'What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.' Thesiger LJ made that comment in 1879 (Sturges v Bridgeman (1879) 11 ChD 852).

It is tempting to say that, in the light of recent House of Lords decisions, tenants in Herne Hill and Kentish Town are now also less likely to have remedies in nuisance.In Southwark LBC v Mills [1999] 3 WLR 939, [1999] 4 All ER 449, HL, secure tenants rented council flats in Herne Hill which had been built in 1919.

They had, by modern standards, inadequate sound insulation.

The tenants complained about noise emanating from adjacent premises.

Their tenancy agreements contained covenants for quiet enjoyment.In Baxter v Camden LBC (taken with the Southwark case), the tenant who lived in a converted house in Kentish Town was disturbed by the sounds of ordinary domestic noise coming from the tenanted flat above.

She brought an action in contract (breach of covenant for quiet enjoyment) and tort (nuisance) against the defendant council which was both her landlord and landlord of the upstairs tenant.

In neither case did the tenancy agreement contain a warranty on the part of the landlord that the flats had sound insulation or were in any way fit to live in.Down to democracyThe tenants' appeals in both cases to the House of Lords were dismissed, but, unlike Thesiger LJ, the Lords examined the law relating to covenants for quiet enjoyment and nuisance in a twentieth century social context.

Lord Millett recognised that noise nuisance was a problem of considerable social importance.

'No one...

would wish to live in the conditions to which the tenants in these appeals are exposed.' However, he noted that local authorities have limited resources and have to decide on their priorities, and that these cases raised issues of priority in the allocation of resources.

The House of Lords concluded that such issues must be resolved by democratic process, national and local.

Judges are not equipped to resolve them.No breach of covenantIt was held that:-- In granting a tenancy, a landlord does not give an implied warranty as to the condition or fitness of the premises.

Caveat lessee.

The position is likely to be different if accommodation is furnished (see Smith v Marrable (1843) 11 M&W 5 where Lady Marrable was troubled by bed bugs in Brighton).-- A covenant to keep in repair imposes an obligation to remedy disrepair.

It obliges a landlord only to restore premises to their previous good condition.

A landlord does not have to make it a better house than it originally was (Lord Hoffmann).-- The covenant for quiet enjoyment is broken if the landlord or someone claiming under the landlord does anything that substantially interferes with the tenant's title to, or possession of, the premises or with his ordinary and lawful enjoyment of the premises.

The interference need not be direct or physical.

(Lords Slynn and Millett).

Excessive noise, in principle, may constitute a substantial interference with the possession or ordinary enjoyment of premises and so can amount to a breach of covenant for quiet enjoyment (Lords Slynn and Hoffmann).-- The covenant for quiet enjoyment is prospective in nature.

It does not apply to things done before the grant of the tenancy, even though they may have continui ng consequences for the tenant (Lords Hoffmann and Millett).

Sampson v Hodson-Pressinger [1981] 3 All ER 710, CA (where a lessee was troubled by the noise of footsteps and conversation on a roof terrace above his living room in Belgravia) was distinguished.

Lord Hoffmann described that case as 'possibly correct on the facts'.No nuisanceIt was held that:-- Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the claimants' land.

The primary defendant is the person who causes the nuisance by doing the acts in question (Lord Hoffmann).-- The normal use of a residential flat cannot be a nuisance to the neighbours (Lords Hoffmann and Millett).-- In addition, a person who authorises nuisance may be liable.

On this basis, landlords may be liable for nuisance by their tenants.

To be liable, they must either participate directly in the commission of the nuisance or they must be taken to have authorised by letting the property (Lord Millett).

However, a landlord cannot be liable in nuisance for conduct which is not a nuisance on the part of the tenant (Lords Slynn, Hoffmann and Millett).-- Parliament has dealt extensively with the problem of substandard housing over many years but had declined to impose an obligation to install soundproofing in existing dwellings.

The courts should not attempt to fill the gap by creating a common law remedy.What's leftTenants may however, not be entirely without remedies.

They may be able to rely upon an express covenant in the tenancy agreement, for example, that the premises are fit for habitation (but the statutory covenant for fitness for habitation contained in the Landlord and tenant Act 1985 s.8 hardly ever applies because of the very low rent limits).

Alternatively, noise transmission may be caused by breach of the normal repairing covenants which are either expressly incorporated into the tenancy agreement or implied by the Landlord and Tenant Act 1985 s.11 (for example, see Guinan v Enfield LBC (1990) June Legal Action 16, Westminster County Court - creaking floorboards).If premises are newly built or recently converted, there may be a cause of action under the Defective Premises Act 1972 s.1 or under the Building Regulations.

Also, if sound insulation work has been carried out but was done negligently, there may be a claim in negligence.

Lack of resources on the part of the defendant landlord is unlikely to be a defence to any of these claims.