Housing Act 1957–Appeal under section 11 against section 9 notice–Whether house capable of being rendered fit at reasonable expense–Test under section 39–Regard to be had to estimated cost and to value when works completed –‘Value’ means open market value–Meaning of ‘regard shall be had’–County court judge correct in finding that house could not be rendered fit at reasonable expense–Cost of repairs almost as much as open market value when repaired
This was an appeal
by the London Borough of Southwark against a decision of Judge Figgis in
Lambeth County Court that a house at 112 Cheltenham Road, London SE15, was not
capable of being rendered fit for human habitation at a reasonable expense. The
judge had, accordingly, quashed the notice under section 9 of the Housing Act
1957 which had been served on the owners, Inworth Property Co Ltd.
Stephen Sedley
(instructed by J B Parker, deputy town clerk of the borough) appeared on behalf
of the appellants; Richard Fawls (instructed by Stafford Clark & Co)
represented the respondent company. Counsel for the respondent company was not
called on by the Court of Appeal.
Giving
judgment, MEGAW LJ said: This is an appeal from the judgment and order of Judge
Figgis in the Lambeth County Court on May 26 of this year. The appellants in
this court were the respondents below–the London Borough of Southwark. The
respondents in this court were the appellants below–Inworth Property Co Ltd: I
shall refer to them as ‘the owners,’ and to the appellants in this court as
‘the local authority.’
The owners
were, and presumably are, the owners of a house 112 Cheltenham Road, London
SE15. By a notice dated January 13 1977 the local authority gave notice to the
owners that the local authority were satisfied that the house was unfit for
human habitation. That is a notice given by virtue of section 9(1) of the
Housing Act 1957. In pursuance of the provisions of that Act, the council
required the owners, within a period of 60 days ending on March 16 1977 to
execute certain scheduled repairs.
Section 9(1)
of the Housing Act 1957 provides, so far as is relevant for the purposes of
this appeal, as follows:
Where a local
authority . . . 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–(a) requiring him . . . to execute the works specified in the
notice, and (b) stating that, in the opinion of the authority, those works will
render the house fit for human habitation.
Then provision
is made, by section 11, for a right of appeal by the owner where such a notice
is served on him. It provides, in subsection (1), that a person aggrieved by a
notice under the foregoing provisions requiring the execution of works may,
within 21 days, appeal to the county court; and, by subsection (3): ‘On an
appeal to the county court under this section the judge may make such order
either confirming or quashing or varying the notice as he thinks fit. . .
.’ The remaining section of the Act to
which it is necessary to refer for the purposes of this appeal is section
39(1). It provides:
In
determining for the purposes of this Part of this Act whether a house can be
rendered fit for human habitation at a reasonable expense, regard shall be had
to the estimated cost of the works
house will have when the works are completed.
The owners appealed
against the notice to execute the repairs. The first ground of their notice of
appeal was: ‘The premises, being unfit for human habitation, are incapable of
being rendered so fit at a reasonable expense.’
The notice contained other grounds, but the owners proceeded in the
appeal only on that ground. The appeal was heard before Judge Figgis on May 26.
He held that the house was not repairable at a reasonable expense. He allowed
the appeal, and he quashed the notice. From that decision the local authority
appeals to this court.
Before the
learned judge there was, as he records in his judgment, an agreement between
the parties on certain figures. It was agreed that the present price of the
house on the open market was £1,300. It was agreed, second, that the price of
the house on the open market if repaired would be £1,900. It was agreed, third,
that the cost of the required repairs, including value added tax, would be
£1,800. So, taking those figures, in order to bring the house into a state
where, on the open market, it would have a value of £1,900, the cost required
so to do would be £1,800. That would produce a house the value of which, in the
open market, was £1,900 compared with its present price, on the open market, of
£1,300.
The principal
argument put forward on behalf of the local authority by Mr Sedley in this
court depends upon the meaning to be given to the word ‘value’ in section
39(1). Clearly, if ‘value’ in that subsection means ‘open market value,’ then
the learned judge was right, on the agreed figures, to hold that, by reference
to section 39(1), so far as he ‘had to have regard’ to that, this house was not
capable of being ‘rendered fit for human habitation at a reasonable
expense.’ Therefore Mr Sedley’s argument
must be, and I understand that it is, that ‘value’ in section 39(1) has some
meaning different from ‘value on the open market.’ To my mind, there is no justification for
that argument. It is certainly not to be found in either of the two authorities
to which we were referred–Ellis Copp & Co v London Borough of
Richmond upon Thames (see above) and Bacon v Grimsby Corporation
[1950] 1 KB 272.
Mr Sedley
further argues that section 39(1) provides only that for the purposes of
section 9(1) ‘regard shall be had to the estimated cost of the works
necessary to render it so fit and the value which it is estimated that the
house will have when the works are completed’: therefore, other factors also
fall to be taken into consideration for the purposes of deciding whether or not
the local authority has arrived at the correct conclusion under section 9(1)
when the judge on appeal has to consider that matter under section 11. That, in
my judgment, does not arise in this case. I accept that ‘regard’ having to be
‘had’ to a matter indicates that it is not necessarily conclusive. In the
present case, however, I have seen nothing to suggest that the learned judge
was wrong in the view that he took, which was, that ‘It may be that there are
factors in individual cases to be taken into account which will affect the
result’–that is, other than the section 39(1) calculations; but he found that
in this case it was ‘unnecessary to take into account any of the other minor
considerations which might be necessary in a borderline case, because none of
these could, in my judgment, so adjust the figures as to show other than that
these premises are not capable at a reasonable expense of being rendered fit
for human habitation.’
Mr Sedley
complained that he, having asked the judge for leave to call evidence as to a
different method of computation for the purposes of a section 39(1)
calculation, was not allowed to do so. There may well be different permissible
methods of arriving at the ‘value’–both the present value of the house and the
value when repaired–for the purposes of section 39(1). But, as I understand it,
the evidence that was sought to be tendered here was for the purpose of showing
such value being something different from the open market value. The open
market value had been agreed between the parties and therefore evidence as to
how it was arrived at would have been irrelevant. Accordingly, I do not see,
once it is clear (as to my mind it is clear) that ‘value’ means ‘open market
value,’ that the learned judge could properly have admitted the evidence. He
was right to exclude it.
In my
judgment, there is no substance in this appeal, and it must be dismissed.
BRIDGE and
WALLER LJJ agreed.
Appeal
dismissed with costs. Appellants given leave to apply, if so advised, for leave
to appeal to the House of Lords.
