If smells, noise or greasy leaks from commercial property used as restaurants or cafes cause a nuisance, who will be responsible?
In a recent case of HLS Leisure Limited v Darville and Son Limited [2025] EWHC 1884 (Ch), this issue had to be considered by the courts.
Background
The freehold of the mixed use building known as Darville House in Berkshire is held by Darville and Son Limited (“Darville and Son”) and one of the tenants is the Gourmet Grill. Gourmet Grill were not party to the proceedings, which were issued by HLS Leisure Limited (“HLS”), another tenant within Darville House. HLS run a business at Darville House known as Pinks Gentlemen’s Club (“Pinks”).
As part of ongoing proceedings between Darville and Son and HLS, HLS brought a claim against Darville and Son in respect of nuisance.
The nuisance claim of unacceptable noise and leaking grease related to a ventilation ducting extract system from the Gourmet Grill’s kitchen. The grease from the ventilation duct leaked into the loading bay. Pinks were concerned about these issues and the impact on their staff and customers.
HLS had entered into a lease originally back in 2001 and more recently in 2017 for a term of 10 years. Under the term of that lease, the loading bay was a common part of Darville House, and so within the landlord’s responsibility.
Gourmet Grill’s lease was for 20 years in October 2016. The court concluded that Gourmet Grill had installed the ventilation ducting, which went outside their demise shown on the lease plan to the loading bay.
The court was therefore asked to rule on whether the issues complained of amounted to a nuisance and if so, whether the landlord was liable for the nuisance.
Decisions
The courts at first instance and on appeal found that there was a nuisance caused by the leaking grease and noise emanating from the ventilation ducting.
The court then had to decide who was responsible for creating the nuisance. In order to do so, the court considered the wording of the Gourmet Grill’s lease, and particularly the extent of the demise. The demise included the Ground Floor and Basement, and “fixtures of every kind that are from time to time in or on that land” except “any fixtures installed by the Tenant that can be removed from the land without defacing it”.
The court concluded that the ventilation ducting was a fixture as defined in the lease of Gourmet Grill, and as such, would fall within the demise of Gourmet Grill. Darville and Son, the landlord, was therefore not liable for the nuisance and HLS failed in their nuisance claim against their landlord.
Points to Note
In this case, whilst there was a genuine claim in nuisance, it was brought against the wrong party, so care needs to be taken when considering who a claim should be issued against. In some situations, it could be both landlord and tenant.
Cases of this kind turn on the wording of the lease. Care must be taken when drafting lease terms, but also when considering the existing terms if issues arise, especially if the dispute relates to fixtures, which can be challenging to determine.
Landlords should consider the use of the property being let and how best to protect themselves to ensure that the tenant complies with the covenants.
Tenants, when altering the property for the purpose of their business, need to consider if consent is required from the landlord, whether it will create a nuisance and how those alterations may be interpreted if a dispute arises.
If you are a commercial landlord or tenant and require assistance in interpreting your lease terms or are concerned about breaches of lease, please contact us on 0345 646 0406 and a member of our team will be in touch.