Dinefwr Borough Council v Elizabeth P.A. Jones
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BUSH,LORD JUSTICE FOX |
| Judgment Date | 23 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0623-6 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 1987 |
| Docket Number | 87/0639 |
[1987] EWCA Civ J0623-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE AMMANFORD COUNTY COURT
(MR ASSISTANT RECORDER D.J.T. PARRY)
Royal Courts of Justice,
Lord Justice Fox
Mr Justice Bush
87/0639
Case No. 86 12172
MR S. CARROTT (instructed by M.J. Reed, Esq., Solicitor, Carmarthen) appeared on behalf of the Appellant.
MR W. CRONIN (instructed by The Chief Executive, Dinefwr Borough Council) appeared on behalf of the Respondents.
This is an appeal from the decision of Mr Assistant Recorder Parry, whereby, after a hearing over several days, he gave a painstaking, thorough and well—argued judgment in favour of the defendant on her counter claim against the plaintiffs, the Dinefwr Borough Council, and awarded her £100. He made no order as to costs.
The action related to a dwellinghouse at 19, Maesybont, Glanamman, of which the plaintiff local authority were the freehold owners, and the defendant was their tenant. The action had commenced originally by the plaintiffs on 18th February 1986 as an action for possession and arrears of rent together with mesne profits. Those arrears were paid off by 15th April 1986, and on 25th April the plaintiffs withdrew their claim but there was in existence the counterclaim, which the learned Assistant Recorder had to decide, whereby the defendant claimed that the plaintiffs were in breach of their covenant to be implied into the contract which had been made between the parties under Section 11 of the Landlord and Tenant Act, 1985. That Section is in these terms:
"(l) In a lease to which this section applies……there is implied a covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
(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) and
(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water".
The Judge had before him a wealth of evidence from expert witnesses relating to the condition of the premises, some of which, it was said, was due to the local authority's default, and some of which was said to be due to the tenant's own default in the premises. He found, first of all, that the agreement for the tenancy, which was dated 28th November 1977, was a joint tenancy between the present defendant and her husband. The husband, however, takes no part in these proceedings, because the marriage is at an end and he has left the premises.
By paragraph 18 of the Tenancy Agreement, there was stated the place and person to whom complaints should be made by the tenant, which was described in these terms:
"Tenants are requested to address all complaints to: THE CHIEF HOUSING AND ENVIRONMENTAL HEALTH OFFICER, TOWN HALL, AMMANFORD".
As time went on the local authority had re-organised itself, and by the time a tenants' handbook was issued in 1984 there was a different address given for complaints, which is set out clearly in paragraph 20:
"Repairs are categorised in order of priority which would ordinarily be afforded to them".
Paragraphs 20 to 30 deal with the question of reporting the need for repairs, and it continues: "This may be done by personal visits to the Architectural Services Department, Town Hall, Ammanford" then a telephone number was given, and it continues "or The Municipal Offices, Crescent Road, Llandeilo" followed by a telephone number "or telephone or by letter".
There is no doubt that in the past the defendant had availed herself of that particular route for complaint and had received visits and repairs as a result of the complaints which she had made from time to time. I mention the differences in nomenclature because this case turns upon the question of whether the local authority had notice of the lack of repair to these premises. Reliance' is placed by the defendant upon an inspection of the premises by Mr David Thomas, who was in the Housing and Environmental Health Department and not in the Architectural Services Department, to which it was said the complaints should have been addressed. I deal with that matter later in this judgment.
The second matter which the Judge found was that Mr David Thomas had inspected the premises on 12th February 1985 in order to ascertain the condition of cleanliness, being the business of the Environmental Health Department, of which, as I have said, Mr Thomas was a member. Notwith standing that he had observed disrepair to the premises, the Judge found that this did not constitute actual knowledge on the part of the respondents, and thus there was no notice for the purposes of Section 11 of the Landlord and Tenant Act 1985.
That notice is required is clear from the decision of the House of Lords in O'Brien & Anor v. Robinson (1973) A.G. 912. At page 921D, Lord Morris of Borth-y-Gest said:
"On a consideration of the meaning of a lessor's obligation to keep premises in repair there has been scope for much reasonable competitive argument. The various authorities (which I do not propose fully to cite) show that every point of view has been explored. The following are some of the contentions that have been pressed. On the one hand, it has been said that it would be wholly unreasonable to make a lessor liable for failing to remedy a defect of which he was unaware. So the liability to repair is one that arises only upon notice that there is a need to repair. Where by contract between lessor and lessee there has been a covenant to keep in repair the parties must have intended that the obligation of the lessor would only arise if the lessor had notice of want of repair and a condition or stipulation to that effect should be imported into the contract. The lessee in occupation would be in the best position to know of any state of disrepair. On the other hand, it has been said that if a lessor chooses or is required to covenant to keep premises in repair then there is an absolute obligation upon him. Alternatively, even if ordinarily there is no obligation on the part of a lessor until he is told by his lessee of a need for repair, a lessee can only give notice of any condition of which he is aware and accordingly cannot give notice of some unknown or unseen condition or latent defect: if, in these circumstances, the lessee suffers injury by reason of the premises not being in repair liability should rest upon the lessor".
Then, at the conclusion of his speech he said that notice was required. Again, that notice need not necessarily come from the tenant, actual notice will suffice—and I would add to that, from some responsible source.
It is also derived from Lord Diplock's speech at page 930D, that a tenant is not obliged to identify the degree or extent of disrepair but must give sufficient information to the landlord on enquiry as to whether repairs are needed.
In the present case—and this case really turns upon its own facts—in the Notice of...
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