Trustees of the Dennis Rye Pension Fund and Another v Sheffield City Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD WOOLF, MR,LORD JUSTICE MORRITT,LORD JUSTICE PILL
Judgment Date31 July 1997
Judgment citation (vLex)[1997] EWCA Civ J0731-13
Date31 July 1997
Docket NumberQBENI 96/1538/E

[1997] EWCA Civ J0731-13

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(MR JUSTICE MANCE)

Royal Courts of Justice

Strand

London WC2

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Morrit

Lord Justice Pill

QBENI 96/1538/E

Dennis Rye, Colin Frederick Henson and J B Trustees Limited
Trustees of the Dennis Rye Pension Fund
Plaintiffs/Respondents
and
Sheffield City Council
Defendant/Appellant

and

Colin Frederick Henson and Dennis Rye
(The Trustees of the Dennis Rye 1992 Grandchildren Settlement Fund)
and
Sheffield City Council

MR A UNDERWOOD and MISS L GIOVANETTI (Instructed by) appeared on behalf of the Appellant.

MR I MCLAREN QC and MR T CRANFIELD (Instructed by) appeared on behalf of the Respondent

LORD WOOLF, MR
1

This appeal raises yet again issues as to the relationship between public and private law proceedings. It illustrates the fact that, despite the hopes to the contrary, a very substantial volume of the resources of the parties and the courts are still being consumed to little or no purpose over largely tactical issues as to whether the correct procedure has been adopted. This appeal is the third court and the fourth hearing to consider the issue in the present proceedings. I have little doubt that the amount of the costs already incurred far exceeds the sum in issue in the proceedings but the parties and the courts have yet to turn their attention to the merits of the dispute.

2

The appeal involves two separate actions raising identical issues. One is in respect of nine houses in relation to which the claim is for £67,147.28 and the other is in relation to three houses in respect of which the claim is for £31,846.77.

3

The claims against the Council are for sums which it is alleged are due by way of improvement grants for work done on the houses by the plaintiffs following the service of a repair note requiring work to be carried out to render the premises fit for human habitation under Section 189 of the Housing Act 1985.

4

The appeal follows two judgments of Mance J, the first dated the 6 th December 1995 and the second dated the 5th September 1996 on applications by the Council to strike out the plaintiff's claims under Order 18, r19 RSC and the inherent jurisdiction of the court. The grounds of the applications were that the proceedings disclosed no reasonable cause of action and are an abuse of the process of the court. The Council's argument in support of the applications is that if the plaintiffs have any grounds of complaint, (which the Council does not accept) then the only appropriate procedure is an application for judicial review and not an ordinary action.

5

The judgments of Mance J were in relation to an appeal from the decision of District Judge Lambert who struck out the claims. Mance J in his first judgment held that a local authority's refusal to pay improvement grants under the Housing Act 1989 was capable in appropriate circumstances of giving rise to private law rights which could be enforced by a writ action. Part of the reasoning of the judge for coming to this conclusion is summed up in this passage of his judgment:

"the application for and approval of a grant does, in my judgment, establish a one —to —one relationship which do have some contractual echoes. The local authority was thereby committing itself to pay the house or property owner upon the execution to its satisfaction of the specified works …..

A property owner has in these circumstances, in my judgment, a legitimate expectation arising from a relationship established by the grant application and its approval that the grant moneys will be paid if the work is duly executed within the specified period".

6

However the judge was of the view that the statements of claim failed on their face to demonstrate any real claim and stood over the final determination to enable the plaintiffs to amend their pleadings to make additional allegations. When the matter came back before him again, Mance J gave his second judgment. He dismissed the application to strike out save in regard to subsidiary allegations based upon an alleged estoppel. There is no cross appeal in relation to the last mentioned part of the judge's decision.

7

The Legislation

8

The relevant statutory provisions play a significant role in determining the outcome of this appeal. The Housing Act 1985 enables a repair notice to be served by a local housing authority. So far as relevant it states :

"Section 189(1) … Where the local housing authority are satisfied that a dwellinghouse… is unfit for human habitation… they shall serve a repair notice on the person having control of the dwellinghouse.

(2) A repair notice under this Section shall —

(a) Require the person on whom it is served to execute the works identified in the notice (which may be works of repair or improvement or both) and to begin those works not later than such reasonable date, being not earlier than the 28th day after the notice is served as is specified in the notice and to complete those works within such reasonable time as is specified …

(4) The notice becomes operative, if no appeal is brought, within the expiration of 21 days from the date of the service of the notice and is final and conclusive as to matters which could have been raised on an appeal."

9

The Local Government and Housing Act 1989 contains the provisions dealing with the payment of grants by the local housing authorities. Normally, where a repair notice has been served under Section 189 (1) of the Housing Act 1985 then Section 113 of the 1989 Act requires a grant to be paid. This is subject to the relevant provisions of the Housing Act 1989 which are as follows:

"S101 (1) In accordance with this Part, grants are payable by local housing authorities towards the costs of works required—

(a) For the improvement or repair of dwellings …

102 (1) No grant shall be paid unless an application for it is made to the local housing authority concerned in accordance with the provisions of this Part and is approved by them.

(2)An application for a grant shall be in writing and shall specify the premises to which it relates and contain …

(a) Particulars of the works in respect of which a grant is sought (in this Part referred to "the relevant works").

(b) Unless the local housing authority otherwise direct in any particular case, at least two estimates from different contractors of the cost of carrying out the relevant works.

(c) Particulars of any preliminary or ancillary service charges in respect of the cost of which the grant is also sought ; and

(d) Such other particulars as may be prescribed.

113(1) Subject to Section 112(3) and subsection (3) below, a local housing authority shall approve an application falling within Section 110 (1) above (in this section referred to as "a landlords application" if completion of the relevant works is necessary to comply with the notice or notices under one or more of the following provisions -

(a) Section 189 of the Housing Act 1985 (repair notice requiring works to render premises fit for human habitation).

(3) If, in the case of a landlord's application … the local housing authority consider that the relevant works include works ("the additional works") in addition to those necessary to comply with a notice under section 189…they shall treat the application -

(a)as an application to which this section applied in so far as it relates to works other than the additional works and

(b)as an application to which Section 115 below applies in so far as it relates to additional works.

115 —(1)Subject to the preceding provisions of this Part, a local housing authority may approve an application for a grant, other than a common parts grant, in any case where -

(a) the relevant works go beyond or are other than those which will cause the dwelling to be fit for human habitation but

(b) the authority are satisfied that the relevant works are necessary for one or more of the purposes set out in subsection (3) below.

(6) Subject to the preceding provisions of this Part, a local housing authority may approve an application falling within section 110(1) above (in this Section referred to as "landlord's application") if —

(a)the relevant works are for the purpose of rendering the dwelling or house to which the application relates fit for human habitation…and…the authority are satisfied that the relevant works are necessary for the purpose concerned.

S.116 —(1) A local housing authority shall, by notice in writing, notify an applicant for a grant as soon as reasonably practicable, and, in any event, not later than six months after the date of the application concerned, whether the application is approved or refused.

s.117 —(1) Where the local housing authority have approved an application for a grant, they shall pay the grant, subject to subsection (3) below and to sections 133 and 134 below.

(2) The grant may be paid

(a) in whole after completion of the eligible works, or

(b) in part by instalments as the works progress and the balance after completion of the works

(3) The payment of a grant, or part of a grant, is conditional upon —

(a) the eligible works or corresponding part of the works being executed to the satisfaction of the authority; and

(b) the authority being provided with an acceptable invoice, demand or receipt for payment for the works and any preliminary or ancillary services and charges in respect of which the grant or part of the grant is to be paid."

(4) For the purposes of subsection (3) above an invoice, demand or receipt is acceptable if it satisfies the authority and is not given by the applicant or a member of his family.

s.118 —(1) In approving an application for a...

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  • JUDICIAL REVIEW AND PUBLIC LAW: CHALLENGING THE PRECONCEPTIONS OF A TROUBLED TAXONOMY.
    • Australia
    • Melbourne University Law Review Vol. 41 Nbr. 2, December 2017
    • 1 December 2017
    ...Welsh counterpart. (159) Woolf, 'Judicial Review' (n 116) 231. (160) Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840, (161) R v Secretary of State for Employment: Ex parte Equal Opportunities Commission [1995] 1 AC 1,34. (162) It is also questionable whethe......

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