F.F.F. Estates Ltd v Hackney London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON |
| Judgment Date | 25 July 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0725-2 |
| Docket Number | 79/1273 and 79/1274 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 1980 |
[1980] EWCA Civ J0725-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal From The Shoreditch County Court
Lord Justice Stephenson
Lord Justice Ackner
and
Dame Elizabeth Lane
MR. DAVID KEANE, QC. and MR. WILLIAM BIRTLES (instructed by R. A. Benge Esq., Borough Solicitor) appeared on behalf of the Appellants (Respondents).
MR. JOHN BOWYER (instructed by Messrs Arthur W. Kemp) appeared on behalf of the Respondents (Appellants).
The judgment I am about to read is the judgment of the court.
F. F. F.. Estates Limited ("the landlords") are the owners of a dwellinghouse, No. 43 Burma Road, Stoke Newington. The London Borough of Hackney ("the Council") on 8th February 1979 served on the landlords two improvement notices under s. 89 of the Housing Act 1974 in respect of two dwellings into which No. 43 was divided. On 18th January 1980 in the Shoreditch County Court His Honour Judge Willis allowed an appeal by the landlords under s. 91 of the Act and quashed the notices. The Council appeal to this court.
The appeal raises a number of points. The first two are of some general importance for the construction and application of the Act and for the circumstances in which local authorities may exercize their powers of compulsory improvement.
Number 43 has four floors. The basement and ground floor comprise four rooms and a kitchen and are let to a Mrs. Horton under a controlled tenancy. She has lived there with her son for more than 15 years. The first and second floors comprise five rooms and a kitchen and are let to a Mrs. Wilkins under a regulated tenancy. She has lived there with her husband for more than 15 years. These two dwellings are not self-contained. There is only one bathroom, on the half landing between the ground and first floors, with bath and hand basin and hot and cold water, the hot water supplied from a water heater in Mrs. Wilkins' kitchen. There are two water closets, one on the ground floor and the other
requested. The landlords did not reply. On 8th June Mr. Brydson then laid certain estimates before the council with a recommendation that authority be given for the service of provisional notices under s. 89(4)(a) of the Act, and authority was given. On 23rd June 1978 the council sent the landlords provisional improvement notices under Part VIII of the Act with a letter inviting them to attend a meeting of the Health and Consumer Protection Sub-Committee on 17th July at which proposals in respect of the improvement of number 43 would be considered and to meet senior officers of the council on 4th July to discuss any points they would like clarified before the Sub-Committee meeting. The landlords did not attend either meeting but they wrote on 3rd July that they had decided a year ago to carry out their own improvements, were intending to apply for grants and would wish the notices to remain in abeyance.
After receipt of the landlords' application for an improvement grant the council had some difficulty in getting answers to their letters to the landlords' architect. In February 1979 the landlords changed their architect and acted thereafter through their manager, Mr. Bard. On 8th February 1979 the council served on the landlords the improvement notices which are the subject of this appeal. On 20th February 1979 the landlords gave notice of appeal to the county court, and on 30th March 1979 the council granted them planning permission. Their application for an improvement grant has not yet been determined. Their appeal was heard by the judge on 21st September and 19th, 20th and 23rd November 1979 and allowed, as already mentioned, on 18th January this year.
The two improvement notices are in due form. The first is addressed to the landlords as the person having control of the basement and ground floor dwelling at number 43. It reads:
"TAKE NOTICE that -
(1) the Hackney London Borough Council having on the 23rd June 1978 served a provisional notice under Section 89 (3) of the Housing Act 1974, have taken into consideration all such representations as were made on or before 17th July 1978, being the date given in the said provisional notice for discussion of the Council's proposals for the said dwelling;
(2) the Council are satisfied -
(a) that the dwelling is capable of improvement at reasonable expense to the (full) standard, and
(b) that, having regard to all the circumstances, the dwelling ought to be improved to the said standard and is unlikely to be so improved unless the Council exercise their powers under section 89 of the Housing Act, 1974.
(3) the Council, in pursuance of section 89(5) of the Housing Act, 1974 hereby require you to carry out, within twelve months from the date when this notice becomes operative, the works specified in the schedule to this notice, being works which, in the opinion of the Council, are required to improve the dwelling to the said standard.
A copy of this notice is being served on the tenant and on every other person who, to the Council's knowledge, is an owner, lessee or mortgagee of the dwelling.
Amenities Required
(i) a fixed bath or shower:
(ii) a hot and cold water supply at a fixed bath or shower:
(iii) a wash hand basin:
(iv) a hot and cold water supply at a wash hand basin:
(v) an internal water closet.
(see schedule attached)
Estimated Cost: £5,411"
Attached to that is a considerable schedule.
The second notice is addressed to the landlords as the person having control of the first and second floor dwelling and differs only in the Schedule of amenities required - "An internal water closet" - and the estimated cost -"£4303".
To see why the judge quashed these apparently valid notices it is necessary to examine some of the provisions of Part VIII of the Act of 1974 before considering the landlords' grounds of appeal to the judge and his reasons for quashing the notices.
Part VIII deals with Compulsory Improvement of Dwellings. Ss. 85-88 deal with dwellings in general improvement areas and housing action areas; s. 89 deals with dwellings outside those areas. It provides:
"89(1) An occupying tenant of a dwelling which -
(a) is not in a general improvement area or a housing action area, and
(b) is without one or more of the standard amenities, whether or not it is also in a state of disrepair, and
(c) was provided (by erection or by the conversion of a building already in existence) before 3rd October 1961.
may make representations in writing to the local authority for the area in which the dwelling is situated with a view to the exercise by the Authority of their powers under this section.
(3) If, on taking the representations into consideration, the local authority are satisfied -
(a) that the person making the representation is an occupying tenant of the dwelling in question, and
(b) that the provisions of paragraphs (a) to (c) of subsection (1) above apply in relation to the dwelling, and
(c) that the dwelling is capable at reasonable expense of improvement to the full standard or, failing that, to the reduced standard, and
(d) that, having regard to all the circumstances, the dwelling ought to be improved to the full standard or, as the case may be, to the reduced standard, and that it is unlikely that it will be so improved unless the local authority exercise their powers under this section.
the following provisions of this section shall apply.
(5) Subject to subsection (6) below, in any case where -
(a) representations have been made to a local authority under subsection (1) above, and
(b) as a result of those representations, a provisional notice has been served by virtue of subsection (4)(a) above,
the local authority may, at any time before the expiry of the period of 12 months beginning with the date on which, the representations were received by them, serve an improvement notice on the person having control of the dwelling; and subsection (4) of section 88 above shall apply as it applies in relation to an improvement notice served by virtue of subsection (1) of that section.
(6) Before serving an improvement notice in respect of a dwelling by virtue of subsection (5) above, a local authority shall satisfy themselves -
(a) that the provisions of paragraphs (b) to (d) of subsection (3) above still apply in relation to the dwelling: and
(b) that the housing arrangements are satisfactory or that no housing arrangements are required or that the occupying tenant has unreasonably refused to enter into any housing arrangements."
On appeal the judge took, a point not taken by the landlord that these tenants might not have made the representations which they signed, but he made no finding that they hadnot. Mr. Bowyer sought, in a respondent's notice which we gave him leave to put in, to take the point that they had not made the necessary representations. But the council were given no opportunity to call evidence on that matter and we refused to allow Mr. Bowyer to raise it in this court. It is not disputed that these dwellings were provided before the 3rd October 1961 and are not in a general improvement area or in a housing action area. So four conditions remain to be satisfied:
(1) The dwellings must be without one or more of the standard amenities: s.89 (l)(b).
(2) They must be capable at reasonable expense of improvement to the full standard: s.89 (3)(c).
(3) The council must be satisfied that, having regard to all the circumstances, they ought to be improved to the full standard: s.89 (3)(d).
(4) The council must be satisfied that housing arrangements are satisfactory for the tenants: s.89 (6)(b).
S.90 contains general provisions as to improvement notices:
"90(l) Subject to the following provisions of this section, a notice under this section (in this Part of this Act...
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