Jones v Cleanthi
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jonathan Parker,Sir Peter Gibson,Lord Justice Pill |
| Judgment Date | 12 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1712 |
| Docket Number | Case No: B2/2005/2880 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2006 |
[2006] EWCA Civ 1712
Lord Justice Pill
Lord Justice Jonathan Parker and
Sir Peter Gibson
Case No: B2/2005/2880
BN304462
Mr Clifford Darton and Mr Kevin Pain (instructed by Howlett Clarke) for the Appellant
Mr Timothy Fancourt QC and Mr Tom Weekes (instructed by Griffith Smith) for the Respondent
INTRODUCTION
This is an appeal by Mrs Elizabeth Jones, the claimant in the action, against an order made by Bell J on 6 December 2005 dismissing her appeal against an order made by HHJ Simpkiss, in the Brighton County Court, on 22 April 2005.
Mrs Jones is tenant of Flat 10A, 41 Kings Road, Brighton under a 99-year Lease dated 19 March 1979 and made between the then freeholder of the building at 41 Kings Road and a predecessor in title of Mrs Jones as tenant ("the Lease") . The defendant in the action is Mr Christos Cleanthi, who now owns the freehold reversion in the building. In the action, Mrs Jones seeks declaratory and injunctive relief against Mr Cleanthi to enforce certain rights in the nature of easements granted by the Lease, viz. rights for the tenant for the time being under the Lease and his or her servants and visitors to use the communal refuse bins in an area at the rear of the building ("the rear area") , coupled with a right of access to the rear area for that purpose via the common parts in the building.
It is common ground that the rights in question were expressly granted by the Lease. It is also common ground that in 1995 Mr Cleanthi's immediate predecessor in title, Mr Derek Burt, erected a wall across a passage on the ground floor of the building leading to the rear area, thereby blocking off all access by residents of flats in the building to the rear area, and to the communal refuse bins which had previously been kept there; and that he did so pursuant to a notice served on him by Brighton Borough Council, as local housing authority, under section 352 of the Housing Act 1985 (as amended) ("the 1985 Act") requiring him to do so in order to maintain adequate fire precautions in the building.
Mr Cleanthi (who acquired the freehold of the building in November 2003) contends by way of defence to Mrs Jones' claim that by virtue of the section 352 notice Mr Burt was under a statutory duty to erect the wall; and that by operation of law his performance of that statutory duty extinguished once and for all Mrs Jones' right of access to the rear area and her right to use the communal refuse bins. Alternatively, if (contrary to his primary contention) those rights were not extinguished once and for all, Mr Cleanthi relies on the existence of the alleged statutory duty for the contention that in erecting the wall Mr Burt committed no actionable interference with Mrs Jones' rights. In the further alternative, Mr Cleanthi contends that even if by reason of his erection of the wall Mr Burt became liable to Mrs Jones for having interfered with her rights, he (Mr Cleanthi) is under no such liability.
Before Judge Simpkiss there were three issues: (1) had the rights in question been extinguished once and for all by the erection of the wall; and if not, (2) had there been an interference with those rights which was actionable at the suit of Mrs Jones against Mr Cleanthi, and (3) what relief (if any) should be granted on Mrs Jones' claim. On the first issue, Judge Simpkiss accepted Mr Cleanthi's case based on the existence of a statutory duty and held that the erection of the wall pursuant to the section 352 notice had extinguished the rights in question once and for all. Accordingly, it was not necessary for Judge Simpkiss to consider the other two issues. He did, however, observe that there would in any event have been a problem about granting injunctive relief in that since 1995 one of two shops on the ground floor of the building had been relet, and the current lessee was not a party to the action.
Accordingly, by his order dated 22 April 2005 Judge Simpkiss dismissed Mrs Jones' claim.
On Mrs Jones' appeal to the High Court, Bell J upheld Judge Simpkiss' decision on the first issue (extinguishment) . However, he went on to say that had he held that the rights had not been extinguished he would in any event have held that the fact that the wall was erected pursuant to a statutory duty was a good defence to Mrs Jones' claim; and that in those circumstances he would not have granted declaratory relief.
Mrs Jones now appeals to this court. Permission for a second appeal was granted by Jacob LJ on the papers on 14 February 2006.
I begin by turning to the relevant provisions of the 1985 Act, which are to be found in Part XI of the Act.
Part XI (which comprises sections 345 to 400) deals with houses in multiple occupation, that is to say (according to the amended definition) "house[s] which [are] occupied by persons who do not form a single household" (see section 345(1)) . It is common ground that the building at 41 Kings Road falls within this definition.
Part XI was substantially amended by the Local Government Act 1989 ("the 1989 Act") : see in particular section 165(1) (a) of the 1989 Act and Part III of Schedule 9 to that Act.
As originally enacted, section 352 gave a housing authority power to serve a works notice where a house in multiple occupation was defective as regards lighting, ventilation, water supply and other sanitary matters. The 1989 Act brought fire safety within the scope of section 352 for the first time.
The whole of Part XI was repealed with effect from 6 April 2006 by the Housing Act 2004, which substitutes a new regime of licensing for houses in multiple occupation with provisions for enforcement by way of improvement, prohibition and hazard awareness orders. However, the repeal of Part XI does not affect the issues which fall for decision in this case. For the purposes of this case, the relevant statutory provisions are to be found in Part XI of the 1985 Act as amended by the 1989 Act. Accordingly, references hereafter in this judgment to sections of the 1985 Act are references to those sections as amended by the 1989 Act.
I turn, then, to the relevant sections.
Sections 352 to 357 are headed: "Fitness for the number of occupants".
Section 352 provides as follows (so far as material) :
" 352 Power to require execution of works to render premises fit for a number of occupants
(1) Subject to section 365 the local housing authority may serve a notice under this section where, in the opinion of the authority, a house in multiple occupation fails to meet one or more of the requirements of paragraphs (a) to (e) of subsection (1A) and, having regard to the number of individuals or households or both for the time being accommodated on the premises, by reason of that failure the premises are not reasonably suitable for occupation by those individuals or households.
(1A) The requirements in respect of a house in multiple occupation referred to in subsection (1) are the following, that is to say –
….
(d) subject to section 365, there are adequate means of escape from fire; and
(e) there are adequate other fire precautions.
(2) …. the notice shall specify the works which in the opinion of the authority are required for rendering the house reasonably suitable –
(a) for occupation by the individuals and households for the time being accommodated there, or
(b) for a smaller number of individuals or households and the number of individuals or households, or both, which, in the opinion of the authority, the house could reasonably accommodate if the works were carried out
but the notice shall not specify any works to any premises outside the house.
(2A) ….
(3) The notice may be served –
(a) on the person having control of the house, or
(b) on the person managing the house;
and the authority shall inform any other person who is to their knowledge an owner, lessee, occupier or mortgagee of the house of the fact that the notice has been served
(4) The notice shall require the person on whom it is served to execute the words specified in the notice as follows, namely:
(a) to begin those works not later than a reasonable date …; and
(b) to complete those works within such reasonable period as is so specified.
(5) ….
(5A) A notice served under this section is a local land charge.
…."
Section 398(5) defines "person having control" as including the person who receives the rack-rent of the premises. Section 398(6) defines "person managing" as meaning (for present purposes) "the person who, being an owner or lessee of the premises … receives … rents or other payments from persons who are tenants of parts of the premises …". Section 398(3) defines "owner" as meaning "a person (other than a mortgagee not in possession) who is for the time being entitled to dispose of the freehold interest of the premises whether in possession or in reversion" and as including "a person holding or entitled to the rents and profits of the premises under a lease having an unexpired term exceeding three years".
A notice under section 352 must be in a prescribed form which informs the person on whom it is served of (among other things) the right of appeal conferred by section 353.
Section 353(2) (a) gives a person on whom a notice is served under section 352, or any person who is an owner, lessee of mortgagee of the premises to which the notice relates, a right of...
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