Unfit houses–Council ‘shall’ serve notice under section 9 or section 16 of Housing Act 1957–This means what it says–Council not given a choice between Public Health Act powers and Housing Act powers–Owners’ application in substance succeeds
This was an
application by Guppys (Bridport) Ltd, of Nordons House, Crock Lane, Bridport,
Dorset, for an order of mandamus directed to the respondents, Kerrier District
Council, requiring them to exercise their powers under either section 9 or
section 16 of the Housing Act 1957 to deal with two admittedly unfit houses
known as 5 and 6 Carn Brea Village, Redruth, Cornwall, owned by the applicants.
Mr R C Pryor
(instructed by Turner, Peacock, agents for Hollowell & Bollam, of Weymouth)
appeared for the appli-
the solicitor to the council) represented the respondents.
Giving
judgment, LORD WIDGERY said that it was common ground among all concerned that
the two houses were unfit for human habitation within the meaning of section 4
of the Housing Act 1957, and probably had been so unfit for many years. Among
other things, they had ground floors below the level of the surrounding land,
and they were back to back. The question whether they were capable of being
made fit at reasonable expense was not clear on the material before the court
at present. The council and the applicants were both dissatisfied with a
situation in which two unfit houses were still occupied by tenants. But the
reason why no one had yet taken any effective action was the prevailing housing
shortage. The applicants were prepared to make one good house out of the two.
They could not do that unless they had vacant possession, and they had no means
of accommodating the tenants elsewhere at the present time. The respondents
would no doubt be glad to accommodate the tenants if they could, but they said
they had no accommodation for them. The pressure upon them was intense, and
consequently they had made no move in the matter which would require possession
of the two houses being given up by the occupants. All that they had done,
after a good deal of correspondence, was to take action under the Public Health
Act 1936 in the form of requiring the applicants to make good the roofs, action
which might well have the effect of preventing the houses from being
prejudicial to health, but which did not meet the overall objection that they
were unfit for human habitation in accordance with the Housing Act. The matter
was well set out in a letter from the applicants’ solicitors to the respondents
dated July 1 1974, and the respondents’ answer. The former letter said:
It appears
from our instructions that the council is in default in exercise of its
mandatory duties under the Housing Act, section 9 or 16 and section 69. Our
clients have provided information and the council has no doubt also had
official representations that these houses are unfit for human habitation so
that the duty arises to consider this information and make the appropriate
order, which in our submission should be under section 16 rather than section
9.
What the
applicants were doing was asking the housing authority to take action against
them (the applicants) under one or other of the sections with a view to
possession of the premises being obtained, thus providing an opportunity for
the building of a new and improved house. The council replied on July 5:
The council
accepts that the above properties are unfit for human habitation, but it is
contended that neither section 9 nor section 16, Housing Act 1957 is mandatory,
despite the use of the word ‘shall,’ and that the council has the discretion as
to the use of Housing Act powers or section 93, Public Health Act 1936 powers.
As you know, in this instance, my council chose the latter procedure after
taking into account all the circumstances of the case.
The council
were saying there that they had a choice or discretion and were going to
proceed under the Public Health Act instead, a procedure which would not
involve removing the occupants from the houses. Section 9 (1) of the Housing
Act provided:
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 any house is unfit for human habitation, they shall, unless they are
satisfied that it is not capable at a reasonable expense of being rendered so
fit, serve upon the person having control of the house a notice . . . requiring
him, within such reasonable time, not being less than 21 days, as may be
specified in the notice, to execute the works specified in the notice. . . .
If action were
taken under section 9, there was provision in section 11 for an appeal to the
county court, and in particular for the county court judge reaching a
conclusion on the issue, if it arose, as to whether the premises were capable
of being rendered fit at reasonable expense. Section 16 was concerned with
unfit houses which were not capable of being rendered fit at reasonable
expense. Subsection (1) provided:
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 the person
having control of the house, upon any other person who is an owner thereof,
and, so far as it is reasonably practicable to ascertain such persons, upon
every mortgagee thereof, notice of the time (being some time not less than 21
days after the service of the notice) 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.
So, given the
premise of an unfit house which could not be rendered fit at a reasonable
expense, the local authority ‘shall,’ the section said, call a conference, as
it were, of all those interested in the house to see what was to be done. The
section went on to provide that a person interested in the house might give an
undertaking to carry out repairs. If the undertaking was accepted by the
council, then the owner had not got the obstacle of tenants in possession
because the Act expressly said that he might have possession against a
Rent-Act-protected tenant. If an undertaking was not given, or was broken, then
section 17 of the Act provided that the housing authority should secure the
demolition of the house or its closure.
The applicants
said that in those circumstances there was an obligation upon the local
authority to take action in respect of a house which was unfit for human
habitation. If it could be made fit at reasonable expense, the action should be
under section 9; if it could not, the action should be under section 16. They
were saying, ‘We do not mind which course you take, but once you accept, as you
do, that the house is unfit for human habitation one or other of these courses
is mandatory.’ The council contended
that action was not mandatory, and denied that they were bound to carry out
either of the courses of action in respect of unfit houses laid down in the
1957 Act. It was not easy, however, for the respondents to contend that they
had a mere discretion, because the language was imperative in form. In each
case it was said that the local authority ‘shall’ serve the notice in question.
The argument that such obligations were imperative was reinforced by the decision
in R v Epsom and Ewell Corporation [1964] 1 WLR 1060, and must be
all the stronger where one was dealing with unfit houses, which obviously ought
not still to have occupiers but be rendered fit as soon as possible. It seemed
to him (his Lordship) that the provisions were mandatory, and that the
respondents were not able to claim the right to take action or not as and when
they thought it proper. He had great sympathy with them in this matter, because
housing authorities were notoriously in trouble at the present time due to the
pressures on them; but the Act, properly understood, meant that once the
condition of an unfit house was brought to their attention, then they had got
to do something about it because the Act so provided.
The final
contention, which would have been in the forefront of Mr Dinkin’s argument but
for a recent decision of the House of Lords, was that where local authorities
had their Housing Act powers and Public Health Act powers available in relation
to a given situation, they had a choice as to which of those powers they would
employ. If that were right, it would provide a complete answer to the
applicants’ case in the present application, because that was the attitude
which the respondents had taken. They said they were going to use their Public
Health Act powers and not
for a few days, so that the court could have the advantage of the guidance from
the House of Lords, which was now available in the case of Salford City
Council v McNally [since reported at [1975] 3 WLR 87; 236 EG 555,
[1975] 2 EGLR 28]. In that case the problem posed by the dual systems of
control of housing was extremely pertinent. Lord Wilberforce laid it down in
the plainest terms that the Public Health Act code and the Housing Act code
were two separate systems for securing similar objects, that they were not in
collision, and that there should be no difficulty in distinguishing the one
from the other if attention was duly given to the precise language used in the
two statutes. The systems were separate and parallel, and each had to be
enforced and carried out in its own way. Once that was established, there was
no substance in the respondents’ attitude to their problems in the present case.
It followed that the applicants had made out, in general terms, a case of
default by the council. He (his Lordship) did not see at the moment how a more
precise form of judgment could be given. The court did not know whether the
houses in question were or were not capable of being made fit at reasonable
expense. The precise duty of the council turned on the answer to that question.
The best the court could do was to leave the matter with the statement of
principle he (Lord Widgery) had endeavoured to give. The court had been assured
that if it gave its opinion in general terms the parties would be ready to
apply those general terms to whatever facts proved to be correct; in other
words to apply the concept of being made good at reasonable expense if it turned
out that that was the category into which the houses should fall. He would for
his part make no order on the application, but invite the parties to dispose of
their differences in accordance with the principles discussed.
WALLER and
KILNER BROWN JJ agreed, and no order was made on the application save that the
applicants were awarded costs.
