Harrington v Croydon Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE SALMON,LORD JUSTICE RUSSELL |
| Judgment Date | 26 July 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0726-2 |
| Date | 26 July 1967 |
| Court | Court of Appeal (Civil Division) |
In the Matter of The Housing Act 1964
and
In the Matter of an Improvement Notice dated 22nd September, 1966.
[1967] EWCA Civ J0726-2
Lord Justice Willmer,
Lord Justice Russell and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Judge Cohen at Croydon County Court 9th March, 1967.
Revised
Mr ANTHONY CRIPPS, Q.C., and Mr KONRAD H.T. SCHIEMANN (instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr Alan Blakemore, Town Clerk, Croydon) appeared on behalf of the Appellants (First Respondent).
Mr MICHAEL R. HOARE (instructed by Mr Alma Rawlence, Croydon) appeared on behalf of the Respondent (Appellant).
I have asked Lord Justice Salmon to deliver the first judgment.
Mrs Harrington is the freeholder of No. 143, Bynes Road in Croydon. The house with which we are concerned is a terraced house ninety years old and in reasonably good repair. On the first floor there are three bedrooms. On the ground floor there is a hall, kitchen, two living rooms and a covered lobby. Outside there is a w.c. and a good garden.
This house is lived in by Mr and Mrs Rutter, who have been there for upwards of twenty years. It is not clear whether both are the tenants, or whether Mr Rutter alone is the tenant, but it does not matter for in any event this is clearly a protected tenancy. Living with Mr and Mrs Rutter are their son, aged twenty-one years, and their daughter, aged seventeen years. The rent is £1.3s. a week. The rent which this house would command on the open market if there were no protected tenancy could be £4 a week. The value of the property to Mrs Harrington with the Rutters in occupation is about £400/£500. The market value of the property with vacant possession has been estimated at £1,800 by one of the two surveyors who gave evidence before the learned county court judge, and at £2,500 by the other.
Bynes Road is in an improvement area in respect of which a statutory resolution has been passed under section 13 of the Housing Act of 1964. On the 22nd September of last year an immediate improvement notice was served upon Mrs Harrington under sections 14 and 16 of this Housing Act requiring her within twelve months to "construct a brick-built ground floor extension as a bathroom with bath and wash-hand basin and internal w.c. Provide hot water supply to bath and basin and necessary cold water services; ventilated food store; external door. Drainage and desecrations. To accord with the attached specification". The estimated cost of this work was £650. Not very surprisingly Mr and Mrs Rutter had signified their assent to the proposed improvements. Mrs Harrington appealed under section 27 of the Act asking the county court judge to quash the improvement notice on grounds which I shall consider in a moment.
For many years prior to the Act of 1964, local authorities have had powers to compel landlords to keep their property in a state fit for human habitation. It is the duty, certainly the social duty, of local authorities to exercise those powers strictly. It would be quite wrong to allow landlords to go on taking rents in respect of premises which are unfit for human habitation, or to let their property deteriorate with the object of forcing out their tenants and thus depriving them of the protection of the Rent Acts. But the Housing Act 1964 was the first occasion upon which the legislature gave local authorities the power to compel landlords to spend money on improving dwellings in single occupation which were fit for human habitation.
I think that the learned county court judge was very impressed by the fact that Mr and Mrs Ruttor were occupying a house in a good state of repair which had three bedrooms, two sitting rooms, a kitchen and a good garden for £1.3s. a week, a little more than a quarter of the rent which it would have fetched on the open market. I think that he was also impressed by the fact that the present value of the property to Mrs Harrington was less than a quarter of its market value with vacant possession. He felt that in those circumstances the statute could not give power to the local authority to compel Mrs Harrington to undertake a further financial burden for the purpose of conferring yet another benefit upon a tenant who might well be regarded as being in an exceptionally favourable position already. He accordingly decided that the improvement notice was had, quashed it and allowed the appeal. Much as I sympathise with his approach, I cannot agree with his decision.
The first question that was canvassed before the learned judge and before us raised the point as to whether or not there was power in the local authority to compel Mrs Harrington, the landlord, to improve these premises by building on a bathroom. It was submitted on behalf of Mrs Harrington that the Act gave the local authority the power to compel a landlord, in the appropriate case, to convert some room in the house into a bathroom, but did not givethe local authority power to order anything to be built on to the house. In other words, it is said that this Act is concerned only with improvements which could be effected within the four walls or shall of the house as it existed on the date when the improvement notice was served.
On behalf of the local authority it was argued, first, as a preliminary point, that oven if this submission made on behalf of Mrs Harrington was right, this was not a question that could be raised before the learned county court judge on an appeal under section 27. Secondly, it was argued on behalf of the local authority that, even if they were wrong on that point, and it was open to the learned judge to pronounce upon the validity of the notice under section 27, he reached the wrong conclusion because the authority had power to compel Mrs Harrington to do what she was required to do by the improvement notice.
I can deal quite shortly with time preliminary point. Section 27, subsection (1), so far as it is material for this point, reads as follows; "Within six weeks from the service on the person having control of the premises of an improvement notice, any such person or any other person having an estate or interest in the premises, other than a person whose only estate or interest is as a tenant occupying the premises, may appeal to the county court against the improvement notice". Subsection (2) sets out the grounds of appeal. Amongst the grounds of appeal there is the following ground (e): "that the improvement notice is invalid on the ground that any requirement of this Act has not been complied with or on the ground of some informality, defect or error in or in connection with the improvement notice". It seems to me that if the improvement notice had required the landlord to do something which the local authority had no power to require him to do, the improvement notice would clearly have been invalid since it would not have complied with the requirements of the Act. Moreover, in so far as it sought to exercise a non-existing power, clearly there would have been a "defect or error in or in connection with the" notice.
I am bound to say that I do not myself understand how it is even arguable that an appeal against a local authority issuing an improvement notice without power to do so can be brought only under section 29, but not under section 27 of the Act.
I should explain that if the work required to be done by a valid notice is not carried out by the persons concerned, then the Act provides that the local authority may carry out the work (section 28) and recover the cost of doing so from the person who should have carried it out (section 29). Subsection (5) of section 29 provides that when a demand for the cost of carrying out the work is made upon such a person, he may appeal to the county court against the demand, but on the appeal no question may be raised which might have been raised on an appeal against the improvement notice under section 27. I incline to the view that an appeal under section 29 is intended only to deal with the case where the landlord, or the person from whom the cost of the work is being demanded, is saying that the work has been badly or extravagantly done. It is not concerned with the validity of the notice. It could not be right that if an improvement notice is served on the landlord, he should be able to sit back, do nothing, and than, after the work has been carried out and a demand has been made upon him in respect of it, he should be able to come to the court raising a point as to the validity of the notice. This would mean that by doing nothing when the notice was served, he could obtain the whole benefit of the work without making any payment for it. That would be a very strange result. In my view the provisions of section 27 are quite plain. It is at the stage when the improvement notice is served, or not at all, that the person upon whom it is served must challenge its validity. There is nothing in the preliminary point.
Before leaving this point, however, I ought to say that it was faintly argued in this court that, even if the learned county court judge had power to consider the validity of the notice, and even if the notice was invalid, it did not substantially prejudice the landlord.
Subsection (3) of section 27 reads: "In so far as an appeal under this section is based on the ground that the improvement notice is Invalid, the court shall confirm the improvement notice unless satisfied that the interests of the appellant have been substantially prejudiced by the facts relied on by him". It seems self-evident to me that if a local authority seeks to exercise a non-existent power to compel a...
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