Patrick Nolan (Appellant v Leeds City Council (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE NICHOLLS,LORD JUSTICE FARQUHARSON |
| Judgment Date | 26 October 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1026-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 1990 |
| Docket Number | 90/0953 |
[1990] EWCA Civ J1026-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
(HIS HONOUR JUDGE BARR-YOUNG)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Nicholls
and
Lord Justice Farquharson
90/0953
Cases Nos. 8852383 and 8852172
MR. ANDREW ARDEN and MISS LINDA PEARCE (instructed by Mr. D.A. Ansbro, Department of Administration, Leeds City Council, Leeds, LS1 1UR) appeared on behalf of the Respondent (Appellant).
MR. CHARLES CROSS (instructed by Messrs. Bury & Walkers, Solicitors, Leeds, LS1 6AD) appeared on behalf of the Appellant (Respondent).
The Leeds City Council ("the Council") appeals to this court from a decision of His Honour Judge Barr-Young given in the Leeds County Court on 6th May 1989 on the hearing of a preliminary issue of law. That issue concerns appeals from the purported exercise of certain powers conferred on local housing authorities by the Housing Act 1985 ("the Act") relating to houses in multiple occupation. We have been told by counsel that the Act has recently been substantially amended, but that none of the amendments are material for the purposes of this appeal. I will proceed on that footing and refer to the relevant provisions of the Act in its original form.
Part XI of the Act conferred on local housing authorities a number of diverse powers relating to houses in multiple occupation. S.345 defines "house in multiple occupation" as meaning "a house which is occupied by persons who do not form a single household". What constitutes a household is question of fact and degree: see Simmons v. Pizzey [1979] A.C. 37.
S.352 empowers a local housing authority to serve a notice requiring the execution of works to render premises fit for a number of occupants if "in the opinion of the authority" certain specified conditions are satisfied in relation to a house in multiple occupation.
S.358 empowers a local housing authority in the case of a house in multiple occupation to serve an overcrowding notice, if "it appears to the local housing authority" that certain specified conditions are satisfied.
S.366 empowers a local housing authority, if it appears that certain specified conditions are satisfied in the case of a house in multiple occupation, to serve a notice requiring the execution of works to provide the necessary means of escape from fire.
S.370(1) provides:
"If it appears to the local housing authority that a house in multiple occupation is in an unsatisfactory state in consequence of failure to maintain proper standards of management and, accordingly, that it is necessary that the regulations made under section 369 should apply to the house, the authority may by order direct that those regulations shall so apply."
S.372(1) confers on a local housing authority which is of the opinion that the condition of a house to which an order under s.370 applied is defective in consequence of matters specified in the sub-section, the power to serve on the person managing the house a notice specifying the words "which, in the opinion of the authority are required to make good the neglect".
In the present case the Council served on the respondent, Mr. Nolan (together with another notice not material for present purposes), four notices dated 10th May 1988 concerning premises known as 30 Ash Road, Leeds. Three of them purported to be given respectively under ss.352, 366 and 372 and described the premises as being "a house occupied by persons who do not form a single household". The fourth was a notice of a purported order under s.370, and described the premises as being "a house in multiple occupation within the meaning of section 345".
Subsequently, the Council served on Mr. Nolan a fifth notice dated 8th June 1988 which purported to be given under s.358 and described the premises as being "in multiple occupation".
S.353 headed "Appeal against notice under s. 352" provides by sub-section (1) (inter alia) that a person on whom a notice is served under s. 352 may within a specified time limit "appeal to the county court". S.353(2) provides that "the appeal may be on any of the following grounds" and then states six grounds which are respectively set out in paragraphs (a) to (f). Ground (c) is:
"that there has been some informality, defect or error in, or in connection with, the notice."
S.353(3) provides:
"In so far as an appeal is based on the ground mentioned in subsection (2)(c), the court shall dismiss the appeal if it is satisfied that the informality, defect or error was not a material one."
S.362 headed "Appeal against overcrowding notice" provides by sub-section (1):
"A person aggrieved by an overcrowding notice may, within 21 days after the date of service of the notice, appeal to the county court, which may make such order either confirming, quashing or varying the notice as it thinks fit."
S.367 headed "Appeal against notice under section 366" provides by sub-section (1) (inter alia) that a person on whom a notice is served under s.366 may within a specified time limit "appeal to the county court". S.367(2) provides that "the appeal may be on any of the following grounds", and then states five grounds respectively set out in paragraphs (a) to (e). Ground (b) is:
"that there has been some informality, defect or error in, or in connection with, the notice."
S. 367 (3) contains a provision corresponding with s.353(3).
S.371 headed "Appeal against making of, or failure to revoke, order under s.370" provides by sub-section (1) (inter alia) that a person who is served with a copy of an order under s.370 may within a specified time limit "appeal to the county court on the ground that the making of the order was unnecessary".
S.373 headed "Appeal against notice under s.372" provides by sub-section (1) (inter alia) that a person on whom a notice is served under s.372 may within a specified time limit "appeal to the county court". S.373 (2) provides that "the appeal may be on any of the following grounds". Ground (b) is
"that there has been some informality, defect or error in or in connection with the notice."
S.373(3) contains a provision corresponding with s.353(3).
On 26th May 1988, Mr. Nolan gave notice of appeal to the county court of an appeal against the s.352, 366, 370 and 372 notices. Strictly, I think, the appeal should have been expressed to be from the s.370 Order, rather than from the notice given pursuant to that Order, but nothing turns on this point for present purposes. On 23rd June 1988, he gave notice of appeal to the county court against the s.358 notice.
In the case of each of the five appeals, one of the principal contentions which Mr. Nolan advanced in his notice of appeal was that the premises in question were not a house in multiple occupation and that the relevant notices or order were invalid for this reason. In reply to those grounds of appeal, the Council pleaded that the county court had no jurisdiction to determine that issue "and/or aver that to raise the said issue in these proceedings as opposed to an application by way of judicial review pursuant to R.S.C. Order 53 is contrary to public policy and/or is an abuse of process".
In these circumstances, on 26th August 1988, Mr. Registrar Gavin ordered that the following question and issue of law be tried as a preliminary issue before all other questions or issues in the appeal, namely
"Whether the County Court has jurisdiction to determine whether or not a property is a house in multiple occupation within the meaning of Sections 352, 358, 366, 370 and 372 of the Housing Act 1985 UPON the hearing of appeals under Sections 353, 362, 367, 371 and 373 of the said Act."
The essence of the argument advanced to the court below on behalf of the Council in answer to this preliminary issue was that Mr. Nolan's objection to the relevant notices and order amounted to a denial of the Council's power to issue or make them and that a challenge of this nature alleging ultra vires could only be raised by way of an application for judicial review. The judge rejected this argument, expressing his conclusions thus:
"I am not persuaded that the Appellant's challenge is to the vires of the original decision. Neither am I persuaded that even if the Appellant's challenge were to the vires of the original decision that such challenge should be made only by way of judicial review where, as in this case, the Appellant has a statutory right of appeal to the County Court available to him.
My determination of the preliminary issue is that the County Court does have jurisdiction in the matters stated save that in the case of an appeal under Section 371 against the making of an Order under Section 370, the jurisdiction of the County Court is limited to the issue as to whether 'the making of the Order was unnecessary.'"
The Council now appeals from that decision.
I should say at once that in so far as the judge held that Mr. Nolan's challenge was not to the powers of the Council to serve the relevant notices and make the relevant order, I respectfully disagree with him. Under ss. 352, 358, 366, 370 and 372 a number of matters are left to the opinion of the local housing authority. However, in each case the relevant powers are conferred in such manner that one condition must be satisfied as an objective fact before the powers are exercisable at all: (compare Wade's Administrative Law (6th Edition) at p. 281). That condition is that the property in question must be a house in multiple occupation. Thus, in...
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