Graeme and Carole Ann Barnes (Appellants Below) v The Sheffield City Council (Respondents Below)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PETER GIBSON,LORD JUSTICE SAVILLE |
| Judgment Date | 09 May 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0509-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1995 |
[1995] EWCA Civ J0509-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(His Honour Judge Walker)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Peter Gibson Lord Justice Saville
MR. JONATHAN GAUNT Q.C. And MR. IAN GROOM (instructed by Messrs. Glass Bagshawe, Solicitors, Sheffield) appeared on behalf of the (Appellants below) Respondents.
MR. ASHLEY UNDERWOOD and MISS A.M. EDWARDS (instructed by Mr. Mark Webster, City Solicitor and Head of Administration) appeared on behalf of the (Respondents below) Appellants.
This is an appeal against a decision of His Honour Judge Walker, sitting as a deputy judge in the Sheffield County Court on 2nd September 1994. The case before the learned judge arose out of an appeal against a notice served by the Sheffield City Council on the owners of a house, No. 494 Crookesmoor Road, Sheffield, under section 352 of the Housing Act 1985. There were two issues before the judge of which the first was whether the house in question was a house in multiple occupation within the definition in section 345 of the Housing Act 1985 at the date the notice was served. The notice was served on 22nd May 1992, and that was accordingly the material date for the purpose of this issue. The judge held that the house was not a house in multiple occupation and the council appeal against that decision.
The house in question is described as a small, turn of the century mid-terrace house. On the ground floor there are two rooms. One of those has at all times been used as a kitchen and dining room. The other room was between 1991 and 1992 used as a bedroom but has since then been used as a sitting room.
On the first floor there is a bathroom with a lavatory and also two bedrooms, one of them small. On the second floor there are two attic bedrooms. Outside the house there is a yard with an external lavatory.
In 1990 Mr. And Mrs. Barnes bought this house and did it up. They then let it for the period July 1990 to July 1991 to five students. Two of those students were in their second year
and three in their third year. In July 1991 the three third year students moved on and the two second year students stayed in residence. There then joined them three more students, all of them girls. One was a friend of one of the two girls; the other two were not particular friends but were students on the same course at the same university. One of the girls, who was in residence in the house for two years, was Miss Jagdeep Mann.
She gave evidence at the hearing before the judge and also filled in a questionnaire describing the arrangements when she had lived in the house. As a result of a notice given to the Council by the father of one of the girls, a representative of the Council visited the premises and formed the view that too many people were living there, that one of the first floor bedrooms was too small to be used as a bedroom in a house without a living room, and that the shared kitchen was too small for five occupants, although big enough for four. Accordingly on 22nd May 1992 the Council served three notices on Mr. And Mrs. Barnes.
The first notice was under section 189 of the Housing Act 1985 and required larger roof lights to be installed in the two attic bedrooms. The second was under section 352 and required various works to be carried out. First, it required the fitting of a larger worktop in the kitchen; secondly, it required improvements to the outside lavatory; thirdly, it called for improvements to the fire resistance of the house, including the installation of seven half-hour fire doors, the
upgrading of ceilings, the installation of a fire corridor in the ground floor front room and a system of emergency lighting for the hall and staircase; fourthly, it required additional fire precautions, including the provision of fire extinquishers and fire blankets, and a comprehensive fire alarm, heat and smoke detection system. The third notice informed the owners that the first floor rear room was below the minimum size of a bedroom in a house with a kitchen-dining room but no separate living room. At the time these notices were served Mr. And Mrs. Barnes had already let the house for the academic year July 1992 to July 1993 by an agreement which they had made in February. The other parties to the agreement were four young men, also students, who agreed to take the property for that year. As it happened, those four students remained in occupation after July 1993 for another year, but that is irrelevant to this narrative.
In June 1992 Mr. And Mrs. Barnes appealed against all three notices. I should, however, make it clear that they had done some work to comply with them. After the girls had left at the end of the summer in 1992, the Barneses had completed the work necessary to comply with the section 189 notice. They had also (in compliance with the section 352 notice) fitted the larger worktop in the kitchen; they had provided fire extinguishers and blankets; and the number of occupants had already been reduced from five to four. The appeal therefore related to the balance of the fire precaution works which were in themselves quite an expensive undertaking.
In early 1994 there was an interlocutory hearing in Court at which the Council agreed that the works to the outside lavatory could be omitted, that the fire corridor could be omitted on the grounds that it would make the ground floor front room too small, and that the smaller first floor room could continue to be used as a bedroom so long as the ground floor room was used as a living room. It was that issue which came before the learned judge on 31st August 1994 when there was a hearing, extending into a second day, at which evidence was given.
It is common ground that, if the notice served on the owners under section 352 related to a house which was not in law a house in multiple occupation, then that was an error in the notice which provided the owners with a ground of appeal under section 353(2)(c) of the Act. The question therefore was whether on 22nd May 1992 this was a house which was occupied by persons who did not form a single household. I put it like that because the definition of "a house in multiple occupation" is to be found in section 345(1) of the 1985 Act, which provides:
"… 'house in multiple occupation' means a house which is occupied by persons who do not form a single household."
The meaning of that expression has been considered by the courts on more than one occasion, in particular by the House of Lords in Simmons v. Pizzey [1979] A.C. 37. The most germane passage is to be found in the speech of Lord Hailsham at page 59F where, having referred to various dictionary definitions and also definitions to be found in a number of authorities, he said:
"I do not find any of these references particularly helpful except to make clear to me what I would have supposed in any case that both the expression 'household' and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive."
That case of course related to a refuge for battered wives, and, addressing the particular facts of that case, Lord Hailsham outlined the factors which led him to the conclusion that it could not be regarded as a single household for purposes of the relevant legislation. One of the factors was the mere size of the community which occupied the house. He pointed that the number of occupants well exceeded what could ordinarily and reasonably be regarded as a single household. The second factor to which he drew attention was the fluctuating character of the resident population, both as regards the fact of fluctuation and the extent of it. The fact that a large number of residents came and went all the time in his view indicated that this house was not occupied as a single household. He thirdly paid attention to the fact that those who did live there did so as "a temporary harbour in a storm".
That again in his view was a relevant matter. It is, however, apparent from the passage I cited at the outset that he was setting his face against the use of any single test to answer the statutory question.
We have also been referred to the London Borough of Hackney v. Ezedinma [1981] 3 All E.R. 438. That was a case which went on appeal to the Queen's Bench Divisional Court against a decision of justices, and it is apparent that both Mr. Justice May, who gave the main judgment, and Lord Justice Griffiths had reservations about the factual conclusion which the justices had reached although they both thought it wrong to disturb it. So far as principle is concerned, I think the case is of very limited authority. The same is true of Berg v. Trafford Borough Council (1987) 20 H.L.R. 47, a decision of the Court of Appeal which is of interest but which does not throw any helpful light on the meaning of this expression. It seems, therefore, that one is essentially driven back to one's own understanding of what is meant by occupation by persons forming a single household, of course bearing in mind the legislation in which this expression appears...
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