Housing Act 1957 as amended, section 9(1A)–Notice by local authority requiring execution of works of repair to bring house up to a reasonable standard–Appeal by local authority against decision of county court judge on a preliminary point quashing notice on the ground that it lacked sufficient particularity–Criticism by county court judge of phrases such as ‘thoroughly overhaul main roof,’ ‘properly examine’ and ‘as necessary’–Held that county court judge went too far in requiring precision–The notice contained sufficient particularity to enable the owner to obtain a costing for the work from a reasonable builder–The phrases criticised by the judge were not in fact vague and uncertain when read in their contexts–Appeal allowed, notice restored and case remitted to be considered by another county court judge
This was an
appeal by the London Borough of Camden from a decision of Deputy Judge Holden
at Bloomsbury and Marylebone County Court quashing a notice under section 9(1A)
of the Housing Act 1957 requiring works of repair to a dwelling-house at 162
Arlington Road, London NW1. The respondents in the Court of Appeal were the
Church of Our Lady of Hal, the owners of the property, and Kennedy &
Dunphy, the managing agents.
A F B
Scrivener QC and G C Stephenson (instructed by F Nickson, town clerk, Camden)
appeared on behalf of the appellant local authority: P B Mauleverer (instructed
by Farrer & Co) represented the respondents.
Giving the
first judgment at the invitation of Stephenson LJ, OLIVER LJ said: In this
appeal the appellant is the local authority of the London Borough of Camden and
the respondents to the present appeal, who were the appellants in the court
below, are the Church of Our Lady of Hal. They are the freeholders: Kennedy
& Dunphy were their managing agents, managing a dwelling-house, among other
properties, known as 162 Arlington Road, London NW1.
The appeal is
from a decision given on November 16 1978 by Deputy Judge Holden in the
Marylebone County Court. It was a decision by which the learned deputy judge
quashed a notice which had been served by the local authority upon the present
respondents (the appellants in the court below) under section 9(1A) of the
Housing Act of 1957. That was a section which was introduced by the Housing Act
of 1969 and it is in these terms. Before reading it perhaps I should say
that it forms part of, and is supplementary to, a section which enabled the
local authority, upon being satisfied that a particular dwelling-house was
unfit for habitation, to serve a notice requiring the person having control of
the house to put it in a proper state of repair.
Section 9(1A)
reads as follows:
Where a local
authority, upon consideration of an official representation, or a report from
any of their officers or other information in their possession, are satisfied
that a house is in such state of disrepair that, although it is not unfit for
human habitation, substantial repairs are required to bring it up to a
reasonable standard, having regard to its age, character and locality, they may
serve upon the person having control of the house a notice requiring him,
within such reasonable time, not being less than twenty-one days, as may be
specified in the notice, to execute the works specified in the notice, not
being works of internal decorative repair.
As one would
expect, the statute gives to the person served with a notice a right to appeal
to the court, and that one finds in section 11 which provides:
Any person
aggrieved by–
(a) a notice under the foregoing provisions of
this Part of this Act requiring the execution of works . . . may, within
twenty-one days of the service of the notice, demand or order, appeal to the
county court within the jurisdiction of which the premises to which the notice,
demand or order relates are situate, and no proceedings shall be taken by the
local authority to enforce any notice, demand or order in relation to which an
appeal is brought before the appeal has been finally determined.
Subsection (3)
is the important one in the present context and that reads as follows:
On an appeal
to the county court under this section the judge may make such order either
confirming or quashing or varying the notice, demand or order as he thinks fit
and where the judge allows an appeal against a notice under section 9(1) of
this Act requiring the execution of works to a house, he shall, if requested by
the local authority so to do, include in his judgment a finding whether the
house can or cannot be rendered fit for human habitation at a reasonable
expense.
In the instant
case the local authority served notice on the freeholders and their agents on
August 4 1978 and that was a notice in statutory form which specified that the
council were satisfied that the particular premises, 162 Arlington Road,
although not unfit for human habitation, were in such a state of disrepair that
substantial repairs were required and that pursuant to the appropriate section
of the Housing Act they required the freeholders, within a period of 100 days
ending on November 15 1978, to execute the following works, not being works of
internal decorative repair, namely: and then there is a reference to ‘See
Schedule Attached.’ There was a lengthy
schedule attached to the notice to which I shall have to refer in rather more
detail a little later.
The
freeholders and their agents appealed to the county court on the ground that it
was not practical to carry out the required works at reasonable expense; that
‘the works specified in the notice are unreasonable and excessive in character
or extent,’ and that they were aggrieved by the notice. That appeal was heard
on November 16 before Deputy Judge Holden.
There was
clearly going to be a contest between surveyors as to how much work was
necessary, and so on, but the point was taken at an early stage in the hearing
that the notice against which the appeal was launched was not a proper notice
because it was too vague and indeterminate and did not sufficiently specify the
work which had to be carried out. That matter, by consent, was dealt with by
the deputy judge as a preliminary point. The schedule to which exceptions were
taken by the appellants (the respondents to this appeal) was one which was
compiled, so we understand, by the use of pro forma forms which are kept by
local authorities and which form a convenient reference point for the
preparation of schedules of this type. They are apparently roneoed sheets and
they contain a common form of description of works to be done so that when the
surveyor inspects the premises and notes that there is a defect in a particular
part of the house, for instance in the sash windows, or something of that sort,
he can make a note of it in his book, and then, when he returns to his office,
the appropriate form dealing with sash windows is taken out and the formula
which is contained in that form is then incorporated in the schedule. This is
done, certainly by this authority and I think by a large number of authorities,
and is no doubt an extremely convenient practice from the local authority’s
point of view because it saves a good deal of time.
The learned
deputy judge arrived at the conclusion that the schedule in this case was too
vague and put too much of a burden on the house-owner to determine, or did not
sufficiently specify, the work which was required to be done and on that ground
he quashed the notice. The present case is of some importance to local
authorities generally because of the criticisms that were levelled against the
notice by the learned deputy judge.
In his
judgment the learned deputy judge says (and no exception is taken to this):
I have to
consider the schedule and take a commonsense view. There must be a sufficient
degree of particularity.
He then
continues:
The owners
must know precisely what they have to do otherwise difficult consequences might
arise, particularly where there is a difference of opinion as to what works are
required and particularly as the local authority have the right to take further
steps if they say the work has not been done right in the first place. In my
judgment the schedule is not satisfactory at all. The fact is that looking at
the schedule it is ambiguous. For example in paragraph 2 of the schedule it
says: ‘thoroughly overhaul the main roof.’
What does that mean? It could
mean a lot or a little. The words ‘as necessary’ appear in a number of places.
In paragraph 9 it says: ‘Properly examine.’
What does that mean? The same
applies to ‘renew where necessary.’
Those words place a very substantial onus on the owner who has to use
his own judgment. Since presumably there had been a proper inspection prior to
the drawing up of the schedule, then if a certain specific drainpipe needed
repairing this could and should be specified. The schedule also refers to
internal decorations but section 11(3) says one can vary the notice in that
respect.
Clearly he was
not treating that as a matter which required him to quash the notice. He
concluded:
Having
considered the matter very carefully I take the view that the notice is vague.
I understand that the local authority have a practice to produce schedules of
this nature. I hope this judgment does not cause embarrassment; but it is only
fair and reasonable to expect reasonable particularity.
Therefore, on
that ground he was in the appellants’ favour on the preliminary point and
ordered that the notice be quashed.
We have been
taken through the schedule in some detail by Mr Scrivener, who appeared for the
local authority in this court, and it does appear that the learned deputy
judge, I think it right to say, misdirected himself in respect of certain
points upon it, some of which he clearly misunderstood. For instance, it will
have been observed that in the course of his judgment he levelled some
criticism against an expression which is used in paragraph 2 of the schedule,
‘thoroughly overhaul main roof,’ and also against the use of the expression ‘as
necessary,’ because, he said, that put upon the owner the burden of deciding
what work was required and whether it was necessary or not. But when one reads
the schedule fairly it seems to me that a great deal of the criticism, if in
fact not all of it, is misconceived.
The particular
paragraph relating to the roof reads as follows:
Thoroughly
overhaul the main roof. Clean out and examine the parapet gutters and replace
or renew as necessary. Take off and renew all defective, slipped and missing
slates. Hack out all cracked and missing fillets abutting the roof and properly
renew. Properly make good the roof timbers as necessary. Renew any defective
soakers or flashings.
Clearly the
bulk of that paragraph is simply further and better particulars of the
principal expression ‘thoroughly overhaul the main roof.’ I think the learned deputy judge’s criticism
of that expression was misconceived.
When one comes
to look at the use of the words ‘as necessary’ to which the learned deputy
judge adverted, one finds that in the context in which it is used it has a
perfectly intelligible meaning: for instance, there is a reference in paragraph
8 to ‘Make good to pointing for 4 ft around ground floor/first floor staircase
back window and as necessary elsewhere.’
It does not seem to me that that is too vague. This is referring to the
rear elevation. It does not appear to me that an unnecessary burden is being
placed upon the building owner. There is a particular piece of pointing that
has been indicated as requiring attention and there is no great burden in
looking at the rear elevation and seeing what other parts require repointing.
It cannot be right that the local authority should have to undertake the burden
of indicating precisely between which bricks the pointing has to be renewed.
In paragraph 9
the schedule reads:
Properly
examine waste pipe, soil vent pipe and rainwater pipe. Renew where necessary
and make good to all joints, using appropriate jointing materials.
Again, the
attention of the building owner, or his builder, is directed to what he has to
do and although it does not specify precisely what work is required, or each
waste pipe or soil pipe which is defective, it indicates, I should have
thought, with sufficient precision the defects that he has to look for and
rectify.
Again, in
paragraph 11 one finds a reference to ‘hacking off defective plaster to the
walls of the external water closet.’ In
continues: ‘Properly replaster walls. Generally make good as necessary.’ Quite clearly the words ‘as necessary’ there
are used in the context of making good any damage which is incurred as a result
of doing the work which is required.
The expression
appears with the greatest frequency in relation to window sashes and I will
read the formula which is taken in standard form and appears to be repeated in
relation to windows in virtually every room in the house:
Windows–overhaul the window woodwork and sashes, renew any defective and
rotted timber to the sashes, frames and sills. Renew any badly worn and
defective sashes, broken sash cords, catches, glass and beading. Ease and
adjust the sashes and weights as necessary and leave in sound working order on
completion.
Quite clearly
the words ‘as necessary’ here relate to the work which has to be done to leave
the window sashes in sound working order and it does not seem to me that there
is any vagueness about that. As I see it, it is perfectly clear what the owner
has to do. He has to inspect the window, make sure it is in working order and
replace any defective or rotted timber which he finds on his inspection.
Similarly one finds the same expression in relation to door frames, where the
schedule requires doors to be replaced and rehung.
There are also
references to suitably redecorating the walls, which the learned deputy judge
considered to be work of internal decorative repair and which I think he felt
ought to be expunged from the notice on the ground that it was work which was
not proper to be included in the schedule. I do not wish to express any
concluded opinion about that, although it does seem to be that in the schedule
here the redecoration, wherever it is referred to, is relating solely to
redecoration after doing work of internal repair, such as replacing plaster.
Mr Mauleverer
has sought to uphold the learned deputy judge’s decision on this ground. He
says that it is not right that in a statutory jurisdiction of this sort, where
the local authority is seeking to impose upon the owner of the property an
obligation under the statute, the local authority should be entitled to cast
upon the building owner a substantial burden of deciding what is necessary and
exercising a discretion as to whether work should be carried out. It is for the
local authority to specify the work that it requires and there is nothing in
the statute which enables it to impose on the owner an obligation of deciding
what work should be done. As he puts it, a balance must be struck between the
public interest, maintaining housing stock, and the interest of the owner. In
principle I do not think I would dissent from that as a proposition, but I am
doubtful of its application in the present case.
Mr Scrivener
has submitted to us that there are certain criteria here which can be
established. First of all, that the notice should be one which contains
sufficient information in its schedule to enable the building owner to have the
work costed out by a reasonably competent builder, and in my judgment that is
right. I accept that submission. It seems to me that that is a good criterion
and in fact this schedule does comply with that. Mr Scrivener submits that
there is no objection to the use of the words ‘as necessary’ in describing
works where the work described is either (a) ancillary to or consequential on
other work or, (b) it is a matter of judgment for the builder to decide what
work will be necessary to be carried out in relation to defects which have been
pointed out.
Our attention
has been drawn to the judgment of Maugham J, as he then was, in Cohen v West
Ham Corporation [1933] Ch 814, which is a decision under section 17 of the
Housing Act 1930, one of the predecessors of the present legislation, and where
the essential question raised was whether, in that particular case, the notice
not having been appealed against, the work which it was said ought to have been
done, had been insufficiently specified. Although the case is not directly in
point, there is a passage from the judgment of Maugham J which is helpful in
the present context. He says this at p 827:
There is
another point which arises upon the notice. As I have stated, the notices
require walls to be taken down and rebuilt ‘where necessary.’ Mr Montgomery, for the council, asks me to believe
that that is a common form. The plaintiff, on the other hand, has called one
witness, an architect of experience, who does not think it is a common form
although it may not be very unusual. Mr Montgomery contends that the form of
the notice shows that some part of the walls in question certainly must be
taken down and rebuilt. He has to admit that no part is specified. He excuses
the form of the notice by stating, as no doubt is true, that it is impossible
exactly to state the area of a wall which may have to be taken down, because,
as soon as the wall is tampered with to correct the defect, it may well be
found that much more of it has to be taken down and rebuilt than was apparent
before the work was begun. So far as I can properly express an opinion, I agree
with that: I think it is true; but it does not follow that the notice cannot
specify with reasonable clearness what portion of the wall it is necessary to
begin to deal with for the purpose of putting right the defect. It is possible
to specify that it is necessary to rebuild the wall at a particular angle of
the building, or the wall above the string course, or the wall from the ground
level, or the eastern portion of the building, or the part of the building
where there is a bulge in the wall, or that part of the building which is out
of the true to a particular extent. All those things can be specified.
The question
I have to determine is whether the notices in this form make it absolutely
necessary for the person on whom they are served, or other responsible person,
to take down some portion of the wall without telling him which portion. To my
mind the proper view is that the notices require him to take down and rebuild
only such part of the walls, if any, as it is necessary to rebuild. If it were
not so it would be a great hardship upon the owner of a building to tell him,
at the risk of very serious consequences, to do ‘something’; and it seems to me
that he is entitled to be told what it is that he must do. It seems to me that
a notice to rebuild such part of a wall as may be necessary or to rebuild a
wall where necessary, leaves it open to him to say, on examination with the
assistance of a builder or an architect, that it is not necessary to take down
and rebuild any part of the wall, and that another step will be sufficient.
So that in a
sense, as Mr Scrivener points out, a notice in that form is something which is
for the benefit of the building
works are, or are not, necessary.
Mr Scrivener’s
third proposition is that only in very rare cases where the content of the
notice is so vague that the owner cannot know what the cost of repairs would be
with regard to the major requirements of the notice, should the court exercise
its undoubted power to quash a notice without evidence. Again, I accept that
submission. I think that is right although in the instant case one has to bear
in mind that the learned deputy judge was invited to take the course of
deciding this as a preliminary point by consent of both parties.
Finally, Mr
Scrivener submits that in all cases, when deciding whether to quash without
hearing, the court should consider whether the defects could be cured by
varying the notice under the power contained in section 11. It will be
remembered that subsection (3) confers a wide discretion on the judge to make
such order either confirming or quashing or varying the notice as he thinks
fit.
One is always
reluctant to interfere with the exercise of the discretion by the judge at
first instance unless it appears clear that he has exercised it upon wrong
principles or has taken into account matters which are not proper to be taken
into account, but in the instant case I think it is clear that the learned
judge, in approaching the question, was guilty of some misconstruction of the
schedule and in my judgment the misconstruction was sufficiently serious as to
lead him to what, in my opinion, is the wrong conclusion. I think that a
schedule in this form is one which does sufficiently specify the work which is
to be carried out. It is inevitable that in a schedule of this sort there must
be a certain area where there is bound to be room for disagreement between a
local authority and the surveyor of a building owner as to whether the
particular work is necessary and the degree of the work that has to be done.
There must be inevitably an area in which an owner required to do work must be
called upon to exercise some judgment as to the extent of the work to be done
and what is necessary. That seems to me to be inevitable. In the circumstances
of this case it does not appear to me that the notice is, as the learned deputy
judge said, so vague as to justify the course which he took in quashing it.
I take
particular issue with the statement by the learned judge that the owner must
know precisely what he has to do. I think that is putting the matter too high.
It seems to me that the local authority must show the owner with reasonable
precision what he has to do, but to dot every ‘i’ and cross every ‘t’ would, I
think, be impracticable and would, no doubt, result in an impossibly heavy
burden upon local authorities and enormous expense in the surveying costs which
they would be obliged to incur in preparing schedules of this sort.
The other
matter to which I ought to refer is this, that the learned judge criticised the
schedule in this case because he said that it placed upon the building owner a
very substantial onus to use his own judgment. That it imposes some onus is, I
think, undoubted, but it seems to me to be wrong to say that it imposes upon
him a ‘very substantial’ onus.
In the
circumstances, in my judgment this appeal should be allowed. I think that the notice
should be restored and the matter should be referred back to the county court
to proceed with the appeal on the notice. I do not wish to express any
criticism whatever of the learned deputy judge in suggesting that the matter
should go back before another deputy judge, but I think it would be less
embarrassing for him if that course were taken.
Agreeing, SIR
DAVID CAIRNS said: I agree that this appeal should be allowed for the reasons
which have been given by my Lord, Oliver LJ. I add a few words as we are
differing from the learned deputy judge below. In my view the deputy judge made
the right approach when he said that the work required to be done by the notice
must be set out with a sufficient degree of particularity and that the judge
should take a commonsense view of the matter. But, like my Lord, I consider
that the learned judge went too far and he put the duty on the local authority
too high when he went on to say that the owners must be told precisely what
they had to do. Certainly it appears to me that it would be requiring an
unnecessary and unreasonable degree of particularity, and one which would in no
way be beneficial to the owner, that the notice should have to set out the
exact location, the exact area, the exact nature of every piece of work that
had to be done.
I accept Mr
Scrivener’s proposition that a reasonable test is that the schedule should be
of sufficient particularity to enable the owner to obtain a costing for the
work from a reasonable builder. Indeed Mr Mauleverer accepts that that is an
appropriate test. On that basis I am of the opinion that this schedule quite
clearly could not be regarded as being as a whole so vague that the court was
justified in taking the extreme course of quashing it altogether. It may be
that there are particular phrases that ought to be deleted on the basis of work
being required to be done which is not within the provisions of the subsection,
or on the basis that in particular cases it is not sufficiently clearly
specified and it may well be that if and when the evidence comes to be heard it
will be found that some of the work required by the notice is not necessary,
and that on that ground it ought to be deleted. But that is a very long way
indeed from saying that the notice as a whole is so vague that it ought to be
quashed. Taking it as a whole it appears to me to be a notice containing quite
a sufficient, reasonable degree of particularity and accordingly I agree that
the appeal should be allowed, that the notice should be allowed to stand and for
the reasons given by my Lord it would be appropriate for the appeal to be
continued before another judge.
STEPHENSON LJ
also agreed.
The appeal
was allowed, the notice to be restored and the matter referred back to the
county court to be considered by a different judge. The appellants were given
the costs in the Court of Appeal, but the costs below to be costs in the appeal
to the County Court judge.