2009 so you are in breach of the law.

In addition to restating my original request for information I am
now additionally asking for an internal review of my request.

Yours faithfully,

A.V. Blair

Kensington and Chelsea TMO

This is an automatic email from Kensington & Chelsea TMO.

Thank you for contacting the TMO.

Your email has been forwarded to the TMO's Customer Service Centre who
will contact you within five working days.

If we fail to contact you within this time, please contact Customer
Services Team Leader: call freephone 0800 137 111 and ask for Lillian
Lanek.

Dulce De Oliveira, Kensington and Chelsea TMO

Dear Sir / Madam

Thank you and I acknowledge your email which I have recently received
via our Customer Services Reporting Repairs Team. Our Customer Services
Team Leaders have offered their sincere apologies for not forwarding
your email on when received, this was an error on their part and was in
no way intentional.
We do not hold statistics on your requested information, however if
required I can give you the number of complaints received in relation to
noise nuisance and tenancy issues in general for the last financial
year.

Awaiting your response

Thank you

Mrs Dulce De Oliveira Watts
Kensington and Chelsea TMO
Customer Relations Officer
4th Floor
Charles House
375 Kensington High Street
London
W14 8QH

Tel: 020 7605 6400
Fax: 020 7605 6327

TMO website: www.kctmo.org.uk

show quoted sections

Dear Mrs De Oliveira Watts,

If you could send me the information you do have relating to complaints about tenancy issues and noise nuisance I will have a look.

Yours sincerely,

A.V. Blair

Dulce De Oliveira, Kensington and Chelsea TMO

Dear Sir / Madam

In response to your further email below our Customer Relations records
show that in the last financial year 01 April 2008 to 31 March 2009 we
received 60 complaints in relation to Anti Social Behaviour in
general(we do not hold statistics specifically regarding noise nuisance
complaints) and 29 complaints in relation to Tenancy related issues.

Thank you

Mrs Dulce De Oliveira Watts
Kensington and Chelsea TMO
Customer Relations Officer
4th Floor
Charles House
375 Kensington High Street
London
W14 8QH

Tel: 020 7605 6400
Fax: 020 7605 6327

TMO website: www.kctmo.org.uk

show quoted sections

Stuart left an annotation ()

This is not true as each complaint has to have a record number and category for the environmental health people.

Liz R (Account suspended) left an annotation ()

There is no law protecting anyone in public housing from this type of noise nusicance that most of us now suffer if we are not living on a top floor, it's sad as neighbours are generally kind but have no idea how much can be heard below. I can hear my neighbours all the time and have to use earplugs and ear-defenders in order to finction, sadly with unhelpful landlords and a councilthat doesn;t care, we have no recourse to justice, let me know if you want o start a class/group action as this problem is widespeard - here is some law from Scotland:
he Development and Production of a
guide for noise Control from Laminate and Wooden
FlooringChapter 4: Current UK Legislation and Case Law4.1 INTRODUCTIONRather than simply give a narrative description of the
common law of nuisance (which can be found in a variety of
textbooks
1) it is intended to concentrate on that part of the law
which is particularly pertinent to the issue of noise from
hard timber floor surfaces.4.2 THE COMMON LAW OF NUISANCEThe law recognises that a proprietor has the right to
the free and absolute use of his property, but only to the
extent that such use does not discomfit or annoy his
neighbour. In other words, the law recognises one's right
to enjoy one's land by imposing a reciprocal duty on one's
neighbour not to interfere with such enjoyment.
2 The law of nuisance is, therefore, concerned with
striking a fair balance between the competing rights of
proprietors of land, each of whom has the right to enjoy
that land. This conflict is pragmatically resolved by the
courts imposing reciprocal duty on a proprietor of land not
to use his or her land in such an unreasonable way that the
pursuer's enjoyment of his land is prejudiced. The law was
succinctly summarised by Lord President Cooper in
Watt v Jamieson
3 where he stated:'The balance in all such cases has to be held between
the freedom of a proprietor to use his property as he
pleases and the duty on a proprietor not to inflict
material loss or inconvenience on adjoining property; and
in every case the answer depends on considerations of fact
and degree…..The critical question is whether what he is exposed to
was
plus quam tolerabile when due weight has been
given to all surrounding circumstances of the offensive
conduct and its effects. If that is satisfied, I do not
consider that our law accepts as a defence that the nature
of the user complained of was usual, familiar and normal.
Any type of use which in the sense indicated above subjects
adjoining proprietors to substantial annoyance or causes
material damage, is
prima facie not a reasonable use.'The
Watt decision also emphasises that whether any
given state of affairs constitutes a nuisance is a question
of both fact and degree.The relevance of
Stannard v Charles Pitcher Ltd [2003] Env LR
10 and
Baxter v Camden LBC [2000] Env LR
112.In
Stannard (S) the claimant was the tenant of an
apartment. The owners of the flat, which was situated above
the claimant, carried out alterations to that apartment.
The alterations included the removal of floor carpets and
the replacement of such carpets with hard surfaces, such as
marble and ceramic tile floors. The upshot of this was that
the noise which permeated S's premises, increased
substantially. S claimed that the noise in question
amounted to a nuisance in law. At first instance it was
held that a nuisance existed. The following points are
particular relevance in the decision.Firstly, it was held that in ascertaining if the noise
constituted a nuisance one should employ an objective test,
that is to say, whether the adverse state of affairs would
have affected a reasonable individual. One should not take
into account the claimant's social class, age or state of
health.Secondly, in determining whether the relevant state of
affairs constituted a nuisance one should take into account
the standards envisaged by the lease which the majority of
the tenants hold in the various flats in the block in
question.In
Baxter the claimant (B) lived in a block of
council-owned flats. The insulation between the flats in
question was inadequate. The upshot of this was that the
various residents of the flats could hear so-called
'everyday noises' which each other made. The House of Lords
held that the noise in question comprised noise which
emanated from the 'normal' use of the premises in question,
and, therefore, did not constitute a nuisance. Before an
adverse state of affairs could constitute a nuisance in law
it had to unreasonably interfere with the utility of the
claimant's land. This was not so in the instant case. The
noise in question was the inevitable consequence of the
ordinary occupation of residential property.As far as
Stannard is concerned this is a first instance
decision. It is my view that Mr J Slater QC (who was
sitting as Deputy judge of the High Court) erred in holding
that in determining if noise from the flats in question
ranked as a nuisance one should take into account the terms
and conditions of the relevant lease. There was, indeed, no
authority by way of decided cases on this point. Of further
interest is the fact that the judge made no reference to
Baxter in his decision. One could have argued,
with no little justification, that the noise from the hard
surface flooring was simply everyday or ordinary noise
which people make in their own homes. It is suggested that
Stannard is not authority for the proposition that
noise from such flooring will always rank as a nuisance in
law. Rather, whether such noise does rank as a nuisance
should simply be determined by utilising the various
factors which have been indicated earlier in the report.
Stannard, of course, is not binding on the
Scottish courts. The outcome of any case would, of course,
depend on its own particular facts. In the last analysis,
the court would have to ascertain if the noise in question
was
plus quam tolerabile (more than reasonably
tolerable) which would be a question of degree.The relevance of Pettigrew v Inverclyde Council
1999 hous LR 31. This sheriff court case concerned
an action by P who was a tenant of the defender which was
local authority. P claimed that her house was inadequately
insulated the upshot of which was that she could hear noise
made by her fellow tenants. (The summary of the report
contains no details of the noise which P was exposed to but
it would seem to have been 'ordinary everyday noise') It
was held that if the noise in question did rank as a
nuisance in law the nuisance in question could rank as a
statutory nuisance in terms of s82 of the Environmental
Protection Act 1990. Furthermore, the poor sound insulation
was capable of ranking as a structural defect in terms of
s82(4)(b) of the Act.Pettigrew does not take the law forward in any
way, it is suggested rather, it follows
Southwark LBC v Ince in which it was held that in
determining if a nuisance existed in relation to premises
one could take external factors into account. Furthermore,
the case does not derogate from the general principle that
it is a matter of fact and degree whether a given state of
affairs can rank as a nuisance in law.4.3 ELEMENTS OF THE LAW OF NUISANCEIt is important to emphasise that it is only
unreasonable conduct which is capable of being categorised
as a nuisance in law. In order to ascertain whether any
given conduct is unreasonable the law has focussed on the
relevant conduct from the viewpoint of the pursuer.
4The social utility or usefulness of the defender's
conduct is taken into account. The more socially useful the
conduct the less likely will it be regarded as a nuisance.
While, in theory, this element is of general application in
the law of nuisance, it has featured more commonly in the
context of industrial nuisances where the courts have
explicitly recognised the social benefits which accrue from
factories.
5This factor is of little relevance to noise from
laminated floors, etc.4.4 MOTIVE OF THE DEFENDERIf the relevant state of affairs is generated simply to
punish the pursuer, in other words, if the state of affairs
is motivated by spite, the courts lean heavily towards the
view that the state of affairs is a nuisance in law.
6This factor is of little relevance in the present
context.4.5 LOCALITYThis no relevance in the present context.4.6 DURATION AND INTENSITYEssentially, the length of time that a state of affairs
exists as well as its intensity are taken into account.
7 Noise from laminated flooring, etc is more likely to
be louder and therefore a nuisance than noise from floors
which are carpeted.4.7 TIME OF DAYThe courts are more inclined to regard noise a nuisance
which takes place during the night than noise which exists
solely during the day.
8Since noise from floors would take place at all times
this factor would have some relevance.4.8 COULD THE NUISANCE HAVE BEEN AVOIDED BY THE
PURSUER?The question here is to what extent, if any, the court
can take account of whether the pursuer could have avoided
the state of affairs which gave rise to the action. For
example, is the occupier of a flat which is affected by
noise under any obligation to provide sound insulation to
the flat? On the authority of
Webster v Lord Advocate
9 there is no such obligation.4.9 IS THE STATE OF AFFAIRS TYPICAL OF MODERN
LIFE?The case of
Hunter v Canary Wharf Ltd
10 is authority for the proposition that if the
state of affairs which is complained of is typical of
modern life it is less likely to be characterised as a
nuisance. It is possible, therefore, that a court which is
considering a noise nuisance which emanates from laminated
flooring could be less inclined to hold that the state of
affairs ranks as a nuisance on the basis that such a form
of flooring is now quite common.4.10 LIABILITY IN NUISANCE-WHO MAY BE
SUED?The author of the nuisanceThe person who creates the noise nuisance (ie the author
of the nuisance) is liable in law. He need have no interest
in the land concerned.
11 It is therefore, possible to argue that the builder,
joiner, etc who installs the relevant laminate flooring,
etc. could be categorised as the author of the noise
nuisance.The occupierThe occupier of the relevant land is normally liable for
any nuisances which emanate from the land.
12 The occupier of the flat in which there is laminate
flooring the upshot of which is that neighbours suffer from
noise pollution, would, therefore, be liable.The landlordA landlord is liable for nuisances which emanate from
the premises only if the relevant nuisance is the ordinary
and necessary consequence of the lease.
13 If the relevant adverse state of affairs is created by
the landlord prior to the property being leased the
landlord is solely liable for the manifestation of the
nuisance during the currency of the lease.
144.11 LIABILITY UNDER THE ENVIRONMENTAL
PROTECTION ACT 1990Under s79(1)(a) of the above Act:'any premises in such a state as to be prejudicial to
health or a nuisance ranks as a statutory nuisance. 'The subsection, in effect, comprises two quite separate
limbs, namely one limb comprising premises which are,
'prejudicial to health' and the other comprising premises
which rank as a nuisance.'Prejudice to health'That which renders the premises prejudicial to health
need not emanate from the premises in question. It can
arise from outside the relevant premises.
15 Therefore, it is possible that external noise
generated (say) by laminated flooring which affects the
flat below could rank as a statutory nuisance by virtue of
harming the health of residents of the flat. However, in
Oakley v Birmingham City Council
16 it was held that the risk to human health had to
derive from some source of possible infection or disease or
illness such as dampness, mould, dirt or evil-smelling
accumulations or the presence of rats.
Oakley would, therefore, be authority for the
proposition that noise caused by laminated flooring and
which pervades the flat below would not be deemed
prejudicial to health within the scope of the
paragraph.'Nuisance' limbIf the state of affairs causes discomfort in the
residents below, this would rank as a statutory nuisance.
It is not necessary that the adverse state of affairs (the
noise) should impact on human health in order to rank as a
nuisance. Rather, it is suffices that the noise simply
causes discomfort.
17Under s79(1) (g) 'noise emitted from premises so as to
be prejudicial to health or a nuisance (ranks as a
statutory nuisance).Noise
18 which is emitted from premises by way of laminate
flooring would, therefore, fall within the scope of the
paragraph. There is no requirement that scientific evidence
is presented to the court.
19 The courts give the expression, 'noise' as used in the
statute its ordinary common law meaning.
20 In other words, when a court has to determine if a
given state of affairs constitutes a nuisance in terms of
the statute, it takes account the same factors as those
which are discussed above. However, in
Robb v Dundee City Council
21 it was held that the expression, 'nuisance' as
used in s79(1)(a) was different to that at common law.
While nuisance bears a different meaning to that at common
law the degree of invasion which is required under either
head is similar.It is not necessary that a particular noise level be
exceeded before a nuisance can be said to exist.
22. To what extent, if any, this decision influences the
interpretation of the expression, 'noise' as used in para.
(1)(g) can only be resolved by case law.4.12 THE EFFECT OF THE HUMAN RIGHTS ACT 1998 ON
THE ENVIRONMENTAL PROTECTION ACT 1990Under s 3 of the Human Rights Act 1998 (HRA) legislation
must be read and given effect in a way which is compatible
with the Convention rights. To what extent, if any, will
the HRA impact on the way in which s79(1) of the
Environmental Protection Act 1990 is interpreted? Thus far
no United Kingdom court has held that the HRA 1998 imbues
the EPA with a different dimension. For example, in
Robb v Dundee City Council
23 where the Inner House held that the word,
'nuisance' bore a different meaning to that at common law,
it was open to the court to hold that in light of the
Convention, a less onerous threshold was applicable.
However, it declined to do so. Again, as far as the
expression,' prejudicial to health' was concerned it was
open for the court to hold that a more subjective approach,
and, therefore, one more sympathetic to the well-being of
specific individuals was appropriate. Again, it declined to
do so. The point was not argued.Human Rights Law -The significance of Art 8 of
the ECHROne specific issue which the researchers were asked to
look at was the issue of whether there would be an
infringement of Art. 8 (which guarantees the right to
respect for private and family life) if a local authority
or, indeed, a private landlord, refused, by way of a
provision in a lease, to allow residents of a local
authority house to lay a laminate floor in a situation
where such flooring was necessary to protect the health of
a resident (for example, a child) because of allergies
caused by mites etc in carpets. There is no authority on
this point. The law relating to human rights and the
suppression of pollution is in an incipient state of
development. It is our view that there would be no
infringement in such a scenario on the grounds that the
courts have not, thus far, accorded protection to such a
form of invasion of personal integrity.Culpa or blameAn interesting and, indeed, fundamental issue is whether
the concept of
culpa or blame, which requires to be proved in
order to ground liability in the law of delict, is relevant
as far as liability as far as statutory nuisance is
concerned. In
Robb it was held that
culpa had no relevance as far as s79(1)(a) was
concerned. It would be strange if
culpa had no relevance to s79(1)(a) but of
relevance to s79(1)(g). It is suggested, therefore, that
culpa has no relevance to s79(1)(g). As far as
noise from laminated flooring there would be no need to
prove fault on the part of the relevant occupier of the
premises.4.13 EU LEGISLATIONThere is no relevant law. The principle of subsidiarity
would militate against the EU legislating here.4.14 ANTISOCIAL BEHAVIOUR ETC (SCOTLAND) ACT
2004As far as the above Act is concerned the provisions
relating to noise are adoptive, that is to say, that they
apply to the area of a local authority only if the
authority has so resolved. (s41(1)). The gist of the Act is
that an officer of a local authority (normally an
environmental health officer) is empowered to serve a
warning notice in relation to noise which exceeds the
permitted level and is being emitted from the relevant
property (an expression which includes any accommodation-
s53(1))-s43(3). Under s45(1) an offence is committed by any
person who is responsible for the noise which exceeds the
relevant permitted level. It is possible that noise from
laminated flooring could, in certain circumstances, exceed
the permitted level. The expression, 'person responsible'
is not defined in the Act. This is likely to give rise to
case law in the future. In the absence of authority the
expression, 'person responsible' would cover the occupier
of the premises. It may also cover a landlord or even
contractor etc who has commissioned/installed the
flooring.'4.15 NOISE ACT 1996 (AS AMENDED BY THE
ANTI-SOCIAL BEHAVIOUR ACT 2003)The Act makes analogous provisions to the Anti-social
Behaviour (Scotland) Act 2004 in relation to noise from
dwellings during night hours, that is to say, noise which
takes place between 11PM and 7AM. The relevant warning
notice may be served on the 'person responsible' for the
noise. The expression, 'person responsible for noise' which
is emitted from a dwelling is the person to whose act,
default or sufferance the emission of the noise is wholly
or partly attributable-s3(5). Noise from dwellings which is
caused by laminated flooring could possibly fall within the
scope of the Act. If it does the installer of the flooring,
and possibly the landlord could be held liable.4.16 NORTHERN IRELANDAs far as the common law of Northern Ireland is
concerned the case law previously referred to would be
applicable in that jurisdiction.As far as statutory law is concerned relevant
legislation is Part III of the Pollution Control and Local
Government (Northern Ireland) Order 1978. Under art
38(1)-(2) if a district council is satisfied that a noise
amounting to a nuisance exists or is likely to occur or
recur in its area a council must serve a notice on the
person responsible. If that person cannot be found, or the
nuisance has yet to occur, the notice may be served on the
owner or occupier of the premises from which the noise is
being or would be emitted. A notice which is issued under
art 38(1) may impose any or all of the following
requirements.(a) the abatement of the nuisance or prohibiting or
restricting its occurrence or recurrence;(b) the execution of such works, and the taking of such
other steps, as may be necessary for the purpose of the
notice or as may be specified in the notice.The notice must also specify the time within which the
relevant remedial action must be taken.Under Art 38(4) the contravention of a notice without
reasonable excuse constitutes an offence.Under art 39 of the Order a court of summary
jurisdiction can act on a complaint by the occupier of any
premises affected by noise nuisance. The court can make an
order for either or both of the following:(i) requiring the defendant to abate the nuisance within
a time which is specified in the order and to execute any
works which are necessary for that purpose;(ii) prohibiting the recurrence of the nuisance and
requiring the defendant within a time which is specified in
the order to execute any works necessary in order to
prevent a recurrence.Under art 39(5) anyone who contravenes any part of the
order commits an offence. The defence of best practicable
means applies in relation to noise from business premises.
Proceedings may be brought against the author of the
nuisance or, if he cannot be found, against the owner or
occupier of the premises from which the noise is being or
would be emitted. After a person has been convicted of an
offence the court may direct the local authority to do
anything which the court had ordered the relevant author to
do.Footnotes1 Noise and Noise Law. A practical approach. Adams MS,
McManus F. John Wiley Chancery (1994)2
Fleming v Hislop (1882) 10 R 4263 1954 SC 56 at 584 Ibid5
Bellew v Cement Ltd [1948] IR 61.6
Christie v Davey [1893] 1 Ch 316.7
Bamford v Turnley (1862) 31 LJQB 286.8 Ibid9 1984 SLT 13 at 15.10 [1997] 2 WLR 68411
Slater v McLellan 1924 SC 854.12
Sedleigh-Denfield v O'Callaghan [1940] AC 880.13
Tetley v Chitty [1986] 1 AllER 202.14
Metropolitan Properties Ltd v Jones [1939] 2 AllER
202.15
Southwark LBC v Ince (1981) 21 HLR 50416 [2001] 1 AllER 38517
Robb v Dundee City Council 2002 SLT 853.18 The expression 'noise' includes vibration.
S79(7).19
Westminster City Council v McDonald20
A Lambert Flat Management Ltd v Lomas [1981] 2
AllER 28021 2002 SLT 853.22
Godfrey v Conwy County BC [2001] Env LR 674.23 ibid

amza tamazine left an annotation ()

I am wondering shouldn't Enviromental health and TMO carryout an inspection under the HHSRS Health and safety rating system? noise from suspended wooden flooring can cause pyschological hazard. Would anyone know???

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