Stanley v London Borough of Ealing (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON:,LORD JUSTICE MANTELL,LORD JUSTICE KENNEDY |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWCA Civ 679 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2003 |
| Docket Number | B2/2002/2775 |
[2003] EWCA Civ 679
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
lord Justice Kennedy
Lord Justice Mantell
Lord Justice Buxton
B2/2002/2775
MR O HYAMS (instructed by Robert Muckle of Newcastle upon Tyne) appeared on behalf of the Appellant
MR K RUTLEDGE (instructed by Legal Department, London Borough of Ealing) appeared on behalf of the Respondent
This appeal from a decision of His Honour Judge Marcus Edwards in the Brentford County Court concerns premises, as I will for the moment refer to them, at 5 Mount Avenue, Ealing in respect of which the local authority, Ealing Borough Council, the respondent to this appeal, has served various notices under Part XI of the Housing Act 1985.
The facts as to the nature of the building, said by the judge to be agreed facts, are set out at paragraphs 6 and 7 of his judgment which it is convenient to read. They are as follows:
"6. The original building was designed and constructed in the 1840s or 1850s as a dwelling house for a single family. It was and is a semi-detached property, comprising lower ground floor, ground floor, first floor, second floor, and attic.
7. The appellant is a qualified architect of 23 years' experience, who in the course of his career has been concerned in large construction projects and responsible for a number of high-profile developments. In 1990 he purchased No. 5 Mount Avenue with a view to developing it and then selling the building as a whole or by separate flats on long leases. He obtained full planning permission for the development, and in 1990/91 carried out the works. The flats comprise 11 self-contained flats, of which 6 flats are in the original building, 3 flats in a new side extension and 2 flats in the lower ground floor. The side extension with the 3 flats is structurally independent of the old building, in that it has structural walls on all sides and takes no support from the old building. Its external elevations are in keeping with those of the old building. However, the new structure does depend on the old building for access, which takes place through the front door and up the staircase of the old building. So a total of 9 units are accessed by the original entrance hallway and stairway. The remaining 2 units are comprised in the lower ground floor of the original building, extended at the rear. Each has a separate entrance. There is shared access to parking and the garden for all occupants."
The notices served by the local authority which give rise to these proceedings and to this appeal were served under Sections 352 and 372 of the Housing Act 1985. The Section 352 notice, in accordance with the terms of the section, requires the performance of works to render the premises fit for the number of inhabitants there to be found. The notice is extensive but it is summarised in its first schedule, which raises issues about facilities for the storage, cooking and the preparation of food, alleging that those were inadequate in the ways described; ventilation to parts of the property, equally described as inadequate; and means of escape from fire and other fire precautions, all said to be inadequate. It is not necessary further to particularise the details that were given.
Section 372 is concerned with works necessary to remedy neglectful management. Schedule 1 to the notice under that section sets out a series of respects in which it is alleged that the premises were not in accordance with regulations passed to implement the section. To summarise, the matters complained of included water supply and drainage, the repair of the common parts, the internal structure of the living accommodation, disrepair to windows and ventilation, an unsatisfactory fire escape route, accumulations of rubbish, lack of precautions for the safety of the residents and, possibly on a different level, the failure to display a notice in the premises (as required by Regulation 14) giving the name and address and way of contacting the manager of the premises.
Mr Stanley, the appellant, alleges that the extent of the works required by the local authority is not reasonable and necessary. That is a matter, as I understand it, yet to be determined. We are concerned, as was the judge, with a preliminary point. Section 372 applies to any house. Section 352 applies to houses in multiple occupation. Put shortly, it is the appellant's case that because of its arrangement and, more particularly, because of the division of the premises into self-contained units, 5 Mount Avenue is not a house for the purposes of this Act and by the same token is not a house in multiple occupation.
A house in multiple occupation is defined in Section 345 of the Housing Act 1985, a definition that extends to the whole of Part XI of the Act with which we are concerned. It reads as follows:
"(1) In this Part 'house in multiple occupation' means a house which is occupied by persons who do not form a single household.
(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 any reference in this Part to a flat in multiple occupation is a reference to a part of the building which, whether by virtue of this subsection or without regard to it, constitutes a house in multiple occupation."
That section is in its present form because the original Section 345 of the 1985 Act was amended in 1989 by Part III of Schedule 9 to the Local Government Act 1989. In the 1985 Act what is now Section 345 (1) stood alone as a single section. The amendment was to add to it, without altering the original text, what is now Section 345 (2). That amendment plays a significant part in the argument for the appellant before this court, as I shall in due course describe.
The appellant's complaint about his property being found to be a house in multiple occupation under Section 345 was not only because that definition is the gateway to the application of various of the restrictive and controlling provisions in Part XI of the Housing Act 1985 (in our present case those to be found in Section 352); but also because it was, in the appellant's view in evidence that he put before the judge, bad for the valuation of the property as a whole. It is necessary to refer to this point because of an argument in respect of the European Convention on Human Rights, to which I shall come at the end of this judgment. The judge described that part of the case in paragraph 4 of his judgment in the following terms:
"The appellant is concerned that the premises should not be held to be an HMO because if they were it would materially reduce the value of the freehold, I think he said, by about £500,000, from their present value of about £1.7 million. The reason for that, he says (and I have not heard evidence on the point) is that the premises would or might be registered as being an HMO, and HMOs are put in a lower category by the market, namely the same as that for lodging houses, hostels, guest houses and the like, whereas what he developed was more up market, namely a block of flats for respectable professional tenants."
I have already referred to the overall nature of these premises. It is necessary to say a little more about the argument advanced on behalf of the appellant. The judge said in paragraphs 17 and 18:
"17 The appellant says that the correct description is no longer a 'house' but a block of flats. That is what the conversion was designed to achieve, and did achieve. Conversion is, he says, the proper word: what was once a house is no longer a house. It is a block of flats. On the facts of this case, I can see how the property can reasonably be described as a block of flats but I do not agree that it is no longer a house.
18 The conversion was obviously substantial, but the conversion, looked at as a whole, still leaves the building as a house."
In the next paragraphs of the judgment the judge, building upon what he had already said about the internal arrangement of the property, and more particularly the need to pass through it in order to obtain access to each individual flat, explained why it was that he reached the conclusion that 5 Mount Avenue is a house: not merely (I would emphasise) by scrutinising its external appearance, but on the basis of full knowledge of its internal construction and division.
The claim is that, on a proper understanding of the Act and its history, these premises, 5 Mount Avenue, are not a house at all, because of the internal division into a number of separate properties. As Mr Hyams, who argued the case for the appellant, put it, it is not a house, it is 11 houses, each flat to be regarded as a house.
In my judgement, there is no justification for such an approach, either in the wording of Section 345 or of any other part of the statute. Before I come to that part of the argument which, in the event, was the principal case put by Mr Hyams, it is necessary to confront authority in this court that, in my judgement, is plainly against the contention that the appellant seeks to put forward. That authority is Okereke v Brent London Borough Council [1967] 1 QB 42. That was a case where a house built originally for occupation for one family had been converted into separate self-contained dwellings. The arrangement was not...
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