Critchell v Lambeth Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MORRIS,LORD JUSTICE PEARCE |
| Judgment Date | 07 May 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0507-4 |
| Court | Court of Appeal |
| Date | 07 May 1957 |
[1957] EWCA Civ J0507-4
The Master of the Rolls
(Lord Ever shed)
Lord Justice Morris
Lord Justice Pearce
In The Supreme Court of Judicature
Court of Appeal
MR. KENNETH JONES, instructed by Mr. John E. Fishwick, appeared for the Appellant.
MR. R. GAVIN FREEMAN, instructed by Messrs. Seifert Sedley ' Co., appeared for the Respondent.
: The difficult question, for difficult it seems to me to be, which has been debated on this appeal, arises out of the language of the Housing Acts of 1936 and 1954.
On the 8th October, 1956, the Council of Lambeth (if I may so briefly describe them) made a closing order in respect of certain basement rooms which were together occupied as a dwelling house in No. 88 Herne Hill. The house itself is owned by Mrs. Critchell, the plaintiff in the action, and we understand the basement rooms at all relevant dates were separately occupied by a family by the name of Collins.
The closing order made by the Council was justified by, and based upon, Section 12 (2) of the Housing Act 1936, and certain regulations made by the Council there under. The sub-section provides as follows: "A room the surface of the floor of which is more than 3 ft. below the surface of the part of the street adjoining or nearest to the room, or more than 3 ft. below the surface of any ground within nine feet of the room, shall for the purposes of this section be deemed to be unfit for human habitation, if either: (a) the average height of the room from floor to ceiling is not at least seven feet; or (b) the room does not comply with such regulations as the local authority with the consent of the Minister may prescribe for securing the proper ventilation and lighting of such rooms, and the protection thereof against dampness, effluvia or exhalation".
In the present case nothing turns on paragraph (a), because we understand that the height of the room, from floor to coiling, on average is not less than 7 ft. But it is said, and it is not disputed for the purposes of this appeal, that in certain respect the room or some of the rooms do not comply with the regulations which were promulgated, by the Council pursuant to the sub-section with the consent of the Minister. It therefore follows that, if the council is entitled now to rely upon Section 12 (2) and these regulations, the closing order was validly made. If, on the other hand, the council is not able now to rely on the sub-section and these regulations, the closing order was not validly made.
Mrs. Critchell, the plaintiff, took the matter, as she was entitled to do, by way of appeal to the county court, alleging that, by reason of Section 9 of the Housing Act of 1954, the Council were no longer able to rely upon Section 12 (2) and the regulations. This argument prevailed before the County Court judge and the Council have now appealed to this court.
I have already said that to my kind the case is one of considerable difficulty; but in my judgment in this court we are bound to answer the present question in Mrs. Critohell's favour by reason of a decision of this court in another case, not I think reported, called the Board of Governors of the London Hospital v. Jacobs, decided on the 28th February of the present year.
Having regard however to the difficulties of the case and out of respect to the argument which has been put forward on the council's behalf by Mr. Kenneth Jones, I shall make some references to the relevant sections of the Acts.
I begin with Section 9 of the 1936 Act. That section empowers a local authority to require insanitary houses to be properly repaired. The text of the first sub-section, as it originally ran, reads thus: "Where a local authority, upon consideration of an official representation, or a report from any of their officers, or other information in their possession, are satisfied that any house which is occupied, or is of a type suitable for occupation, by persona of the working clauses is any respect unfit for human habitation", etc.
By the Housing Act of 1949 the reference to persons of the working class, perhaps in accordance with changed social views, was eliminated from the principal Act, and, as will later appear, certain other words were in other sections inserted. But from what I have so far read it will be observed, first, that the section is dealing in terms with a house and, second, it is dealing with the case where such a house is unfit for human habitation.
Going ahead somewhat, I further note that there is nowhere in this part of the 1936 Act any statement of the standards of fitness or unfitness for human habitation. But by sub-section 4 of Section 188 of the same Act it is stated: "In determining for the purposes of this Act whether a house is fit for human habitation, regard shall be had to the extent, if any, to which by reason of disrepair or sanitary defects the house falls short of the provision of any byelaws in operation in the district or of any enactment in any local Act in operation in the district dealing with the construction and drainage of new buildings", etc.
Without therefore saying that the test is exclusively one by reference to local byelaws, it is at least true to say that the scheme of the 1936 Act contemplated that local authorities for their various respective districts would promulgate bye-laws to which regard should be had on the question: Aye or No, was a house in any district fit for human habitation?
I go back now to Section 10 of the 1936 Act, which is a section directed to enforcement of a notice requiring the execution of works, where the council has come to the conclusion that such works are requisite to render the house properly fit for human habitation.
Then in Section 11 is found the power of the local authority, in certain circumstances, to order demolition of unfit houses. Thus in sub-section 1 it is stated: "Where a local authority ….. are satisfied that any house … is unfit for human habitation and is not capable at a reasonable expense of being rendered so fit", then certain proceedings may be taken. The authority first serve on the owner and certain other persons, if they can be discovered, what has been referred to as a "time and place notice", that is, a notice that the person served should attend at certain time and place, if he wishes it, and make such representations to the authority about the premises as he desires; and upon that the authority may accept an offer by the owner to do work which would make the house in their view properly fit for habitation. But, if no such undertaking is given or if the work is not carried out, then the authority, by sub-section 4, is given power to demolish the unfit house.
I have stated that these sections relate in terms to what is called "a house". There is in the Act only this definition of "house", sub-section 3 of Section 188 says: "For the purposes of any provisions of this Act relating to the provision of housing accommodation, the expression 'house' includes, unless the context otherwise requires, any part of a building which is occupied or intended to be occupied as a separate dwelling". It is one of the obscurities which Parliament has presented to the courts in this Act that it is not clear whether that definition is intended to cover the sections which I have read or not.
The part of the Act which is directly concerned with the provisions of housing accommodation is Part V of the Act, not the part in which sections 9, 10 and 11 occur. But, as was pointed out by Mr. Freeman, the sub-section I have last read does not say "for the purposes of Part V of the Act". On the other hand there are undoubtedly other sections (for example, as Mr. Jones observed, Sections 34 sad 35 in part III of the Act) which might be said to relate to the provisions of housing accommodation and Mr. Jones urged with some force that the provisions for demolition of unfit houses can at best only somewhat obliquely be referred to as provisions for providing housing accommodation.
But, in any case, in my judgment the three sections which I have read use the word "house" in their context as meaning what is commonly called a house - that is, a separate structure.
So much I think appears plainly enough from the last of the three sections to which I have alluded; for clearly you could only sensibly demolish a house which is itself a distinct and separate entity. That view of the matter is made still more clear to my mind by the terms of Section 12, to the second sub-section to which I have already referred. The first sub-section as amended by the 1949 Act reads; "A local authority may under this part of this Act take the like proceedings in relation to any part of a building which is occupied, or is of a type suitable for occupation, as a separate dwelling, or in relation to any underground rooms which is for the purposes of this section to be deemed to be unfit for human habitation, as they are empowered to take in relation to a house, subject, however, to this qualification that, in circumstances in which, in the case of a house, they would have made a demolition order, they shall make a closing order prohibiting the use of the part of the building or of the room, as the case may be, for any purpose other than a purpose approved by the local authority". I need not read more of subsection 1. Then follows sub-section 2 which I have already read, save for the proviso which I need, not take time to rend also.
The effect of Section 12, sub-section 1, on the face of it, seems to be this. It is saying that as regards part of a building, provided that that part is unfit for human habitation, the local authority may take the same steps or proceedings in...
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