Greta Myrie Branchett (Plaintiff) Appellant) v 1) Sydney Beaney and Others Respondents)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 31 January 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0131-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 1992 |
| Docket Number | 92/0055 |
[1992] EWCA Civ J0131-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SITTINGBOURNE COUNTY COURT
(MR. ASSISTANT RECORDER CROME)
Royal Courts of Justice.
Lord Justice Balcombe
Lord Justice Ralph Gibson
92/0055
and
MR. R. CARNWATH Q.C and MR. S. CARROTT (instructed by Messrs. A.L. South of Sevenoaks) appeared on behalf of the Appellant.
MR. C. MACKAY Q.C. and MR. G. LEGGATT (instructed by Messrs. Kingsley Smith & Co. Of Gillingham) appeared on behalf of the First Respondents (the Beaneys).
MISS JUDITH ROWE (instructed by Messrs. Frith & Woodger of Sittingbourne) appeared on behalf of the Second Respondents (the Costers).
MR. MICHAEL BURKE-GAFFNEY Q.C. and MISS ANNE BELL (instructed by the Solicitor to the Council) appeared on behalf of the Third Respondent (the Swale Borough Council).
This is the judgment of the court.
The appellant, Greta Myrie Branchett, was born in 1917 and is now 74 years old. She was born in 1 Layfield Cottages, Howt Green, Bobbing, Sittingbourne, Kent, of which her mother was then the tenant. In 1969 the appellant succeeded to her mother's tenancy and became the statutory tenant of the property. She lived there with her husband and children. The rent was £2 per week, inclusive of general rates when these were in force.
The property was sorely in need of repair and on 26th September 1973 the Swale Rural District Council (whose successors are the respondents Swale Borough Council and whom we shall refer to as "the Council") made a demolition order ("the First Order") in respect of the property on the grounds that it was unfit for human habitation and incapable of being made fit at reasonable cost. No work was thereafter done to the property. Part of the difficulty was the appellant's refusal to vacate the property to enable the necessary repairs to be effected.
The appellant's husband died in 1983. She continued to live in the property with one of her grown up sons.
On 28th November 1983 the freehold of the property (with other adjoining property) was transferred to the respondents, Mr. and Mrs. Beaney, who thereupon became the appellant's landlords.
In 1984 the property became a Grade II listed building and in consequence the Council had to revoke the First Order and make a closing order ("the Second Order") in its place, which they did on 7th November 1986.
Meanwhile on 31st October 1986 (the anniversary of the birth of the appellant's deceased husband) the Beaneys caused workmen with a bulldozer to come on to the site of the front garden of the property of which the appellant was tenant. Although there were then proceedings for possession pending by the Beaneys against the appellant, these were determined in the Court of Appeal in favour of the appellant, and this invasion of the appellant's garden was undoubtedly a trespass, as was eventually conceded. The purpose of the intrusion was to construct an accessway, with a hardcore base, from the private access road to the south of the property to serve a new house which it was then proposed to erect to the northeast of the property. That new house has since been erected.
The Council rescinded the Second Order on 17th June 1987.
The property was further damaged in the gales of October 1987. However, the appellant still refused to vacate the property to enable repairs to be effected.
On 10th February 1988 the appellant commenced proceedings against the Beaneys in the Sittingbourne County Court, claiming damages for breach of their alleged statutory duty to repair the property under the Defective Premises Act 1972 and a mandatory injunction to compel them to remedy the defects in the property.
In June 1988 the Beaneys decided to sell the property and the adjoining property. They applied for, and obtained from the Council, planning permission to erect the new house to which we have already referred, on condition that they entered into an agreement with the Council pursuant to section 52 of the Town and Country Planning Act 1971 and section 33 of the Local Government (Miscellaneous Provisions) Act 1982. This they did and the agreement (referred to throughout as "the section 52 agreement" but more properly described as the section 33 agreement, as this was the operative provision) was made between the Council and the Beaneys (therein called "the owner") on 15th September 1988.
Clause 2 of the section 52 agreement was in the following terms:
"The owner hereby covenants with the Council that he will secure the completion of the works referred to in the Schedule annexed hereto within a period of twelve months of the sale or occupation of the dwelling house intended to be constructed pursuant to the proposed Application for Planning Permission referred to in paragraph (2) hereof whichever shall first occur."
The schedule to the section 52 agreement specified in considerable detail works to be carried out to the property and its adjoining property No. 2 Layfield Cottages. These works were in substance the same as those that had previously been recommended by the Council as necessary to render the properties fit for human habitation.
One of the conditions of the outline planning consent for the erection of the new house was:
"The proposed new access to A429 [the main road running along the western boundary of the properties] shall not be formed or used in any way until such time as the proposed A249 Iwade bypass is constructed and open to traffic."
In October 1988 the Beaneys transferred the property, together with the adjoining property, to the respondents, Mr. and Mrs. Coster, taking from them an indemnity with regard to their obligations under the section 52 agreement. The Costers moved on to the land, lived in a mobile home while the new house was erected, and at all times until the hearing of the action used the access road which had been constructed across the appellant's front garden.
In December 1988 the Costers were added as defendants to the appellant's action against the Beaneys and the particulars of claim were amended to include a claim for damages for breach of the implied covenant for quiet enjoyment based on the wrongful construction of the access road across the appellant's garden. Particulars of damage were given which included an allegation of distress caused to the appellant by the actions of the Beaneys and the Costers, leading to the appellant suffering from depression.
The judge found that the Costers had every intention of carrying out repairs to the property, but they were thwarted in their ability to do so by the appellant's continued refusal to vacate the property to enable the repairs to be effected.
On 30th January 1990 the Council made a closing order ("the Third Order") on the property in accordance with sections 265(2) and 304(1) of the Housing Act 1985. The appellant appealed against the Third Order on the grounds that the property was capable of being rendered fit for human habitation at reasonable expense and that the Council, in making the Third Order and generally, had acted unreasonably. That appeal came on for hearing at the same time as the appellant's action against the Beaneys and the Costers.
We were told that the hearing of the action and the appeal against the Third Order lasted for eight days before Mr. Assistant Recorder David Crome. Apart from the appellant herself and her two sons, Mr. Beaney, Mr. Coster, and three officers of the Council, expert evidence was given on behalf of the appellant, the Beaneys and the Costers. Medical reports were available as to the state of the appellant's health, but no such evidence was then called on behalf of the appellant. On the last day of the trial the appellant for the first time agreed to leave the property to enable the minimum necessary repairs to be effected. The Beaneys and the Costers also conceded that the construction and use of the access road was wrongful.
On 14th September 1990 the assistant recorder delivered a long and careful reserved judgment. By that judgment he made the following findings:
(1) Repairs
it was totally unreasonable of the appellant to insist that the work of repair be carried out with her in residence. Her claims for damages for the failure to repair the property and for an order requiring the repairs to be done were dismissed. Against this finding there is no appeal.
(2) Access road
he was not prepared to award damages for breach of the implied covenant for quiet enjoyment under the claimed heads of frustration, mental distress, injured feelings and annoyance. However, in respect of trespass he awarded £3,250 exemplary damages against the Beaneys and, against the Costers, ordinary damages at the rate of 30 per cent of the rent payable during their ownership. (As the rent was only £2 per week, this is a comparatively small sum).
(3) Appeal against the Third Order
the operative ground of appeal under this head was that the house was capable of being rendered fit for human habitation at reasonable expense, it being conceded by the Council that the appellant was a person aggrieved by the Third Order within section 269 of the Housing Act 1985. The judge found that the cost of the repairs necessary to render the property fit for human habitation was £35,000 to £40,000, that the value of the property, subject to the appellant's tenancy, before repairs was...
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