DGHP tenant’s damages claim over property’s poor sound insulation dismissed
A Dumfries and Galloway Housing Partnership (DGHP) tenant who sued his landlord over its alleged failure to properly sound-proof his property has had his action dismissed.
Stephen Reay sought damages from the housing association after claiming to have suffered “stress and family disruption” because his rented flat in Stranraer had “inadequate sound insulation”, but a sheriff ruled that the landlord was not in breach of any obligations to its tenant.
Dumfries Sheriff Court heard that the pursuer lived at 102 Mount Vernon Road in Stranraer, a two-bedroom property owned by the defenders, together with his wife from 2003 until July 2015.
The 1930s property, which was of a “Garden City” style commonly then used by local authorities engaged in the widespread construction of housing for rent, was an upper flat forming part of a four-in-a-block unit within a development of former council houses in Stranraer.
The flats were separated by a timber joisted floor with tongue and groove flooring above and a lath and plaster ceiling below.
The property was constructed using ash deafening laid on top of deafening boards under the floorboards as a form of sound insulation between the dwellings.
Ash deafening, the residue left by coal burning from steam locomotives and factories, was easily available in the 1930s and was a light material in the shape of small stones which was poured into the floor space between flatted properties, typically laid to a depth of 70mm.
Sheriff Brian Mohan was told that in July 2009 the pursuer complained to the defenders of “excessive noise” and other behaviour by his neighbours immediately downstairs in 100 Mount Vernon Road, following which the landlord asked the pursuer’s neighbours to moderate their behaviour.
The pursuer made further complaints to the defenders regarding his neighbours’ behaviour in early 2010, but following further communication with the neighbouring tenants, the defenders considered that the complaint had been resolved.
In February 2011 the pursuer made further complaints to the defenders regarding his downstairs neighbours, but the landlord considered that the noise identified was “domestic noise” from a family with young children and “not excessive”, although they did give certain advice to the neighbours to minimise the noise levels.
But the pursuer maintained that the sound problem was “inherent” in the property and complaints about “anti-social noise disturbance” coming from his downstairs neighbour continued, but when officers from DGHP visited the pursuer he behaved in a “threatening and intimidating manner” towards them.
The downstairs neighbour also made a counter-complaint about the pursuer’s manner towards her, following which she decided to vacate her tenancy in December 2013, to be replaced by another tenant.
In 2014 the pursuer sought assistance from his local councillor on Dumfries and Galloway Council (DGC), as a result of which sound insulation testing of the pursuer’s home at 102 Mount Vernon Road took place.
The sound insulation for the property fell below the standards set by building regulations in place at the time the testing was carried out.
The primary reason for the sound insulation for the property being at the levels identified was the type and form of the building’s design and construction.
‘Contractual and statutory obligation’
The pursuer’s case was that, once the difficulties which he had experienced were brought to the attention of the defenders, this triggered an “obligation” under both the relevant statute and the tenancy agreement to take “corrective action”.
The lease, which was a standard Scottish secure tenancy agreement, established duties on a landlord to keep the house “habitable, wind and water tight and in all other respects reasonably fit for human habitation”.
The pursuer’s case, therefore, was that once he had brought to the defenders’ notice the difficulties which the poor sound insulation was causing, they had to resolve this “defect” in the property.
In so doing, the defenders were under both a contractual and statutory obligation to take account of the up to date building regulations.
However, the Building (Scotland) Regulations 2005 and 2011 applied only to properties built or converted after the regulations came into force.
The defenders were not required by statute to meet the technical standards contained in the regulations in relation to standards of sound insulation for the property at 102 Mount Vernon Road, Stranraer.
The sheriff, therefore, found that the defenders were not in breach of the obligations owed to the pursuer as their tenant under Schedule 4 of the Housing (Scotland) Act 2001, nor were they in breach of their tenancy agreement with the pursuer in relation to the levels of sound insulation within the property.
In a written judgment, Sheriff Mohan said: “The fundamental questions I have had to decide in this case were (1) whether the report by the pursuer of his specific difficulties with noise from his neighbours amounted to notification of a ‘defect’, (2) whether the defenders consequently required to take action which included the type of remedial soundproofing described above, and (3) whether the defenders’ failure to take such steps while the pursuer was their tenant entitled him to an award of damages.
“My conclusion from the evidence was that the levels of sound insulation in 102 Mount Vernon Road could not be regarded as such a defect. The pursuer lived in the property for six years (from 2003 until July 2009) without any complaint about noise.
“From July 2009 until 2013 his complaints were about the excessive noise and behaviour of a particular neighbour downstairs… It was in October 2013 that the pursuer made the more specific complaint about the general levels of soundproofing in the building. This sparked the investigations and sound testing.
“While all the experts agreed that readings of 47 dB were ‘poor, this assessment was only in comparison to modern homes. As I have already noted, all those experts agreed that there was no obligation for older housing stock to be brought up to such levels of soundproofing.
“Accordingly, my conclusion is that the defenders were not in breach of their contractual or statutory obligations towards the pursuer. His action must therefore fail.”