Housing Act 1957, section 10 — Appeal from decision of county court judge in favour of local authority’s claim for the expenses of repairs carried out by the authority — Meaning of word ‘may’ in the phrase ‘the local authority may themselves do the work’ — Local authority’s view that, in default of compliance by an owner with a notice under section 9(1), the authority had an enabling power which was coupled with a duty to carry out the necessary works — The authority operated an automatic procedure by which, on such default, steps were taken to carry out the works without any further review of the circumstances — Opposing submission by property owners that section 10 gave the authority a discretion to decide to carry out the works after giving consideration to the relevant circumstances — Held that section 10 conferred a discretion and that in the present case the authority acted wrongly in adopting a procedure by which works were carried out in reliance on the ministerial act of an official in pursuance of a standing instruction issued years before the event — Appeal allowed and authority’s demand for expenses quashed — Incidental ruling that it was competent to challenge the validity of the section 10 notice by appeal to the county court and that it was not a matter which had to be raised by means of an application for judicial review under Order 53
This was an
appeal by Grant Elliott and his wife, Marilynne Therese Elliott, from a
decision of Judge Grant at Brighton County Court dismissing an appeal under section
11 of the Housing Act 1957 against a demand by Brighton Borough Council, the
present respondents, for the recovery of expenses incurred in carrying out
remedial works under section 10 of the Act. The property in respect of which
the works were carried out was a front basement flat at 1 Chichester Terrace,
Brighton, Sussex.
Graham
Platford (instructed by Kipling & Co, Cuckfield) appeared on behalf of the
appellants; Nicholas Wood (instructed by the borough secretary) represented the
respondent borough council.
Giving
judgment, OLIVER LJ said: Section 9 of the Housing Act of 1957 places upon a
local authority which is satisfied that a house in its area is unfit for human
habitation a duty to serve on the person having control of the house a notice
requiring him to carry out specified works which will, in the opinion of the
local authority, make it fit for human habitation. That is something which,
under the terms of the section, the local authority is obliged by law to do
unless it is also satisfied that the house is not capable of being rendered so
fit at reasonable expense.
Section 11 of
the Act gives to any person who is aggrieved by the notice, or by a subsequent
demand in pursuance of it, a right to appeal, within 21 days of the notice or
demand, to the local county court. If he does that then no proceedings are to
be taken under the notice or demand until the appeal has been determined.
The present
appeal is from an order of His Honour Judge Grant made in the Brighton County
Court on July 16 1979 dismissing the appellants’ appeal to the county court
under section 11 of the Act. That appeal was not against a notice served under
section 9 but was against a demand for the expenses of repairs carried out by
the local authority under section 10. I must therefore refer to the latter
section so far as it is relevant. In the context of the instant case there are
two relevant subsections, namely subsections (1) and (3). Subsection (1)
provides:
If a notice
under the last foregoing section — that is section 9 — requiring the person
having control of a house to execute works is not complied with, then, after
the expiration of the time specified in the notice or, if an appeal has been
made against the notice and upon that appeal the notice has been confirmed with
or without variation, after the expiration of twenty-one days from the final
determination of the appeal, or of such longer period as the court in
determining the appeal may fix, the local authority may themselves do the work
required to be done by the notice, or by the notice as varied by the court, as
the case may be.
Subsection (3)
provides:
Any expenses
incurred by the local authority under this section, together with interest from
the date when a demand for the expenses is served until payment, may, subject
as hereinafter provided, be recovered by them, by action or summarily as a
civil debt, from the person having control of the house or, if he receives the
rent of the house as agent or trustee for some other person, then either from
him or from that other person, or in part from him and as to the remainder from
that other person.
Then there is a
proviso which I need not read.
A demand made
under section 10(3), as I have mentioned already, is equally the subject-matter
of an appeal to the county court under section 11. That is provided in
subsection (1)(b); section 11 is in these terms:
(1) Any person aggrieved by — (a) a notice under
the foregoing provisions of this Part of this Act requiring the execution of
works, (b) a demand for the recovery of expenses incurred by a local authority
in executing works specified in any such notice, (c) an order made by a local
authority with respect to any such expenses 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.
There is then
an important specific provision relating to an appeal under subsection (1)(b)
and (c) which is in these terms:
(2) On an appeal under paragraph (b) or paragraph
(c) of the foregoing subsection no question shall be raised which might have
been raised on an appeal against the original notice requiring the execution of
works.
Subsection (3)
shows the wide discretion which is conferred upon the county court. It
provides:
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 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.
What occurred
in the instant case was this. On February 3 1978 the respondents, the Brighton
Borough Council, served a notice on
front basement flat at 1 Chichester Terrace, Brighton. The premises were
undoubtedly damp and were not fit for human occupation. The appellants — and
this is not disputed — were the persons who were in control of the premises
which were let to a tenant. That notice was in the proper form and it called for
the carrying out of a schedule of remedial works which does not matter for
present purposes. It was served as the result of an inspection which had been
made in November 1977 and which had been followed by a prolonged and
inconclusive correspondence in the course of which the appellants contended
that the works called for were more than merely remedial and they indicated
that they thought the case a suitable one for an improvement grant.
The notice was
not complied with, nor did the appellants exercise their right to appeal under
section 11 in respect of the notice. Consequently, the respondents’
environmental health officer, without any further instruction from the council
or its housing committee, obtained an estimate for the necessary works. On May
16 1978 he wrote to the appellants — or, to be precise, to Mr Elliott — saying
that the council would proceed with the work unless the appellants themselves
did it. The appellants still did not do the work and it was in fact carried out
by a contractor engaged by the environmental health officer.
On December 5
1978 the respondents made a demand on Mr Elliott for the sum of £1,283.70, the
expenses incurred. That produced a dual response. There was first a letter of
complaint about the quality of the work and, secondly, there was an appeal to
the county court. It was that appeal which came before His Honour Judge Grant,
the first hearing being on June 13 1979. At that hearing it emerged that the
appellants were taking the point (which, it is fair to say, they had ventilated
in correspondence before the work was done) that the word ‘may’ in section
10(1) conferred on the local authority not just a power but a discretion which
they were bound to exercise as a council only after a consideration of the
circumstances which, it was suggested, would include any representations which
the appellants had sought to make. That, it was said, had not been done and,
therefore, the works carried out were ultra vires. Of course, since what
was challenged was whether the works had been properly done under section 10,
that was a point which could not have been taken on an appeal against the
notice under section 9, so it was not excluded by the proviso.
The learned
judge rejected the appellants’ submission and a further hearing took place on
July 16 1979 which was concerned with the adequacy of the works, an issue which
the learned judge also decided against the appellants on the facts. He
accordingly dismissed the appeal. There is no appeal to this court on the
question of fact, but the appellants appeal against the rejection by the
learned judge of the preliminary point of law and it is on that point alone
that the argument before this court has centred.
There is no
dispute that the works which were carried out were the result, not of a
conscious decision of the council or even, in any real sense, of the
environmental health officer, but of an automatic procedure flowing from a
standing instruction which applied indifferently to every case of failure to
comply with a notice under section 9(1) of the Act within the time-limit
specified in the notice. The council never addressed its collective mind,
either by itself or by its delegates, to the question whether it should or not
carry out the particular work, for it had, some eight years previously, issued
what was, in effect, a standing instruction in the form of a resolution dated
January 28 1970. That resolution was in the following terms:
RESOLVED:
That in respect of notices served under section 9 of the Housing Act 1957 the
chief public health inspector be authorised: (a) to obtain estimates
immediately the time for compliance with a notice has expired and to begin
default works promptly thereafter; (b) not to delay work done in default
because of applications for improvement grants; (c) to inform owners of this
intention when the notice is served and to give no further information of the
council’s intentions.
The reason for
a resolution in this form being applicable to all cases was that the
respondents’ interpretation of the Act led them to the conclusion that, on a
default in compliance with a notice under section 9(1), they had no option but
to undertake the work themselves because the statute cast a positive duty on
them in those circumstances to do so. It is quite clear, from the correspondence,
that the environmental health officer took the view, which coincided with the
council’s view, that once a notice had been served and not complied with, for
whatever reason, the council came under a statutory duty to undertake the work
itself without regard to any considerations which might then exist pointing to
the desirability or undesirability of doing so.
Mr Elliott had
written to him (that is the environmental health officer) at the end of April,
indicating that he might be applying for a possession order against the tenant
and was contemplating major works of renovation which would render the proposed
works of minimal benefit. Whether he genuinely had such an intention is at
least questionable, but the environmental health officer, in his reply, made it
quite clear that he did not consider himself free, whatever the circumstances,
to do anything but carry out the works. It is, in fact, not necessary to trace
this determination through the correspondence because it was, as I understand
it, conceded before the learned judge. The case was argued before him on the
basis that once there had been a default in compliance with the notice, there
was an immediate statutory obligation upon the local authority to do the work
which absolved it from making any decision in the matter or even considering
the merits or demerits of so doing.
The learned
judge accepted the respondents’ view of the matter. He said, in his judgment:
I accept the
argument of the local authority. There is nothing in the authorities, as I
understand it, which compels the court to construe the word ‘may’ as
necessarily conferring a discretion upon them which they must exercise. The
word ‘may’ in a statute, it seems plain from the authorities, can be construed
as a pure enabling provision or as an enabling provision giving an absolute
discretion and it seems to me that the framework of this Act and the intent of
the Act plainly points to the word ‘may’ in section 10 being used as enabling
the local authority to do the works themselves in their absolute discretion, or
may be as a matter of duty. But certainly I reject as mistaken the contention
that a notice having been served and not complied with, no appeal having been
brought against it, that at that stage when the opportunity for everything
relevant being considered had passed, they should have begun an investigation
whether or not to carry on with the works when plainly they were under a duty,
namely, to see to it that the house unfit for human habitation should be
rendered fit.
Mr Platford
has presented to us a number of cogent arguments for saying that that was
wrong; wrong at any rate to this extent, that the learned judge took the view
that the word ‘may’ in the section imposed a positive obligation. But after the
conclusion of the arguments, indeed in the course of preparing our judgments in
a case which is of considerable importance to local authorities generally,
there arose a somewhat fundamental point which was not argued before the
learned judge and was certainly not argued before us on the substantive hearing
of the appeal. It is this. Section 11(1) of the Act confers the right of appeal
to the county court and in relation to a demand for expenses incurred in
carrying out work under section 10 it gives the right of appeal which expressly
excludes any matters which might have been taken on an appeal against the
section 9 notice. The court has power, on such an appeal, to confirm, quash or
vary the demand. An appeal under this section is clearly appropriate when what
is in issue is whether, for instance, the work has been properly carried out or
is in accordance with the notice or whether the charges raised are excessive or
unreasonable — all matters which, in the instant case, have been determined
against the appellants. But is it appropriate where the point which the
appellants wish to raise has nothing to do with the contents of the demand
itself or the value or nature of the work in respect of which it is made, but
consists of a challenge to the discretion of the local authority in carrying
out the work at all? On the face of it
this is not a matter which is within the contemplation of the section; it is a
matter more appropriate for judicial review under Order 53 of the Rules of the
Supreme Court.
What is sought
to be challenged is the discretion of an administrative body charged with a
public duty and the proper remedy in such a case, prima facie, would
appear to be an application to the Divisional Court for a judicial review.
In the light
of this we have sought the assistance of counsel by restoring the case for
further argument before giving judgment.
helpful arguments. Mr Wood has helpfully drawn our attention to two cases, Metropolitan
Properties Co (FGC) Ltd v Lannon [1968] 1 WLR 815 and Chapman
v Earl [1968] 1 WLR 1315, both of which raised a serious doubt whether,
on an appeal at any rate under section 9 of the Tribunals and Inquiries Act
1958, it is open to an appellant to challenge the very proceedings in which the
decision appealed from was made. They suggest that the only remedy in such a
case may be by what is now an application for judicial review.
Mr Wood
himself, however, felt bound to draw our attention, most properly, to other
cases which suggest that in such cases there may be concurrent remedies and, as
Mr Platford has pointed out, the only right under the statute under
consideration in the two cases to which I have referred above is a right to
appeal against the decision, which may be said to postulate that a valid, if
erroneous, decision has been made. The wording of section 11 of the Housing Act
1957, however, is very general and it confers a very wide discretion upon the
county court judge. It gives a right of appeal against a demand for payment of
expenses incurred and there is no doubt that such a demand has been made in the
instant case. There is nothing in the section itself which would indicate that
the court, on appeal, would be precluded from considering whether the demand was
properly made and indeed subsection (3) gives the judge jurisdiction to quash
it.
Furthermore,
there is authority of this court which seems to show that on an appeal to the
county court under section 11(1)(a) of the Act the county court is the proper
tribunal for considering the question of the validity of exercise of the local
authority’s discretion in issuing the notice under section 9 and there is no
logical reason why the same should not apply to a demand made under section 10.
The point in
relation to what is now section 9 was considered by the court in Cohen v
West Ham Corporation [1933] Ch 814 which concerned the predecessor
section to the present section 11, namely, section 22 of the Housing Act 1930,
which was substantially in the same terms.
Lord Hanworth
MR at p 832 said this:
The simple
point that is before this court is whether those notices were valid or invalid.
We have come to the conclusion that they were valid. Consideration must be
given to sections 17, 18 and 19 of the Housing Act, also to section 22, which
enables an appeal to be made to the county court, but makes it impossible to
appeal after the lapse of twenty-one days from the date of the service of the
notice. In the present case there was no appeal to the county court within the twenty-one
days of the service of the notices, and the result is that they stand good in
their terms if they are valid notices under section 17.
At p 834
Lawrence LJ says:
In my
judgment, the learned judge was right in holding that the notices served by the
council were notices given pursuant to section 17 of the Act of 1930, and
therefore came within the purview of sections 18 and 22 of the Act, with the
result that not having been appealed against they are valid notices, whether or
not the council complied strictly with requirements of subsection (4) of
section 17.
So that their
Lordships were clearly of the view that the right way of challenging the
validity of the notice was by an appeal to the county court.
A somewhat
similar point, although this time in relation to a possession order sought
against a council tenant, came before the court in Cannock Chase District
Council v Kelly [1978] 1 WLR 1, where it seems to have been
suggested that the exercise of the council’s discretion to seek possession
could be challenged only on a judicial review. Megaw LJ at p 8, said this:
The passage
which I have already quoted from the note of Judge Allardice’s judgment is, I
think, consistent, in its reason for rejecting the defence, with the views
which I have expressed. But earlier in his judgment the judge had expressed the
view that if a council house tenant, having received from a local authority a
notice to quit, desired to challenge it on the ground of bad faith or abuse of
power, his correct course was to apply to the Queen’s Bench Divisional Court
for a prerogative order, or to the High Court for a declaration; and that, if
he failed to do so before the notice had expired, the county court could offer
no remedy. Counsel for the local authority, in this court, submitted as one of
his arguments that the judge in the county court had a discretion to refuse to
deal with such a matter himself and to leave it to the tenant to apply to the
High Court for a declaration or a prerogative order. As at present advised, I
do not agree. It may well be that the county court would be overwhelmed, and
the local authorities would be gravely hampered in carrying out their
functions, if, as was suggested in the present case, a tenant could hold up the
obtaining of an order for possession and could bring about delay and discovery
of documents and ultimately a trial with much oral evidence, merely by
asserting: ‘I am a good tenant: therefore you must have acted in abuse of your
powers.’ But I hope I have made it clear
that, if my judgment is correct, that will not do.
Quite clearly,
his Lordship was rejecting there the contention that the only remedy was a
resort to prerogative writ.
These cases
satisfy me that the point taken in this case is one which can be taken on an
appeal to the county court under section 11 and I am reinforced in that by the
fact that the section is expressed — and presumably deliberately expressed — in
terms which confer the widest possible discretion upon the county court judge
(see Cochrane v Chanctonbury Rural District Council [1950] 2 All
ER 1134).
Turning to the
present appeal, Mr Platford on behalf of the appellants argues that the learned
judge’s decision was wrong. The demand made upon the appellants can be
sustained, he submits, only if the works which were done were carried out under
a proper exercise of a statutory power; and a purported exercise of such a
power, otherwise than as a result of a conscious decision to exercise it is, he
contends, ultra vires. To treat section 10(1) as imposing a mandatory
obligation on a local authority to carry out the work regardless of the
circumstances involves, he submits, effectively reading ‘may’ in the subsection
as ‘shall’ or ‘must’ and there is no context for that in the Act.
When one looks
at the Act as a whole, there is undoubtedly a striking contrast between those
sections where the legislature in terms imposes a mandatory obligation and
those where it confers a power or discretion. Section 9(1) is, in terms,
mandatory once the pre-condition is fulfilled of satisfying the local authority
of the unfitness of the premises and that they are not incapable of being
rendered fit at reasonable expense. Equally, the next section (which I have not
yet read) is clearly discretionary, that is section 9(1)(A) which was added subsequently
and which is in these terms:
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 the house is in such a 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.
It must be
remembered that the provisions of section 10(1) apply indifferently both to
notices under section 9(1) and to notices under section 9(1)(A). Again, section
12(1), which authorises the purchase of property found on appeal not to be
capable of being rendered fit for occupation at reasonable expense, clearly
confers a discretion. There are many, similar provisions where the authority
‘may’ do things and where it is clearly a matter for their discretion whether
or not they do or not. For instance, section 10(5) which enables the authority
to make provision for the recovery of expenses by instalments, section 25(1)
which relates to the cleansing of premises subject to demolition orders and
section 29(1) which relates to the purchase of condemned houses.
In striking
contrast with these provisions are the provisions of section 23(1) which
provides that where a demolition order has become operative and the owner fails
to demolish within the time specified the local authority ‘shall’ itself enter
and demolish.
I have
referred to these provisions because they do, as it seems to me, support Mr
Platford’s submission that where the statute intends to impose a mandatory duty
it does so in express terms. Moreover, Mr Platford submits that, quite apart
from these contrasts and from the natural meaning of the word ‘may’, section
10(1) really only makes practical sense if that word is construed in a
permissive or discretionary sense rather than the obligatory and unnatural
sense contended for by the council.
In the first
place, the statutory provisions themselves envisage a lapse of time between the
service of the notice and a resort to section 10(1). During that time
circumstances may change entirely — for example the premises may be sold to
someone anxious to redevelop them — and it requires little imagination to
produce instances of matters which could arise which would radically affect the
desirability or usefulness of having the work done either at all or by the
local authority itself. To take only one instance, the notice requires that the
specified work be ‘executed’ and that must, I think, mean ‘completed’, not
merely started. Suppose that the owner had set about them but had not finished
them when the time-limit expired. Is it to be said that the local authority is
obliged — not merely empowered — to go in and turn the owner’s contractors out
so that they themselves can complete the work under section 10(1)? This seems an absurd suggestion but it must,
I think, be the logical consequence of the construction for which the
respondents contend, for they say that once the statutory machinery and
time-limits are set in operation, the steps envisaged by section 10 follow
inexorably without any further conscious act by the authority beyond, I
suppose, the purely ministerial one of ordering their workmen on to the site,
an act which the law obliges them to do.
Secondly, Mr
Platford submits that, quite apart from any circumstances occurring in the time
which necessarily must elapse between service of notice and default, there may
be considerations which, though entirely irrelevant to the question whether it
is appropriate to serve a notice under section 9(1), are nevertheless relevant
to the question whether it is desirable for the work to be carried out by the
local authority at that juncture. Thus, he submits, there is certainly nothing
compulsively leading to a construction of the word ‘may’ in section 10(1) in a
sense which, in any event, is not its natural one.
For the
respondents, Mr Wood argues that the purpose of the Act is to make owners of
houses keep them in proper repair and that it casts on the local authority the
duty of seeing that they do so. It is clear that where the conditions mentioned
in section 9(1) apply, the local authority is under a duty to serve notice and
once that has been done, and all rights of appeal by the person having control
of the premises have either lapsed or been exhausted, their duty to secure that
the premises are put into a proper state compulsively dictates, it is
submitted, that, in default of compliance with the notice, the power in section
10(1) shall, without more, be exercised. It is, therefore, he argues, quite
unnecessary for the local authority to apply its mind to the question whether
it should go in and do the work because, if it did, it could come up with only
one answer, namely that it must do it. So if, for instance, the building owner
has been prevented by illness or other cause from doing the works within the
time prescribed, but is willing and able to undertake them at his own expense,
they must nevertheless be carried out by the local authority whether they wish
to do them or not. He draws our attention to cases such as MacDougall v Paterson
(1851) 11 CB 755 and Sheffield Corporation v Luxford [1929] 2 KB
180 in support of the proposition that a statute conferring a power may be
construed as imposing a positive obligation to exercise it where the conditions
for its exercise exist.
Both those
cases were cases of judicial powers, but he submits that there is no essential distinction
between a judicial and an administrative body. The discretion here, he
suggests, is at the notice stage and it is here that the person affected has
his right of appeal under section 11. His only other right of appeal under that
section is in relation to the demand made for the expenses of an exercise of
the power conferred by section 10(1) and it cannot, he submits, have been
contemplated by the legislature that on an appeal under section 11(1)(b) he
would be entitled to raise questions as to the propriety of the exercise of the
power under which the expenses arise.
There are, Mr
Wood submits, three possible meanings comprehended in the word ‘may’. It may
mean simply that the propositus is at liberty to do something which would
otherwise be unlawful — and he would style this a pure ‘enabling’ power which
does not involve any notion of any exercise of will. It may mean a
discretionary power and, finally, it may mean a power coupled with a duty. The
power under section 10(1), he submits, must come within either the first or the
third of these categories, because where the legislature intends to confer a
discretion in this Act it points out what has to be taken into account in
exercising it as in section 9 and section 16 where the authority has to be satisfied
‘upon consideration’ or in section 17(2) where certain matters ‘appear’ to the
authority.
Speaking for
myself, I am not persuaded of the validity of these distinctions. As Mr
Platford suggests, once one finds a power conferred by an Act there is necessarily
an act of will in deciding whether it should be exercised or not. It involves a
decision and that is a discretion. What facts will have to be taken into
account in arriving at the decision may be a matter for argument but a body
cannot, to take the present case, go in and carry out repairs unconsciously.
Nor am I persuaded that any sensible distinction is to be drawn between those
sections of the Act which do and those which do not point out or delimit
matters which have to be taken into account in determining any particular
course of action which the statute authorises. It seems to me, for instance,
really unarguable that the power to prescribe payment by instalments in section
10(5) is not a discretionary power simply because there is no reference to the
matters which the authority must consider.
One is left,
therefore, with Mr Wood’s central proposition based on the cases to which I
have referred above and it is essentially a point of construction. I find
myself unable to accept his construction of the statutory provisions. It
involves the conclusion that an entry by the local authority to do the work is
the compulsory and automatic consequence of a default in compliance with the
terms of the notice and that is neither what the statute appears to me to say
on any ordinary construction of the words used nor is it, as it seems to me, a
sensible construction.
It has to be
borne in mind that section 10(1) applies indifferently both to default in
complying with a notice under section 9(1) and to default in complying with a
notice under section 9(1)(A) where the giving of the notice itself is quite
clearly a matter not of duty but of discretion. It would be a very strange
result and, as I think at any rate, an absurd result if the exercise of an
admitted discretion under section 9(1)(A) committed the authority to an
irreversible and immutable process which, from then on, it was powerless to
control. But if Mr Wood is right on the construction which he seeks to place on
section 10(1) he must either face this absurdity or he must say that the
self-same word in the self-same section has alternative meanings according to
the provision of the Act under which the notice was given; whereas the natural
meaning which Mr Platford urges produces a perfectly reasonable and
intelligible result in both sets of circumstances.
Of course, it
may very well be in many cases, and indeed I strongly suspect it may be so in
the present case, that if the matter were considered, it would appear that the
only way of getting the work done and thus accomplishing the statutory purpose
is by the local authority undertaking it itself so that the room for the
exercise of a choice in the matter may be very narrow. But that does not mean
that the power is not a discretionary power. It is not, I think, open to the
respondents in this case to rely upon such considerations because, in the light
of the concession made before the learned judge, that aspect of the matter was
simply never investigated, nor indeed is there any respondents’ notice in
respect of it. They have, necessarily, argued their case (which necessarily
makes this, as I think and as I am glad to say, an unusual case) on the footing
that no consideration was given to exercising the power because none was
necessary, since it followed as a matter of obligatory and inevitable statutory
machinery. As to that I have reached the opposite conclusion to that reached by
the learned judge.
I am, of
course, very, very far from saying either that the necessity to exercise the
discretion and come to a decision on the exercise of the statutory power
obliges a local authority to engage in the sort of lengthy arguments and
consultations which Mr Elliott obviously regards as appropriate or that, if the
respondents in the instant case had applied their mind to the question at all,
they would not and could not, quite properly, have reached a decision to
exercise the power. But that is not the question. What they cannot, in my
judgment, properly do is to make no decision at all because they never even considered
the matter and then rely upon the ministerial act of an official pursuant to a
standing direction issued years before the event as constituting an exercise of
the election which the statute gave them. I am fortified in this conclusion by
the following passage from the judgment of Maugham J, as he then was, in the Cohen
v West Ham case to which I have referred, [1933] Ch 814 at p 827, where
he says this:
I do not wish
to be misunderstood by my use of the word ‘discretion’. I have come to the
conclusion that this is not a case, as was Hall v Manchester
Corporation, where the owner of the house or the person in charge of it is
entitled to be summoned to attend the local council or committee before the
order is made: nor do I consider it necessary for the whole of the council to
consider the matter. It seems to me quite sufficient if some delegate body,
whether the housing committee or someone entrusted by it on behalf of the
council, looks into the matter and studies the official representation or the official
report, or the other information, and the notice which is proposed to be
served. Upon that I think the local authority can properly act, but I do
express the opinion that something of the sort is necessary.
With every
word of that I agree and it seems to me it applies to the instant case.
It follows,
therefore, from what I have said that the appellants were entitled, in my
judgment, to succeed on the preliminary point that the power conferred by the
statute, in so far as it can be said to have been exercised at all by the
instructions issued by the environmental health officer under the 1970
resolution, was exercised under a misapprehension that the statute compulsively
dictated its exercise and was, therefore, not properly exercised and accordingly
no demand for the recovery of the expenses could properly be made.
The
appellants’ merits, I must say, are not impressive. I have formed the very
strong impression from the correspondence that the objections raised were
insubstantial and a prevarication. Therefore I have reached the conclusion that
I have with considerable reluctance.
The case is an
unusual one and not, I think, one from which those in a similar position to the
appellants should take any encouragement to proceed with frivolous or time-wasting
appeals. It is unusual because it is based on a concession made below which Mr
Platford acknowledges to be his sheet anchor. I and my brother think it was a
wrong concession, but there it is and with regret, therefore, I would allow the
appeal. That leaves, I think, no alternative but to order that the demand be
quashed.
Agreeing,
WATKINS LJ said: I sympathise with the Borough Council of Brighton which is
forced to be the respondent to an appeal which has no merit whatsoever.
The appellants
own a number of houses in various places. In one of them, namely, 1 Chichester
Terrace, Brighton, the tenanted basement flat became so affected by damp as to
render it, in the respondent’s opinion, unfit for human habitation. The
respondent has a duty under the provisions of Part II of the Housing Act 1957
to provide for the repair, maintenance and sanitary conditions of houses within
the borough. In circumstances for which the Act provides it may itself, if the
owner chooses not to do so, restore a house to a fit state for living in. It
requested the appellants to repair the basement flat. They refused to comply,
so the respondent served a notice to comply under section 9(1) of the Act. They
neither obeyed the notice nor, as they were entitled to and clearly, having regard
to their objections to repair, should have, appealed against it. If they had
appealed their objection to what the notice ordered them to do would have been
considered by a county court judge who has a very wide discretionary power to
set aside, vary, or leave untouched a statutory notice.
Having
neglected the opportunity to have the notice considered judicially, they
bombarded some of the respondent’s officials and councillors with further
objections to repairs being done to the flat. The respondent, using its power
under section 10(1) of the Act, engaged a contractor to do this work. After the
work was done, the respondent served a demand upon the appellants for the
recovery of the expense of doing it. The appellants refused to pay and appealed
against the demand. The appeal failed in detail. At the same time they also
appealed under section 11(1)(b) to His Honour Judge Grant at the Brighton
County Court against the respondent’s decision to use its powers to do the work
under section 10(1) saying that this suggestion conferred a discretion upon the
respondent which it had not exercised. Accordingly, it acted without authority.
So the demand was unenforceable.
This point had
been taken by the appellants in correspondence with the respondent; thus it was
not surprising that it became the point of law, and the only one, relied upon
in this part of the appeal to the county court. It also failed. The learned
judge held that the word ‘may’ in section 10(1) does not confer a discretion
which must be exercised; it is an enabling provision giving an absolute
discretion. The respondent was not called upon to investigate further or to
consult with the recipient of a statutory notice. It was under a duty only to
ensure that a house unfit for human habitation was made fit.
It is now said
that the learned judge was mistaken upon this point. The point in issue may be
simply stated as, does ‘may’ mean ‘must’?
As a matter of common understanding of these two words, the answer
surely is that it most certainly does not. The word ‘may’ is indicative of a
choice or of the exercise of a discretion; the word ‘must’ is imperative. It is
a word of command or of obligation to act in some way or another. ‘May’ is
undoubtedly used in this sense in some other sections of the Act — see sections
9(1)(A), 16(4) and 17(2). Can it possibly be said, therefore, to have a
different meaning as it is used in section 10(1)?
It is argued
on behalf of the respondent that as used there it does bear a different
meaning. It must be read in conjunction with the detailed provisions of section
9(1) and the overall duties of a council under Part II to ensure that houses
within a borough are kept fit for human habitation. The rights of an owner of
property are amply provided for, especially by the right of appeal against the
statutory notice and the discretion given to a county court judge to set aside
or to vary the terms of the notice so that it may justly reflect the situation
by, among other orders, extending time for compliance. The introduction of yet
another period for possibly reviewing the situation and consulting with the
owner cannot possibly have been contemplated by or have been the intention of
Parliament. That is how the respondent has, for many years, regarded this
matter. It has assumed that the word ‘may’ means that a council is thereby
given an enabling power to repair a house unfit for human habitation which is
coupled with a duty so to do upon the failure of the owner to comply with the
statutory notice in its final form. There is no lack of support from decided
cases for the contention that the word can, in some legislation, bear the
meaning which is attributed to it by the respondent.
The appellants
contend that section 10(1) is a purely enabling provision. There are powerful
indications that the use of the word ‘may’ in the Act can only lead to the
conclusion that it confers a discretion. The council may repair, upon failure
by the owner to do so after notice or, in its discretion, it may not.
Circumstances may change during the period of the notice or after its
termination. Council policy with regard to that part of the borough where the
house is situated may be altered; an owner, having at some time felt unable to,
may find himself able to, after all, effect the repairs; the terms of the notice
as varied by a county court judge may change the situation so as to make it
more sensible and practical that an owner and not the council should effect
repairs.
However, I am
in no doubt that if the respondent had exercised its discretion in the present
case it would inevitably have concluded that it should carry out the repairs to
1 Chichester Terrace. The appellants were undoubtedly bent upon thwarting the
respondent at every turn. It had made all its decisions up to the time of
effecting the repairs in a regular way. They are not complained about. It
occurs to me that if the discretion contended for does exist, the occasions
when it would be exercised in favour of an owner following failure to repair
after notice to do so, will be rare. Nevertheless, the use of the word ‘may’ in
the context in which it is used in section 10(1) allied to the use made of that
word in many other parts of the Act, lead me to believe that it bears its
ordinary, commonly understood meaning.
For this
reason and for those provided for in detail by my Lord, I have to disagree with
the opinion of the learned county court judge.
judge acted within his jurisdiction in entertaining this appeal at all. However,
the further very helpful arguments of both learned counsel have removed that
doubt entirely. Accordingly, I am also able to agree with my Lord on that
point. I would, though not without regret, allow the appeal and quash the
demand.
The
respondents were ordered to pay the appellants’ costs here and below, the
appellants’ costs of application for leave to appeal out of time to be set off
against other costs.