[2025] UKUT 361 (LC)

The appellants’ case before the FTT was that there had been a great deal of noise and disruption while the work was going on. The respondents in the FTT agreed that there had been “some disruption”, but could not give direct evidence about it because they had not been present themselves. The FTT said:

“… the Tribunal accepts the evidence from both parties that there was some disruption, including noise and some damage to flat 25, in particular parts of the ceiling. The Respondents admitted that there has been some damage but the scope and value were not agreed between the parties. There also appeared to have been some confrontations between the contractors and the Applicants. It is not for the Tribunal to determine those issues (nor did it have the evidence to do so) only whether there has been a breach.”

As we have seen above, two provisions of the lease are potentially relevant to this complaint. One is paragraph 1 of the Fourth Schedule. The FTT found that it had not been breached, because there was no unreasonable use of the property; internal refurbishment works, the FTT said, are commonplace, and “whilst errors were made, this does not itself cross the threshold to unreasonableness on the part of the Respondents.”

I agree with the FTT that paragraph 1 of the Fourth Schedule is about the use of the property; it is to be used only as a private dwelling and not “for any purpose from which a nuisance can arise to the owner’s lessees or occupiers of the flats comprised in the building”. However disruptive the works were, the property was being used only as a private dwelling, albeit being refurbished as such a dwelling. The covenant is not aimed at disturbance in itself, only at disturbance arising from the way the property is used. I agree with the FTT that this covenant was not broken.

The other relevant covenant is paragraph 3 of the Fourth Schedule, which the FTT said “does not apply”, because it “covers the playing of instruments and the like and its wording or purpose does not extend to routine building works.” I repeat paragraph 3(a) of the Fourth Schedule here for ease of reference:

“3 The Lessee shall not:

(a)

make or suffer to be made any unreasonable noise in the premises by way of piano gramophone instrument vacuum cleaner singing or otherwise at any time whatsoever...” (emphasis added)

The FTT took the view, I think, that the reference to music lessons and vacuuming mean that the words “or otherwise” in paragraph 3(a) have to refer to the same sorts of noise. I disagree. The covenant is not to make “unreasonable noise”, by way of the activities listed “or otherwise”, and it would be very strange if unreasonable piano playing was a breach of covenant but unreasonable noise from builders was not. If the respondents by themselves or their workmen caused “unreasonable noise” then they were in breach of that covenant.

But in order to find that the respondents were in breach of that covenant the FTT would have had to make findings of fact about what happened and the level of noise, and then to decide whether in the circumstances to decide whether that level of noise was unreasonable. The FTT did not make any findings of fact about the noise and disturbance, and said that the evidence was such that it could not do so. I understand that to be a finding that the evidence of the appellants – who of course had the burden of proof - was not sufficient to enable the FTT to prefer their evidence about the level of disturbance to that of the respondents. Ms Allen spoke eloquently at the appeal hearing about what she went through while the renovations were going on, but it is not possible to adduce fresh evidence in the appeal, nor for this Tribunal to make findings of fact.

Accordingly whilst I disagree with the FTT’s view of the meaning of the covenant in paragraph 3 of the Fourth Schedule, the FTT’s decision on this point stands and this ground of appeal fails.