Quick v Taff Ely Borough Council

JurisdictionEngland & Wales
Judgment Date29 July 1985
Judgment citation (vLex)[1985] EWCA Civ J0729-9
Docket Number85/0488
CourtCourt of Appeal (Civil Division)
Date29 July 1985
Alan George Quick
Taff Ely Borough Council

[1985] EWCA Civ J0729-9


Lord Justice Lawton

Lord Justice Dillon

Lord Justice Neill






Royal Courts of Justice

MR. N. T. HAGUE Q.C. and MR. KEITH BUSH (instructed by Messrs. Phillips & Buck, Cardiff) appeared for the Appellants (Defendants).

MR. L. J. BLOM-COOPER Q.C. and MR. J. W. GASKELL (instructed by Messrs. Spicketts, Pontypridd, mid-Glamorgan) appeared for the Respondents (Plaintiffs).


This appeal, from a decision given by His Honour Judge Francis in the Pontypridd County Court on 2nd November 1984, raises, at any rate if His Honour was right in his decision, issues of very considerable importance to local authorities and to all others who are concerned with the extent of liability under a repairing covenant in a lease or tenancy agreement relating to a dwelling-house.


The appellants, who were the defendants in the action, are the Taff Ely Borough Council. They own various housing estates, including one at Rhydyfelin, the houses on which were constructed at the beginning of the 1970's in accordance with the standards of those times. One of those houses, known as 8 Shakespeare Rise, Rhydyfelin, was let by the Council in or about 1976 on a weekly tenancy to the plaintiff in the action, respondent to this appeal, Mr. Quick.


It is common ground that, under section 32(1) of the Housing Act 1961, there is to be implied in the tenancy agreement a covenant by the Council as lessor to keep in repair the structure and exterior of the dwelling house. Moreover, it is provided by subsection (3) of section 32 that, in determining the standard of repair required by the lessor's repairing covenant, regard is to be had to the age, character and prospective life of the dwelling house and the locality in which it is situated.


By his particulars of claim in the action the plaintiff claimed specific performance of that repairing covenant and damages for past breaches. His claims fell under two headings, condensation and water penetration. In this court we are only concerned with the claim in respect of condensation. So far as the water penetration is concerned, which came about because the frame at the head of the front door was damaged and the front door sill was defective, and also because there was a gap at sill level under the living room window, the Council accepts the findings of the judge and does not dispute its liability.


To understand the problem about condensation, it is necessary to say a bit more about the house. It is a quite small terraced house though, because of levels, the terrace is stepped. On the ground floor the front door leads into a hall, with stairs up to the first floor. To the left of the hall is the kitchen and at the back of the hall and kitchen, across the full width of the house, is the living room. There is a W.C. to the right of the front door. Upstairs there are three bedrooms and a bathroom. Most importantly, all the windows in the house are single-glazed with metal frames set in wooden window surrounds, and the lintols above the windows have no insulation material facing them; the lintols are, in fact, of concrete, though thought at the trial to have been metal, but nothing turns on any difference between metal and concrete. The house was fitted with central heating by a warm air ducted system.


The plaintiff lived in the house with his wife and four daughters. It is his misfortune that for the last five years he has been unemployed.


There is no doubt at all that there has for years been very severe condensation in the house, which has rendered the living conditions of the plaintiff and his family appalling. The house was redecorated by the Council shortly before the plaintiff became tenant, but the effects of condensation became soon apparent. There is uncontradicted evidence that the plaintiff complained again and again to the Council's officials about the condition of the house, but all his complaints were ignored and in the end he started this action.


The detailed evidence about the condensation and its causes was given by the plaintiff's architect, Mr. Pryce Thomas of Pontypridd. He wrote two reports of 24th January 1983 and 22nd December 1983 which were in evidence, and he also gave oral evidence at the trial which confirmed his reports. The Council called no evidence and the judge found Mr. Pryce Thomas to be an impressive and fair-minded expert witness whose evidence he accepted.


The evidence shows that there was severe condensation on the walls, windows and metal surfaces in all rooms of the house. Water had frequently to be wiped off the walls; paper peeled off the walls and ceilings, wood-work rotted, particularly inside and behind the fitted cupboards in the kitchen. Fungus or mould growth appeared in places and particularly in the two back bedrooms there was a persistent and offensive smell of damp. Among the places where there was mould growth were the wooden cills and surrounds of the windows in the bedrooms, and some of these have become rotten. Additionally, in the bedrooms condensation caused the nails used for fixing the ceiling plasterboard to sweat and, though it is not mentioned in the judge's judgment, there was some perishing of the plaster due to excessive moisture.


The condensation came about from the warm air of the environment in the rooms reaching the cold surfaces of the building. The moisture of the condensation was then absorbed by the atmosphere, and transferred to bedding, clothes and other fabrics which became mildewed and rotten. There was evidence that carpets and curtains had been ruined—but that in the living room and hall could well be attributable to the water penetration. There was evidence which the judge accepted that a three piece suite in the living room was ruined by damp so that it saelt and rotted and had to be thrown out. The evidence of the plaintiff and his wife was that, because of the appearance and smell, they hardly used the living room, took visitors to the kitchen and sent the children up to their parents' bedroom to watch T.V.


I would conclude that, by modern standards, the house was in winter, when, of course, the condensation was worst, virtually unfit for human habitation.


Mr. Pryce Thomas said that the condensation was caused by:

  • (a) cold bridging from the window lintols because there was no insulating material;

  • (b) sweating from the single glazed metal windows (and a wooden infill panel under the living room window) and

  • (c) inadequate heating both in respect of the system and by the occupier not maintaining a high enough thermostat setting.


He added that the problem was aggravated by the plaintiff's gas cooker and washing machine, presumably because these, when in use, would be sources of heat.


He said in his second report of December 1983 that, to "alleviate" the problems the property was experiencing, the existing metal windows should be replaced by windows with frames of warm material, such as timber or UPVC window frames, and the lintols over the windows should have insulation material facings. He added that, in his opinion, a new radiator system to all rooms, designed to give the proper standards to the various rooms, was necessary in place of the existing warm air system, which he regarded as "doubtful in being able to maintain normal accepted heating standards".


He made it clear, however, in the course of his evidence that the house was built in accordance with the regulations in force and standards accepted at the time it was built. He said that, when these houses were built, no-one realised the problems of cold bridging nor the inadequacy of central heating systems such as that which was installed in the house. Condensation had become more and more of a problem in recent years.


At the opening of the trial the plaintiff's counsel applied to amend the pleadings by claiming that the central heating system was defective, but the judge refused leave as the application was made too late and would involve a new case which the Council had not come prepared to meet. Accepting the evidence of the plaintiff and his wife and Mr. Pryce-Thomas, however, he held that the Council was in breach of its repairing covenant in respect of the condensation as well as the damp penetration. He therefore awarded the plaintiff a global sum for damages to cover both heads and he made an order for specific performance of the repairing covenant, which requires the Council, so far as the condensation is concerned, to replace the metal frame windows and face the lintols as recommended by Mr. Pryce-Thomas.


In the event, the order for specific performance is no longer required as the Council has rehoused the plaintiff and his family elsewhere since the trial. Mr. Blom-Cooper Q.C. for the plaintiff has accordingly suggested that, on any view, the order for specific performance should be discharged and be replaced by a declaration. There remains, however, a lis between the parties because of the award of damages. But the case is of an importance to the Council which is far beyond the award of damages because, as the judge surmised, his decision as to the effect of the repairing covenant in relation to this house will effect very many other houses on this and other Council estates. We are told by counsel for the Council that the total cost in respect of the Council's other houses of similarly replacing metal-framed windows with timber or UPVC framed windows and of facing the lintols with insulation material has been estimated as in the region of £9m.


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