Victoria Square Property Company Ltd v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BRIDGE,LORD JUSTICE WALLER |
| Judgment Date | 11 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1111-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 November 1977 |
[1977] EWCA Civ J1111-8
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from Order of His Honour Judge McDonnell - Lambeth County Court)
Lord Justice Megaw
Lord Justice Bridge and
Lord Justice Waller
In the Matter of the Housing Act 1957
And In the Matter of No. 37 Landells Road, London, S.E. 22:
Mr. ANTHONY SCRIVENER, Q.C. and Mr. WILLIAM BIRTLES (instructed by Mr. J.B. Parker, Deputy Town Clerk, London Borough of Southwark) appeared on behalf of the Appellants (Respondents).
Mr. RICHARD FAWLS (instructed by Messrs. Stafford Clark & Co.) appeared on behalf of the Respondents (Appellants).
I shall ask Lord Justice Bridge to deliver the first judgment.
This is an appeal by the London Borough of Southwark ("the local authority") from an order of His Honour Judge McDonnell made in the Lambeth County Court on the 20th May, 1977, the effect of which was to quash a notice of determination to purchase from Victoria Square Property Co. Ltd. ("the owners") a three-bedroom terrace house, No. 37 Landells Road, S.E. 22. The purchase notice had been served by the local authority pursuant to section 17 (2) and section 19 of the Housing Act, 1957. The owners appealed to the County Cornet under section 20. On the hearing of that appeal the County Court judge made the order against which appeal is now brought to this Court.
To understand the history of the litigation between the parties it is necessary first to consider the general scheme of Part II of the Act of 1957 and to set out the particular provisions upon which the decision of this appeal turns. The heading of Part II is "Provisions for Securing the Repair Maintenance and Sanitary Condition of Houses". Section 4 prescribes a statutory standard of fitness for human habitation of dwelling-houses. Section 6 provides that on the letting of certain classes of house, within which the house in question in this case falls, there shall be implied a statutory condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept 'by the landlord during the tenancy, fit for human habitation. The main provisions of Part II impose on a local authority a statutory obligation to deal with houses in their area found to be unfit for human habitation in one or other of two ways. The first procedure is that contained in the fasciculus of sections 9 to 15. These sections are headed "Unfit premises capable of repair at reasonable cost".The procedure which they embody may conveniently be called the rehabilitation procedure, since the object is that houses to which the procedure is applied shall be repaired to the appropriate standard of fitness for human habitation. The alternative procedure is that contained in the fasciculus of sections 16 to 32 which are headed "Unfit premises beyond repair at reasonable cost". This procedure may appropriately be called the demolition procedure, since demolition of the unfit houses to which the procedure is applied will be the normal end result.
The rehabilitation procedure begins with the service of a notice upon the owner of the house in question requiring him to carry out such works of repair as the notice specifies in order to restore the premises to a condition of fitness. The recipient of the notice can appeal to the County Court against it under section 11 on the ground, inter alia, that the house is not capable of being rendered fit for human habitation at a reasonable expense. If the judge allows an appeal against a section 9 notice, he is required, if requested by the local authority so to do, to make a finding whether the house can or cannot be rendered fit for human habitation at a reasonable expense: section 11 (3). If the judge has made a finding that the house cannot be rendered fit for human habitation at a reasonable expense, but the local authority are still of the opinion that repair of the house to restore it to a state of fitness is an appropriate course, they are empowered under section 12 to purchase the house either by agreement or compulsorily. The compensation to the owner upon such an acquisition is the site value of the property. Having effected such an acquisition the local authority are obliged by section 12 (3) themselves to carry out the works specified in their notice under section 9 as necessary to restore the house to a condition of fitness for human habitation.
The alternative demolition procedure begins under section 16.The important provisions are the following.
Section 16 (1): "Where a local authority, on consideration of an official representation, or a report from any of their officers, or other information in their possession, are satisfied that any house - (a) is unfit for human habitation, and (b) is not capable at a reasonable expense of being rendered so fit, they shall serve upon" any person interested in the house "notice of the time….and place at which the condition of the house and any offer with respect to the carrying out of works, or the future user of the house, which he may wish to submit will be considered by them".
Section 16 (3) enacts formal requirements with respect to any offer to carry out works to the house.
Section 16 (4): "The local authority may if, after consultation with any owner or mortgagee, they think fit so to do, accept an undertaking from him, either that he will within a specified period carry out such works as will in the opinion of the authority render the house fit for human habitation, or that it shall not be used for human habitation until the authority, on being satisfied that it has been rendered fit for that purpose, cancel the undertaking.
"(5) Nothing in [the Rent Act, 1968] shall prevent possession being obtained of any premises by any owner thereof in a case where an undertaking has been given under this section that those premises shall not be used for human habitation".
Section 17 (1): "If no such undertaking as is mentioned in the last foregoing section is accepted by the local authority, or if, in a case where they have accepted such an undertaking - (a) any work to which the undertaking relates is not carried out within the specified period, or (b) the premises are at any time used in contravention of the terms of the undertaking, then subject to the provisions of this section, the local authority shall forthwith make a demolition order for the demolition of the premises to which the"notice given under the last foregoing section relates". The proviso authorises the making of a closing order instead of a demolition order in certain cases.
"(2) Where a local authority would under the foregoing subsection be required to make a demolition or closing order in respect of a house they may, if it appears to them that the house is or can be rendered capable of providing accommodation which is adequate for the time being, purchase the house instead of making a demolition or closing order".
Section 19 provides for service of notice of a determination to purchase.
Section 20 gives a right of appeal to the county court against such a notice.
Section 20 (3): "On an appeal to the county court under this section the judge may make such order either confirming or quashing or varying the order or notice as he thinks fit and may, if he thinks fit, accept from an appellant any such undertaking as might have been accepted by the local authority, and any undertaking so accepted by the judge shall have the like effect as if it had been given to and accepted by the local authority under this Part of this Act".
Section 29 sub-sections (1) and (2) authorise acquisition of a house pursuant to a purchase notice, by agreement or compulsorily at site value.
Section 29 (3): "A local authority by whom a house is purchased under this section may carry out such works as may from time to time be required for rendering and keeping it capable of providing accommodation of a standard which is adequate for the time being pending its demolition by the authority.
"(4) In respect of any house purchased under this section the local authority shall have the like powers as they have in respectof houses provided under Part V of this Act, and section six of this Act shall not apply to a contract for the letting by a local authority of any such house".
The history of the dispute between the local authority and the owners in this case begins with the service of a notice under section 9 of the Act of 1957 dated the 26th June, 1975, requiring them to carry out an extensive schedule of works to the house. The owners appealed to the County Court against this notice upon the ground, inter alia, that the premises were not capable of being rendered fit for human habitation at a reasonable expense. On the 17th October, 1975, in the Lambeth County Court, Her Honour Judge Cooper allowed that appeal and quashed the section 9 notice. It is not wholly clear, but it would seem a probable inference that her ground for so doing was that the owners had succeeded in establishing the ground referred to. The local authority decided to proceed by way of acquisition under section 12 of the Act and themselves to carry out the scheduled works. There being no purchase by agreement, on the 24th February, 1976, the local authority made a compulsory purchase order. They then appreciated that they had not obtained from Judge Cooper at the hearing of the appeal an express finding under section 11 (3) that the premises were not capable of being rendered fit for human habitation at a reasonable expense. Such a finding was a necessary foundation to support the compulsory purchase order they had made. Accordingly the local...
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