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O'Connor and Others v Old Etonians Housing Association Ltd

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Vincent
JurisdictionEngland & Wales
Judgment Date20 February 2002
Neutral Citation[2002] EWCA Civ 150
Docket NumberCase No: B1/2001/0479
CourtCourt of Appeal (Civil Division)
Date20 February 2002
Categories

[2002] EWCA Civ 150

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

CHANCERY DIVISION

The Hon. Mr Justice Blackburne

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Phillips Mr

Lord Justice Waller and

Lord Justice Buxton

Case No: B1/2001/0479

Between
O'connor and Others
Claimants/Respondent
and
Old Etonian Housing Association Ltd
Appellants/Defendants

Ranjit Bhose (instructed by Messrs Prince Evans (Ms S Jackson)) for the Appellants

Paul Staddon (instructed by Wilson Howard (Donna Humphreys)) for the Respondents

Lord Phillips M.R. :

This is the judgment of the Court

Introduction

1

This appeal raises a point on the construction of section 11(1)(b) of the Landlord and Tenant Act 1985. It raises a similar point on the construction of clause 2(5) of certain tenancy agreements. The question to which the parties would like an answer is what is involved in the obligation to keep pipes carrying water in "proper working order". The tenancies with which this appeal is concerned are of four flats on the top floor of Eton House in Leigh Road North London. The tenancies commenced on various dates between September 1991 and June 1994. The facts as assumed by the judge are appended hereto. The key points assumed are (i) prior to any of the tenancies commencing in 1986/87 the landlords refurbished Eton House and replaced the water pipework with pipework of a smaller bore; (ii) those smaller pipes carried water successfully to the top floors of the relevant premises for some years; (iii) from the summer of 1992 onwards the smaller pipes did not do so the water pressure having fallen; (iv) the previous pipes would have carried water to the third floor successfully during that period; (v) the landlord could have installed a pump to make the smaller pipes carry the water to the third floor; (vi) from 1998, once the Water Authority had constructed a new pumping station, the water was carried successfully to the third floor flats by the smaller pipes.

2

On 22 August 2000 His Honour Judge Marr-Johnson in the Mayor's and City of London Court held, on the facts as assumed, that there was no breach of the obligation to keep pipes in proper working order. His reasoning in essence was that since the smaller pipes worked perfectly successfully for a period of years, and since nothing had altered except the water pressure, there was no failure to keep in proper working order.

3

On appeal to Blackburne J however, by a judgment dated 9 February 2001, the judge, again on the assumed facts, allowed the appeal. He held that the obligation to keep in proper working order was an obligation "to ensure that the pipes were physically or mechanically capable of supplying water to the flats" and he held that on the assumed facts the landlord could have so ensured but did not.

4

This is thus a second tier appeal brought with leave of Arden LJ. She gave leave on the grounds that there was a real prospect of success on the issue of statutory construction whether a breach of the obligation imposed by section 11(1)(b) of the Landlord and Tenant Act 1985 can arise where an installation is in mechanical order but fails to carry out its function due to some matter for which responsibility cannot be attributed to the landlord. She also identified a point of principle—an opportunity for the court to consider its decision in Campden Hill Towers Ltd v Gardner [1977] 1 AER 739 in relation to what was held by the House of Lords in Liverpool County Council v Irwin [1977] AC 239.

5

Although there is no doubt that the question of statutory construction and the point of principle do arise in the litigation between the tenants and the landlord, the method chosen for deciding the points has not proved satisfactory for two reasons.

6

In the first place the assumed facts were agreed for the purpose only of the determination of preliminary issues. Thus, although Blackburne J. ruled in favour of the tenants on the agreed facts, this did not rule out the need for a trial in order to determine what the facts actually were. This was not a satisfactory result. More fundamentally, however, we have concluded that, even if the facts are proved as agreed, they will not be adequate to found a decision on liability. In explaining why this is so we shall, however, cast some light on the important issue of construction that arises in this case.

The issues ordered to be tried

7

Section 11(1)(b) of the Landlord and Tenant Act 1985 provides as follows:

"(1) In a lease to which this section applies there is implied a covenant by the lessor –

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity)."

8

It is unnecessary to set out clause 2(5) of each tenancy agreement. It is sufficient to say that the language is the same as that of the statute, in that it obliges the landlord to "keep in repair and proper working order any installations …."

9

Issues were ordered to be tried in relation to the construction of both section 11(1)(b) and clause 2(5) but it is only necessary to set out one such issue, the language of both being the same. The issue ordered by the District Judge was as follows:

"Whether, on the proper construction of section 11(1)(b) of the Landlord and Tenant Act 1985, and on the assumption, for current purposes only, that the supply of water to the premises referred to in the particulars of claim was intermittent and inadequate, the defendant can be liable in law for breach of the implied covenant by reason only of the fact that the pipes supplying the water to the premises are of one inch diameter as opposed to one and a quarter inch diameter and/or that no booster pump was installed at Eton House."

A re-formulation of the issues

10

The issue as formulated does not adequately accommodate the peculiar features of a case such as this. It seems to us that three issues can be identified, although these issues overlap to a considerable extent:

i) Does the requirement to keep an installation for the supply of water, gas or electricity 'in proper working order' require the landlord to ensure that the installation is so designed and constructed as to be capable of performing its function at the commencement of the tenancy?

ii) To what extent must the installation be designed and constructed in a manner that will cater for variations in the quantity or character of the water, gas or electricity supplied?

iii) If, because of some change in the quantity or character of the supply, the installation is no longer capable of performing its function, is the landlord obliged to adapt the installation in order to accommodate the change?

The first issue

11

For the tenants, Mr Staddon argued that the landlord's duty at the commencement of the tenancy was to provide installations for the supply of water gas and electricity that were capable of performing their function of conveying the water gas and electricity received from the undertaker to the appliances which used them in each tenant's flat. In so submitting, he relied principally upon the decision of the House of Lords in Liverpool City Council v Irwin, which dealt with the predecessor to section 11 (section 32 of the 1961 Act). The relevant issue was whether lavatory cisterns, which, because of a design defect were liable to overflow, constituted a breach of the landlord's duty to keep the installations in proper working order. As to this, Lord Edmund-Davies commented at p. 269:

"It is clear that section 32(1)(b) of the Housing Act 1961 imposes an absolute duty upon the landlord "to keep in repair and proper working order the installations in the dwelling house-…" It could be said that the opening words ("to keep …") apparently limit the landlord's obligation to preserving the existing plant in its original state and create no obligation to improve plant which was, by its very design, at all times defective and inefficient. But the phrase has to be read as a whole and, as I think, it presupposes that at the inception of the letting the installation was "in proper working order,"and that if its design was such that it did not work "properly" the landlord is in breach.

Bathroom equipment which floods when it ought merely to flush is clearly not in "working order,"leave alone "proper" working order (if, indeed, the adjective adds anything). To say that such whimsical behaviour is attributable solely to faulty design is to advance an explanation that affords no excuse for the clear failure "to keep in … proper working order." Just as badly designed apparatus has been held not of "good construction" ( Smith v A Davies & Co (Shopfitters) Ltd (1968) 5 K.I.R. 320, per Cooke J), so in my judgment the landlords here were in breach of section 32(1)(b) by supplying bathroom equipment which, due to bad design, throughout behaved as badly as did the Irwins' cistern. I do not, however, find established any of the other statutory breaches alleged."

12

Implicit in this passage are two principles which bear on the first issue. First, something which is not working because it is badly designed is not "in proper working order". Second, if there is an obligation to " keep" in "proper working order" there must by inference be an obligation to supply at the commencement of the tenancy the installation in proper working order. It is implicit in the speeches of Lord Cross at p.257G, Lord Salmon at p. 264C and Lord Fraser at p.276C that they agreed...

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2 cases
  • Niazi Services Ltd v van der Loo
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 February 2004
    ...it sheds light on the meaning of s.11(1A)(a). 25 Before passing from this point we should mention O'Connor v Old Etonian Housing Assn. [2002] Ch. 295 relied upon by Mr Cowen. There, this court was concerned with a case about s.11(1), not s.11(1A). The pipes in a block of flats had been chan......
  • Long v Southwark London Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 March 2002
    ...loss by drawing matters to the attention of the appellants. There was no contractual responsibility to prevent noise. 27 In O'Connor v Old Etonian Housing Association [2002] EWCA Civ. 150, preliminary questions were raised as to the true interpretation of the statutory obligations which the......
3 provisions

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