Wexler v Playle

LORD JUSTICE MORRIS: This matter concerns the rating of a flat on the second floor of a block of flats called Park Mansions in Prince of Wales Drive, Battorsea. The matter wont to the Local Valuation Court who gave their decision on the 9th October, 1957. There after the tenant, who is the appellant in this Court, gave a notice of appeal to the Lands Tribunal. That was on the 28th October, 1957. The Lands Tribunal heard the, appeal and gave their decision on the 12th December, 1958. There after by a notice dated the 21st January, 1959, the tenant, Mr Wexler, gave a notice requiring the Lands Tribunal to state a Case. Accordingly points of law are now raised for our consideration.

The flat is situated in a road Which runs along the south side of Battersea Park between Albert Bridge Road and Queenstown Road. The block of flats is at the junction of Albert Bridge Road and Prince of Wales Drive. The building is a substantial one and was erected about 60 years ago. There are no lifts in the building. The particular flat, which, as I have said, is on the second floor and is No. 13, contains a lounge, three bedrooms, a kitchen, dining room, bath room and separate water closet, the lounge and one bedroom overlooking the park. In 1934 the flat was lot at a yearly rent of £110, the landlord being responsible for rates, repairs, insurance and services. There after for a period the flat was vacant. That was between March 1935 and 1914. There was evidence which showed that the flat was vacant in June 1939. It was, however, later occupied end the appellant became tenant on the 24th October, 1948. Under his tenancy the landlord was responsible for rates, services, insurance and external repairs and the tenant was responsible for internal repairs.

How the rate able value: has to be arrived at by following the provisions of the Valuation for Rating Act, 1953.Section 2, sub-section 1 of that Act provides as follows: "For the purpose of making or altering the first valuation lists made after tile passing of this Act, the gross value for rating purposes of a hereditament which is either a dwelling house or a private garage or private storatge premises (as hereinafter defined respectively) shall not be ascertained by reference to the definition of gross value in Section 68 of the Rating and Valuation Act, 1925 (hereinafter in this Act referred to as the Act of 19251) or in Section 4 of the Valuation (Metropolis) that, 1869 (hereinafter in this Act referred to as 'the Act of 1869'), but shall be an amount equal to the rent specified in the next following sub-section". There follows a proviso which is not material for present purposes. Sub-section 2 is in these terms: The said rent is that at which the hereditament in question might reasonably have been expected on or about the thirtieth day of June, 1939, to let from year to year if the tenant had undertaken to pay all usual tenant's rates and taxes and if the landlord had undertaken to bear the cost of the repairs and insurance, and the other expenses, if any, necessary to maintain the hereditament in a state to command that rent". Then sub-section 3 is in these terms: "For the purposes of the last preceding sub-section it shall be assumed (a) that the hereditament was subsisting on and about the said thirtieth day of Juno in the state in which it actually subsists at the time of valuation". It is agreed that for present purposes the time of valuation was the 30th March, 1957. Then Sub-section 3(b) reads: "that the locality in which the hereditament is situated was en and about the said day in the same state, as respects the ether premises situated in that locality and (Subject to the next following sub-section) as respects the transport services and other facilities available to persons living or working in the locality, and as respects other matters affecting the amenities of the locality, as it is at the time of valuation", which again, as I have said, moans in this case the 30th March 1957.

Questions arose as to the way in which to value having regard to the provisions of those Sub-sections 2 and 3. Under sub-section 3 a point was taken by the tenant that there now exists in the park near his flat a fun fair which is open in the summer months and which attracts a number of people to the locality. It was contended by the appellant that if the conditions now obtaining were related to Juno 1939, the effect should be to diminish the gross and related values, The Valuation Officer was of the opinion that the gross value should be £77 with a rate able value of £58. When the matter wont to the Local Valuation Court the determination there was that the gross value should be £69 and the rate able value £51. On appeal, to the Lands Tribunal the decision was that the gross value should be r-educed to £65 and the rate able value to £48. A reduction was made by the Lands Tribunal because the view was taken that there were considerations arising out of the coming of the fun fair to Battersea Park which would diminish the amenity of the flat and should result in a reduction. Accordingly, the Lands Tribunal so decided, and having so decided, awarded costs of a stated amount to the appellant to be paid by each one of the two respondents, namely, the Valuation Officer and the Metropolitan Borough of Battorsoa. We are not concerned with that issue and no point of law arises.

The Decision of the Tribunal shows that evidence was given as to the state of the premises, the particular flat, in the month of October 1957. It is recited that a witness, Mr Arscott, giving evidence for the appellant, pub in a schedule of condition which had been compiled after an inspection of the flat made on the 8th October, 1057, and which showed that the flat was in poor decorative repair. He said that there were sundry cracks in the ceilings and in some of the walls, that the window francs required re-setting due to war damage, that there were patches of dampness in the kitchen coiling, presumably due to leakage from the flat above and that there was dampness in the kitchen wall, the hot water tank being defective and the stove apparently out of order. That witness, Mr Arscott, agreed that all those defects were repairable. The Decision also recites that the appellant himself gave evidence that in 1957 the water system was such that a sanitary notice had been served in respect of "wet, defective and perished condition of walls and coiling in kitchen; leaky condition of water tank", and he had said that; in 1156 and 1957 there was considerable inconsistency in the electricity supply. The Decision further records that the Valuation Officer had agreed that with regard to the flat itself decorating was needed, that the hot water tank required replacing, that there were defects in the window frames and that there were superficial cracks in the ceilings and walls; but he considered that all those matters permitted of repair' by the landlord. The decision of the Lands Tribunal I think proceeded on the basis that on the 30th March, 1957, that is to soy the time of valuation, there wore conditions of disrepair in the promises of the nature to which I have referred.

The Lands Tribunal arrived at their conclusion by looking at the 1934 rent and the flat and by looking at the rents of other second floor flats. The Tribunal came to the conclusion, having done so, that the starting figure should be £120. There was no doubt that certain adjustments then had to be made corning services and interior repairs, and having made those adjustments the figure would become one of £115 inclusive of rates. That was the decision of the lands Tribunal. If the deduction for rates was made, then the gross figure would be £75.

As I have indicated, the Lands Tribunal reduced that £75 to £65 because of the view taken concerning the change in amenities arising out of the coming of the Battersea fun fair. So that the Lands Tribunal, therefore, fixed £65 as the gross value and £48 as the rate able value.

There are non two main points of law which have been argued by Mr Glover for the appellant and which wore points that were taken, so far as they could be token, before the Lands Tribunal, The notice of appeal summarizes the points under four heads but the third of the four has not been argued before us. The first and second, which Mr Glover agrees can really be taken as one main point, reads as follows: "(1) That Section 2 or the Valuation for Rating Act, 1953, requires the hereditament to be valued in the state of repair in which it was at the time of valuation. (2) That the landlord's covenant under the said Section 2 is only to maintain the hereditament in the state of repair in which it was out the time of valuation". Mr Glover's argument runs as follows. He says that if reference is made to Section 2, sub-section 3(a), then there has to be the assumption that on the 30th June, 1939, or on or about that date, the hereditament was subsisting in the state in which it actually subsists at the time of valuation. The time or valuation was the 30th march, 1957, and Mr Glover says the evidence was sufficient to establish that there were curtain defects in the premises, or the kind to which I have referred,...