White v Barnet London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,LORD JUSTICE DILLON,LORD JUSTICE NICHOLLS |
| Judgment Date | 07 March 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0307-3 |
| Docket Number | 89/0217 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 1989 |
[1989] EWCA Civ J0307-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNET COUNTY COURT
(HIS HONOUR JUDGE ERIC STOCKDALE)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Dillon
Lord Justice Nicholls
89/0217
No.87 08065
MR G. N. HUSKINSON (instructed by the Solicitor, Town Hall, London, N.W.4) appeared on behalf of the Appellants.
MR N. YELL (instructed by Messrs. Osmond Gaunt Rose) appeared on behalf of the Respondent.
This is an appeal by the Borough of Barnet ("the Council") from a decision of Judge Eric Stockdale in the Watford County Court.
The respondent, Mrs Lilian White, had appealed to the County Court against a repair notice served upon her and others under the Housing Act 1985 ("the Act"). The matter was heard in the County Court without pleadings and upon agreed facts. Those facts were as follows:
(1) The repair notice. was in respect of a house ("the house") known as 17/17A Friern Park, London, N.12. The house has at all material times been a "house" for the purposes of Part IV of the Act.
(2) The Council has at all material times been the local housing authority within Part VI of the Act for the area which includes the house.
(3) At all material times:
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(a) the freehold of the house was vested in Allied Northern Tenures Ltd. ("ANTL);
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(b) the house comprised two residential flats, known as 17 and 17A Friern Park, together with certain common parts.
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(c) 17 Friern Park was held by Mrs D. Forsyth as a tenant of ANTL on a long lease at a low rent;
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(d) 17A Friern Park was held by Mrs White from ANTL as a statutory tenant under the Rent Act 1977. She pays the registered rent of £75 per month. The rateable value of the flat is £250 and the gross value £330.
(4) On or about 15th September 1987 the Council was satisfied that the house was in such a state of disrepair that, although it was not unfit for human habitation, substantial repairs were required to bring it to a reasonable standard, having regard to its age, character and locality.
Accordingly, on or about 5th September 1987 the Council served on ANTL, Mrs Forsyth and Mrs White a notice ("the notice") requiring them, within the period of 90 days ending on 14th December 1987, to execute specified works (being work of internal decorative repair). The notice Was served by the Council upon the basis that those three persons "constituted the person having control of the house" within the meaning of Sections 190 and 207 of the Act, and that, therefore, notice under Section 190 should be served on these three persons together.
Mrs White appealed to the County Court on the ground that she was "not the person having control of the house under Section 207 of the Housing Act 1985". Judge Stockdale allowed the appeal.
Section 190 of the Housing Act 1985 is as follows:
"Repair notice in respect of house in state of disrepair but not unfit.
"(1) Where the local housing authority—
(a) are satisfied that a house is in such a state of disrepair that, although not unfit for human habitation, substantial repairs are necessary to bring it up to a reasonable standard, having regard to its age, character and locality, or
(b) are satisfied that on a representation made by an occupying tenant that a house is in such a state of disrepair that, although not unfit for human habitation, its condition is such as to interfere materially with the personal comfort of the occupying tenant, they may serve a repair notice on the person having control of the house.
"(2) A repair notice under this section shall require the person on whom it is served, within such reasonable time, not being less than 21 days, as is specified in the notice, to execute the works specified in the notice, not being works of internal decorative repair.
"(3) The authority, in addition to serving the notice on the person having control of the house, may serve a copy of the notice on any other person having an interest in the house, whether as freeholder, mortgagee, lessee or otherwise.
"(4) The notice becomes operative, if no appeal is brought, on the expiry of 21 days from the date of service of the notice and is final and conclusive as to matters which could have been raised on an appeal.
"Section 207 provides that:—In this Part—'persons having control', in relation to premises, means the person who receives the rack-rent of the premises (that is to say, a rent which is not less than 2/3rds of the full net annual value of the premises), whether on his own account or as agent or trustee for another person, or who would so receive it if the house were let at such a rack-rent".
The Judge allowed Mrs White's appeal on the ground that the definition in Section 207 did not extend to a statutory tenant.
The definition in Section 207 is formulated, in the alternative, under two limbs. The person specified in the first limb is the person who receives the rack-rent of the premises. If there is no such person, one then goes to the second limb, that is to say, the person who would receive the rack-rent if the house was let at a rack-rent.
In the present case there is no person who comes within the first limb. No single rack-rent was payable in respect of the whole house at the date of the notice, and it is not suggested that the aggregate of the rents of Mrs Forsyth and Mrs White together constituted the amount of a rack-rent of the whole.
I come then to the second limb. In approaching the construction of the second limb, I take the law to be (a) that in order to achieve effective operation of the repair procedure contained in the Act, it must have been the intention of Parliament that there should always be a person or persons having control of the premises in question (see Pollway Nominees Ltd. v. Croydon London Borough Council (1987) A.C. 79 at p. 96 per Lord Mackay and per Lord Goff at p. 97); and (b) the person having control can be a composite person comprising more than one individual (see per Lord Bridge in the Pollway case at p. 95).
The Pollway case arose from the provisions of Section 39(2) of the Housing Act 1957, which was in the following terms:
"For the purposes of this Part of the Act, 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 the control of the house. In this subsection the expression 'rack-rent' means rent which is not less than two-thirds of the full net annual value of the house".
There is no material difference otherwise, for present purposes, between that section and Section 207 of the Housing Act 1985.
The respondent company in Pollway was the freehold owner of a block of flats known as Crown Point. The appellants were the local authority. Crown Point comprised 42 flats. Under an agreement for a lease granted by the respondent to an associated company, Halydene Limited, ten of the flats were let to Halydene Ltd. in 1979 on 99-year leases at a current annual rent of £50 per flat. These ten flats were occupied by tenants protected under the Rent Acts; they paid to Halydene Ltd. controlled rents amounting, in the aggregate, to about £10,000 per annum: they Were rack-rents (see (1986) Ch. at p. 206). The remaining 32 flats were occupied by lessees holding under long leases at low rents.
The local authority served on the respondent (the freeholder) a notice under Section 91A of the Housing Act 1957, requiring it to carry out repairs to Crown Point. The freeholder disputed the validity of the notice on the ground that the freeholder was not "the person having control" of Crown Point under the provisions of Section 39(2) of the Act of 1957. The House of Lords, affirming the decisions of the lower courts, held that the freeholder's objection succeeded.
The rentals of ten flats comprised in the letting to Halydene Ltd. and sub-let to statutory tenants were rack-rents. The rents of the remaining 32 flats were not rack-rents. None of the rack-rents payable by the occupiers of the flats was payable to the freeholder. The ground rents of the remaining 32 flats were small. There was, therefore, no question of the freeholder being the person in control under the first limb.
The argument for the local authority was that the freeholder, being the only person entitled to dispose of an interest in the entirety of Crown Point, must be the person who would receive the rack-rent of the block if it were let at rack-rent, and was therefore the person having control under the second limb.
The leading speech was given by Lord Bridge, and was concurred in by Lord Brandon of Oakbrook and Lord Brightman.
The House approved the approach of the Divisional Court in Truman, Hanbury, Buxton & Co. Ltd. v. Kerslake (1894) 2 Q.B. 774, which was a case arising under the Public Health (London) Act 1891, where the definition of "owner" in Section 141 was:
"..…the person for the time being receiving the rack-rent of the premises in connection with which the word is used, whether on his own account or as agent or trustee for any other person, or who would so receive the same if such premises were let at a rack-rent".
Kennedy J., in giving the judgment of the Divisional Court in the Truman, Hanbury, Buxton & Co. Ltd. case said, at pp. 778–9:
"In our opinion the Court of Quarter Sessions was wrong in holding the appellants to be 'owners' within the meaning of this enactment. It appears to us to be impossible to...
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