R v Lambeth London Borough Council, ex parte Clayhope Properties Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,LORD JUSTICE GLIDEWELL,SIR GEORGE WALLER |
| Judgment Date | 11 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0611-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0566 |
| Date | 11 June 1987 |
[1987] EWCA Civ J0611-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST (MR. JUSTICE HODGSON)
Royal Courts of Justice
Lord Justice Kerr
Lord Justice Glidewell
and
Sir George Waller
87/0566
CO/687/85
In the Matter of an Application for Judicial Review
And In the Matter of a Determination Refused by the Mayor and Burgesses of the London Borough of Lambeth
MR. J.S. COLYER,Q.C. and MR. R.A. COOKE (instructed by Messrs. Bernstein & Co., Solicitors, London N16 5SR) appeared on behalf of the Applicants (Appellants)
MR. ANDREW ARDEN and MISS C. HUNTER (instructed by The Directorate of Administration and Legal Services, London Borough of Lambeth, London SW2 1RW) appeared on behalf of the Respondents (Respondents)
I have asked Lord Justice Glidewell to give the first judgment.
This is an appeal against a decision of Mr. Justice Hodgson given on 8th October 1986 refusing an application for judicial review; that is to say, refusing an order of mandamus requiring the Lambeth London Borough Council to make to the applicants, Clayhope Properties Limited, mandatory repairs grants under section 71A of the Housing Act 1974, amended by the Housing Act 1980.
Clayhope are the freehold owners of a mansion block of flats called Dover Mansions, Canterbury Crescent, S.W.9. The block comprises 20 flats, served by two entrances. 14 are held on 99-year leases at low ground rents; 6 are on protected tenancies. The roof and some common parts, including the passages and staircases, are not included in either the leases or the tenancies.
With that brief introduction I turn to consider the legislatio which forms the battleground of this appeal.
Part VII of the Housing Act 1974 empowers, and in some cases requires, local authorities to make grants for the improvement or repair of dwellings. Repair grants are mandatory if the provisions of section 71A of the 1974 Act are fulfilled, but otherwise they are discretionary. Lambeth's finances do not enable them to make discretionary grants.
Section 71A, so far as is material, reads as follows:
"In so far as an application for a repairs grant relates to the execution of works required by a notice under section 9 of the Housing Act 1957
…………………………………………………
(b) The authority shall not refuse it if it is duly made and the authority are satisfied that the works are necessary for compliance with the notice."
One comes, therefore, to section 9 of the Housing Act, 1957, which was in force at all times material to this appeal, though its provisions have now been replaced by similar, though not totally identical, provisions in the Housing Act of 1985. Section 9 is concerned, under the general rubric "Unfit premises capable of repair at reasonable cost" with the power of local authorities to require the repair of houses. Section 9(1) gives the local authority power to require the repair of a house which in their opinion is unfit for human habitation, provided it is not incapable of being made habitable at reasonable expense. This case is concerned with sub-section (1A), which was added by the Housing Act of 1969. The provides as follows:
"Where a local authority…. are satisfied that a house is in such a state of disrepair that, although it is not unfit for human habitation, substantial repairs are required to bring it up to a reasonable standard, having regard to its age, character and locality, they may serve upon the person having control of the house a notice requiring him, within such reasonable time, not being less than twenty-one days, as may be specified in the notice, to execute the works specified in the notice, not being works of internal decorative repair."
By sub-section (2):
"In addition to serving a notice under this section on the person having control of the house, the local authority may serve a copy of the notice on any other person having an interest in the house, whether as freeholder, mortgagee, lessee or otherwise".
By sub-section (3):
"In this and the three next following sections references to a house include a reference to a hut, tent, caravan or other temporary or moveable form of shelter which is used for human habitation…….".
I leave out the end of that sub-section, the provisions of which are not relevant in this case.
The phrase "person having the control of a house" is defined in section 39(2) of the Act as follows:
"For the purposes of this Part of this Act"—that is to say, Part II—"the person who receives the rack-rent of a house, whether on his own account or as agent or trustee for any other person, or who would so receive it if the house were let at a rack-rent, shall be deemed to be the person having control of the house. In this sub-section the expression 'rack-rent' means rent which is not less than two-thirds of the full net annual value of the house".
In the present case it is common ground that the 14 flats the subject of long leases, were not, and are not, let at rack-rent but if they were to be let at rents exceeding two-thirds of the full net annual value of the house, the person who would be entitle to receive that rent would in each case be the leaseholder.
The person having control of the house is thus, as far as the leasehold flats are concerned, the leaseholder. In respect of the 6 other flats, the subject of the controlled tenancies, it is Clayhope, because they do, or they did at the material time, receive rack-rents from their tenants.
What is a "house" for the purposes of this Act, or at any rate for the purposes of this Part of this Act? There are two references in the Act to what the word "house" can include. I have already read section 9(3), which does not apply. The other reference is in the interpretation section, section 189(1). That says:
"'house' includes—
(a) any yard, garden, outhouses, and appurtenances belonging thereto or usually enjoyed therewith".
(b) does not apply to Part II of the 1957 Act, but it should perhaps be read because it throws some light on the meaning of the word "house":
"(b) For the purposes of any provisions of this Act relating to the provision of housing accommodation, any part of a building which is occupied or intended to be occupied as a separate dwelling".
So for the purposes of another Part, a part of a building intended to be occupied as a separate dwelling is a house, but specifically not for the purposes of this Part of the Act.
If the premises are not a "house", nevertheless the provisions of Part II of the Act may apply, because there is another provision which so far I have not reached, namely section 18, which reads as follows:
"(1) A local authority may under the foregoing provisions of this Part of this Act take the like proceedings in relation to—
(a) any part of a building which is used, or is suitable for use, as a dwelling"
……………….
"as they are empowered to take in relation to a house….."
The qualification which follows again does not arise in the present case.
So if the premises are not a house, but are part of a building which is used, or which is suitable for use, as a dwelling—and for this purpose the building itself may be a building wholly or partly, or the rest of it not at all, in residential occupation -then that part is a part in respect of which the local authority may take the same sort of proceedings as they may take in respect of a house under the earlier parts of that Part of the Act, and thus may serve a section 9 (1A) repairs notice. Indeed, as I shall say later, although the question whether each of these flats is a house is a, if not the, major issue in this appeal, if the answer is "No, each flat is not a house", it is common ground that each flat is certainly a part of a building used as a dwelling, and section 9(1A) repairs notices can properly be served in respect of each flat.
There are two other provisions of the Act of 1957 to which I should refer before I come briefly to the facts. If a repairs notice is served, under section 11 there is a right of appeal against it. Section 11(1) reads:
"Any person aggrieved by
(a) a notice under the foregoing provisions of this Part of this Act requiring the execution of works
……
may, within twenty-one days of the service of the notice, demand or order, appeal to the county court….."
By sub-section (3), which I can summarise, on an appeal to the county court the judge may either confirm or quash or vary the notice as he thinks fit. So he has, as it seems to me, total discretion to arrive at whatever conclusion he thinks right in all the circumstances; he might quash the notice or he might say that the notice should be varied by deleting some of the works required to be done.
Finally, under section 37(1):
"Any notice, demand or order against which an appeal might be brought to a county court under this Part of this Act shall, if no such appeal is brought, become operative on the expiration of twenty-one days from the date of the service of the notice, demand or order, and shall be final and conclusive as to any matters which could have been raised on such an appeal….."
I turn now to the history. In May 1981 Lambeth London Borough Council served a notice on Clayhope under section 9(1A) in respect of repairs to the whole block. The council did so on the basis that Dover Mansions as an entity was a "house" within Part II of the Act. Clayhope appealed to the county court. That appeal stands adjourned and has not yet been...
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