Iving Waters Christian Centres Ltd v Conwy County Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE,LORD JUSTICE ROBERT WALKER,LORD JUSTICE WALLER |
| Judgment Date | 29 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0429-11 |
| Docket Number | CCRTF 97/0903 CMS2 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1998 |
[1998] EWCA Civ J0429-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CONWY AND COLWYN COUNTY COURT
(HHJ ROBERTS QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Hobhouse
Lord Justice Waller
-and-
Lord Justice Robert Walker
CCRTF 97/0903 CMS2
MR R KING (instructed by RGH Dale Jones, Stockport) appeared on behalf of the Appellant.
MR R HORNBY (28.4.98) (MR H ROBERTS, 29.4.98) (instructed by Chief Legal Officer, Conwy County Borough Council) appeared on behalf of the First Respondent.
The Second Respondent did not appear and was not represented.
( )
Wednesday 29th April 1998
I will ask Lord Justice Robert Walker to give the first judgment.
This is an appeal by Living Waters Christian Centres Limited (which I will call "the company") from an order of Judge Roberts QC made on 20th May 1997 in the Conwy and Colwyn County Court. By the order the judge determined against the company preliminary issues which had been directed to be heard in two appeals by the company against two notices under section 352 of the Housing Act 1985.
One of the notices and one of the appeals relates to a building known as "Living Waters", Dolwen, Abergele. The other notice relates to an adjacent building known as "The Chimes". The company is the leasehold owner of both buildings. The freeholder, Mr Henry Fetherstonhaugh, is a party to the proceedings but has taken no part in the appeal. The active respondent to the appeal is the Conwy County Borough Council, which served the notices.
The two buildings, and the use to which they are put, are described in some detail in the judgment below, and the correctness of that description is not challenged in any way in this Court. It is sufficient for present purposes to say that the building now known as Living Waters used to be a mansion house known as Coed Coch, a Grade 2 listed building with stables, out-buildings and grounds of about 14 acres. In 1944 it began to be used as a boys' preparatory school known as Heron Water School. It remained a school until 1980. Then the Reverend David Philpott and his wife began to use it as a Christian conference centre owned and operated by the company of which they are directors. The mansion house was renamed Living Waters and the stables, adapted as residential accommodation, were named The Chimes. The company's lease requires it to use the demised premises for educational purposes.
At Living Waters there is sleeping accommodation for 90 persons in bedrooms (or small dormitories) on the first, second and third floors, three dining rooms for a total of 68 persons, lounges, a creche and other facilities. At The Chimes there is sleeping accommodation for 46 persons, a dining room for 23 persons, a recreation room, a meeting room, a gym and two chapels. The Reverend David Philpott and his wife used to live in a flat at Living Waters, but we have been told that they now live elsewhere on the estate.
The two sets of premises are run together with some sharing of facilities. They are used by groups with religious affiliations which come for retreats and or for similar spiritual or educational purposes, no doubt with an element of recreation as well. Groups come from different parts of this country or from overseas, especially from Lutheran churches in Germany. A group may be as small as 20 or (on very rare occasions) as large as 150, but an average size would be of the order of 75. During the summer months groups generally stay for one or two weeks. Otherwise they stay for weekends or long weekends or for short periods mid-week. The longest stay that anyone has made has been three weeks.
The transient nature of the visitors' stays and the spiritual and educational purposes of their stays are of central importance to the submissions made in support of the company's appeal.
The Housing Act 1985 consolidated the Housing Act (except so far as consolidated in the Housing Associations Act 1985 or the Landlord and Tenant Acts 1985). It re-enacted a very large volume of legislation, starting with the Small Dwellings Acquisition Act 1899 and including, among much other statutory material, the extant parts of the Housing Acts of 1957, 1961, 1964, 1969, 1974 and 1980.
Part XI of the Housing Act 1985 is headed "Houses in Multiple Occupation". Section 345 in its original form provided:
"In this part 'house in multiple occupation' means a house which is occupied by persons who do not form a single household."
To that has been added by the Local Government and Housing Act 1989, as from 1st April 1990, a new subsection (2):
"For the purposes of this section 'house' in the expression 'house in multiple occupation' includes any part of a building which -
(a) apart from this subsection would not be regarded as a house; and
(b) was originally constructed or subsequently adapted for occupation by a single household;
and references in this Part to a flat in multiple occupation is a reference to a part of a building which, whether by virtue of this subsection or without regard to it, constitutes a house in multiple occupation."
Section 399 defines "house" so as to include "any yard, garden, outhouses and appurtenances". These interpretation provisions do not, to my mind, give such assistance to the determination of this appeal.
Section 352 of the Housing Act 1985 empowers a local housing authority (such as the respondent county borough council is) to serve a notice where the condition of a house in multiple occupation is defective with respect to one or more of the matters specified in the section which include lighting, ventilation, washing and sanitary facilities and also (by an amendment in section 352(1A)) fire escapes, fire precautions and adequate water closets and baths. The notice is to specify works which the authorities consider requisite in order to make the premises reasonably suitable for occupation by the individuals and households for the time being accommodated there or by a smaller number.
The county borough council's notices to the company were both dated 15th August 1996. That in respect of Living Waters required scheduled works in respect of means of escape from fire, other fire precautions and provision of ventilation in bathrooms and water closets. That in respect of The Chimes required specified works in respect of means of escape from fire and other fire precautions. The notice in respect of Living Waters specified 90 individuals and one household (the latter referring, I understand it, to the Reverend David and Mrs Philpott). That in respect of The Chimes referred to 24 individuals.
The company had a statutory right of appeal under section 353, and it gave notice of appeal against each notice on 17th September 1996. In each case the ground of appeal was a defect or error in that the premises were not a house in multiple occupation within the meaning of the Act. On 15th October 1996 District Judge Williams directed preliminary issues on that point. The judge decided that both buildings were within the statutory definition and the company now appeals to this Court.
The judge clearly identified the issue before him in the following passage from his judgment:
"Section 345 defines a house in multiple occupation as 'a house which is occupied by persons who do not form a single household'. Accordingly, in order to qualify as a house in multiple occupation the premises concerned must satisfy three requirements, (1) that they are a house, (2) that they are occupied by persons, and (3) that those persons do not form a single household. It is agreed that each of the two premises is a house and therefore I need not consider such authorities as Okereke v. Brent London Borough Council [1967] 1 QB 42. It is also agreed that the persons who stay there do not form a single household. The issue is whether such persons can be said to 'occupy' the premises."
That clearly states the issue, but I must record, and I accept, the submission of Mr Richard King, for the appellant company, that the court's task is to construe not isolated words but the statutory provision as a whole.
The judge went on to hold that Living Waters and The Chimes were occupied by the groups which came to visit the premises even though they stayed only a short while and had other homes to return to. He said, near the end of his judgment:
"…..although it must be presumed that the people who stay at the appellant's premises have regular homes elsewhere, they do in fact occupy the premises while they are there in the sense of living in, or residing in, or being accommodated there. To find otherwise would, in my judgment, be incompatible with the purpose of Part XI of the Housing Act 1985."
In the original notice of appeal dated 12th June 1997 the company sought to challenge the judge's conclusion as to occupation on the grounds that the centre was run like a hotel, that the visitors had other homes to go to and that occupation implied residence and not mere physical presence. However, as foreshadowed in a draft amended notice of appeal prepared last December, Mr Richard King (who did not appear below) now seeks to withdraw the concession that each building was a "house" within the meaning of section 345. As part of the proposed amendment he seeks to substitute "building" for "house" throughout the original notice of appeal.
If the withdrawal of the concession meant that the judge's findings of fact...
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