An Application by D.L. Richardson for Judicial Review, v A Closing Order Made by the London Borough Ealing Under Section 17 of the Housing Act, 1957
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE O'CONNOR,LORD JUSTICE KERR |
| Judgment Date | 28 June 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0628-3 |
| Docket Number | 82/0397 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 1982 |
[1982] EWCA Civ J0628-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM MR. JUSTICE McNEILL
Royal Courts of Justice.
The Lord Chief Justice of England
(Lord Lane)
Lord Justice O'Connor
Lord Justice Kerr
82/0397
MR ANTHONY SCRIVENER, Q.C., and MR GEOFFREY STEPHENSON, instructed by Messrs Alastair Thomson & Partners, appeared for the Appellant (Applicant).
THE HON. DOUGLAS HOGG, instructed by N.L. Green Esq., Borough Solicitor, Ealing, appeared for the Respondent.
This is an appeal from a decision of Mr. Justice McNeill on the 7th April 1981 by which he refused the appellant's application for an order of certiorari to quash a closing order which had been made by the London Borough of Ealing in respect of premises in Chiswick, 11 Carlton Road. The order had been made on Wednesday, 27th September, 1978. The facts which lay behind the application were these. The appellant was at all material times the monthly tenant of the premises at a rent of £35 per month, that is to say, £420 per annum. He had been dissatisfied about the state of the premises. On a date in or about April 1978 he made a complaint to the local authority about the state of the premises, as he was entitled to, no doubt in the hope that the local authority, under their powers under section 9(1)(a) of the Housing Act of 1957, would cause repairs to be made. However, it so happened that that was not the way that things turned out. Officers of the local authority, in the shape particularly of a Mrs. Bleach and a Mr. Dean, inspected the premises on more than one occasion and instead of making the order which the appellant wanted they came to the conclusion that the premises were unfit for human habitation, that they were not capable of being rendered fit for human habitation at a reasonable cost and they reported accordingly to the Housing Committee of the local authority.
The local authority under the statutory provisions to which reference will have to be made in a moment which regulated their activities, were empowered either to make a demolition order or a closing order. There was n o question of a demolition order because this is either a semi-detached or end of terrace house and were the premises to be demolished that would expose the adjoining house to risk. A closing order was made on 27th September 1978.
The provisions under which action was taken are all found in the Housing Act of 1957 and it is necessary, to cite those at some length. Section 16(1) reads as follows: "Where a local authority, on consideration of an official representation, or a report from any of their officers, or other information in their possession, are satisfied that any house (a) is unfit for human habitation, and (b) is not capable at reasonable expense of being rendered so fit, they shall serve upon the person having control of the house, upon any other person who is an owner thereof, and, so far as is reasonably practicable to ascertain such persons, upon every mortgagee thereof, notice of the time (being some time not less than 21 days after the service of the notice) and place at which the condition of the house and any offer with respect to the carrying out of works, or the future user of the house, which he may wish to submit will be considered by them.
"(2) Every person upon whom such a notice is served under sub-section (1) of this section shall be entitled to be heard when the matter is so taken into consideration.
"(3) A person upon whom such a notice is served under sub-section (1) of this section shall, if he intends to submit an offer with respect to the carrying out of works, (a) within 21 days from the date of the service of the notice upon him, serve upon the authority notice in writing of his intention to make such an offer, and (b) within such a reasonable period as the authority may allow, submit to them a list of the works which he offers to carry out.
"(4) The local authority may if, after consultation with the owner or mortgagee, they think fit so to do, accept an undertaking from him, either that he will within a specified period carry out such works as will in the opinion of the authority render the house fit for human habitation, or that it shall not be used for human habitation until the authority, on being satisfied that it has been rendered fit for that purpose, cancel the undertaking."
The only other relevant sub-section is sub-section (5) which reads: "Nothing in the Rent Acts shall prevent possession being obtained of any premises by any owner thereof in a case where an undertaking has been given under this section that those premises shall not be used for human habitation."
I turn now to section 17. Sub-section (1) reads as follows: "If no such undertaking as is mentioned in the last foregoing section is accepted by the local authority, or if, in a case where they have accepted such an undertaking, (a) any work to which the undertaking relates is not carried out within the specified period, or (b) the premises are at any time used in contravention of the terms of the undertaking, then subject to the provisions of this section, the local authority shall forthwith make a demolition order for the demolition of the premises to which the notice given under the last foregoing section relates: provided that if in the case of any house the local authority consider it inexpedient to make a demolition order having regard to the effect of the demolition of that house upon any other house or building then they make a closing order as respects that house instead of a demolition order."
It is to be noted that by sub-section (1) of section 17 once the matters in section 16 have been shown to their satisfaction they are under an obligation to make a demolition order or a closing order if the demolition order is inappropriate.
I have read the further sub-sections of section 16 in order to demonstrate that the appellant in this case was in a disadvantageous position. Owing to the nature of his tenancy he was not a person to whom notice had to be given under the terms of section 16. It was not obligatory upon the local authority to give him notice of their intention and consequently he was not in a position to make any representation at the time when this matter was being considered by the local authority and before they reached their conclusions. A further disadvantage under which he laboured lay in section 20 of the Act, sub-section (1) of which reads as follows: "Any person aggrieved by (a) a demolition or closing order may under this Part of the Act, or…. may, within 21 days after the date of the service of the order or notice appeal to the county court within the jurisdiction of which the premises to which the order or notice relates are situate, and no proceedings shall be taken by the local authority to enforce an order or notice in relation to which an appeal is brought before the appeal has been finally determined.
Sub-section (2) is the one which catches out the appellant in this case. It reads: "No appeal shall lie under this section at the instance of a person who is in occupation of the premises to which the order or notice relates under a lease or agreement of which the unexpired term does not exceed three years." Consequently the appellant in this case had no right of appeal to the local county court at which the merits of his case and the demerits of the local authority's case, if any, could be re-examined before the learned judge. The result of that is that his only available course of action was to proceed by way of judicial review and that is the reason why this case came before Mr. Justice McNeill and later before this court.
This of course severely restricts the area in which he has to manoeuvre. It is common ground on all hands that the appellant in order to succeed must bring himself within the words of Lord Greene, the Master of the Rolls in the Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation case, which is reported in 1948 1 King's Bench, page 223. The passage in consideration is at page 233 in these terms. Lord Greene says: "I do not wish to repeat myself but I will summarise once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority it may be still possible to say that although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override the decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."
The first matter to consider then is what statutory guidance is afforded to the local authority upon this aspect of their duties. I turn first of all to section 39 of the 1957 Act, section 1 of which reads as follows: "In determining for the purposes of this Part of this Act...
To continue reading
Request your trial