Housing Act 1985, sections 264, 265, 604 — Demolition and closing orders — Application for judicial review by tenant of cottage — Landlord’s action for possession on the ground that the demolition order removed the protection of the Rent Act adjourned pending result of present proceedings — Closing order substituted for demolition order after cottage was listed as a building of special architectural and historic interest — Demolition and closing orders attacked by tenant on Wednesbury principles — Orders quashed
was the tenant of the cottage which was the subject of the present proceedings
— His position was somewhat weak as he was not ‘the person having control of
the house’ within the meaning of sections 322 and 264 of the Housing Act 1985 —
Thus he was not entitled to notice that a demolition order might be made and so
had no opportunity to make representations to the housing authority as to the
condition of the property or the reasonableness of repairing it — He was liable
to be deprived of protection under the Rent Acts by virtue of section 270 or
276 of the 1985 Act — The owner of the cottage, on the other hand, stood to
benefit from a closing order — In fact no action had been taken to enforce the
demolition or closing order pending the outcome of the present application —
The weakness of a tenant in the position of the applicant had been recognised
by the Court of Appeal in R v Ealing Borough Council, ex parte Richardson
demolition order was made after the applicant had requested his landlord to
carry out certain repairs — The local authority became involved in the
discussions, an inspection of the cottage was made and an environmental health
officer concluded and reported that the cottage was unfit for human habitation,
having regard to section 604 of the 1985 Act — It was said by an officer of the
local authority that the necessary repairs would cost £20,000, that the current
value of the property was £20,000 and the value with the work done and a tenant
with a regulated tenancy in occupation £45,000 to £50,000 — The reports on the
basis of which the authority made the demolition order were defective — The
original report in December 1987, which made a number of general statements
about the condition of the cottage, did not expressly identify the items which
contributed to the unfitness or provide an itemised costing — The reports did
not contain a clear distinction between conditions which make a house unfit and
conditions which, although worthy of attention, do not — A complaint that sewage
emptied directly into the River Severn highlighted a matter of genuine
environmental concern but did not make the cottage, the drainage system of
which was functioning normally, unfit — An item of £950 for ‘electrics’ did not
identify defects in the electrical system but referred to the convenience of
electrical points for appliances — It followed that the figure of £20,000 as
the cost of repairs was not one which a reasonable authority could take into
account when making its overall decision — The judge also criticised delay in
carrying out the valuation exercise mentioned in section 321 of the 1985 Act
and expressed doubt about the basis of valuation adopted
the judge concluded that the local authority had acted incorrectly according to
the first limb of the Wednesbury test, by taking into account matters which
they ought not to have taken into account — He recalled the statement of Lord
Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223 at p 233:
The court is
entitled to investigate the action of the local authority with a view to seeing
whether they have taken into account matters which they ought not to take into
account, or, conversely, have refused to take into account or neglected to take
into account matters which they ought to take into account.
The following
cases are referred to in this report.
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680, (1947) 45 LGR 635, CA
FFF
Estates Ltd v Hackney London Borough Council
[1981] QB 503; [1980] 3 WLR 909; [1981] 1 All ER 32; (1980) 79 LGR 554; 41
P&CR 54; [1981] JPL 34, CA
Harrington v Croydon Corporation [1968] 1 QB 856; [1968] 2 WLR 67;
[1967] 3 All ER 929; (1967) 66 LGR 95, CA
R v Ealing Borough Council, ex parte Richardson [1983] EGD
351; (1983) 265 EG 691, [1983] 1 EGLR 41; [1983] JPL 533, CA
This was an
application for judicial review by William Trigg, the tenant of Dock Cottage,
Bullo Pill, Newnham, Gloucestershire, who sought to have quashed a demolition
order made in respect of the cottage by the respondents, Forest of Dean
District Council.
Nicholas Cooke
(instructed by Gwyn James & Co, of Lydney, Gloucestershire) appeared on
behalf of the applicant; John Male (instructed by Parmenter, Bowdler & Co,
of Cinderford, Gloucestershire, agents for Forest of Dean District Council)
represented the respondents.
Giving
judgment, PILL J said: This is an application for judicial review by Mr
William Trigg. He seeks to quash a demolition order made by the Forest of Dean
District Council on June 13 1988 under the provisions of sections 264 and 265
of the Housing Act 1985. The order was made in respect of Dock Cottage, Bullo
Pill, Newnham, Gloucestershire, where Mr Trigg lives with his wife. The house
is owned by Mr William Hardy. The order became operative on August 5 1988. Mr
Trigg is 89 years old and, apart from three years in the 1930s, has lived at
Dock Cottage as a tenant since 1923. Since the demolition order was made, the
cottage has been listed as a building of special architectural and historic
interest under the Town and Country Planning Act 1971. In the schedule to the
listing, the cottage is said to be the best survivor of the buildings
associated with Bullo Pill, Bargestock and Tramway.
As a result of
its being listed on November 25 1988, the council were required by section
304(2) of the 1985 Act and did, on January
prohibiting the use of the house. That of course has the same effect, as far as
the tenant is concerned. It is common ground that if certiorari is granted, the
effect will be to determine the closing order which replaced the earlier
demolition order.
Three days
after the demolition order became effective, the landlord commenced proceedings
seeking possession of Dock Cottage, relying upon the demolition order to take
the applicant’s occupation of Dock Cottage outside the protection of the Rent
Acts. This was a course that the landlord was entitled to take. The county
court action has been adjourned pending the outcome of the present application,
which was made on December 23 1988. No action has been taken to enforce the
demolition order or the closing order which replaced it pending the outcome of
the present application.
The demolition
order was made in the following circumstances. In 1987 Mr Trigg requested his
landlord to do repairs. The council became involved in the resulting
discussions. Mr Neil Jacobs, the council’s divisional environmental health
officer, decided to carry out a full inspection of the premises. The inspection
was carried out on December 4 1987. In his affidavit in the present
proceedings, Mr Jacobs states that, following his inspection, he concluded that
Dock Cottage was unfit for human habitation having regard to the criteria in
the 1985 Act, section 604, which provides:
In determining
for any of the purposes of this Act whether premises are unfit for human
habitation, regard shall be had to their condition in respect of the following
matters —
repair,
stability,
freedom from
damp,
internal
arrangement,
natural
lighting,
ventilation,
water supply,
drainage and
sanitary conveniences,
facilities
for the preparation and cooking of food and for the disposal of waste water;
and the
premises shall be deemed to be unfit if, and only if, they are so far defective
in one or more of those matters that they are not reasonably suitable for
occupation in that condition.
There is no
contemporaneous document recording that conclusion.
Following his
inspection, Mr Jacobs prepared a handwritten document dated December 1987 and
headed ‘Report on Conditions’. This formed the basis of a typed document dated
January 1988 and headed ‘Schedule of Work’. Mr Trigg was not aware of the
contents of either document until the respondents’ affidavit was served in the
present proceedings.
The council’s
environmental health committee resolved, on March 28 1988, that a section 264
notice be served. Section 264 of the Act reads:
Where the
local housing authority are satisfied that a house is unfit for human
habitation and not capable of being rendered so fit at reasonable expense, they
shall serve on —
(a) the person having control of the house . . .
notice of a time . . . and place at which the condition of the house and any
offer which he may wish to submit with respect to the carrying out of works, or
the future user of the premises, will be considered by the authority.
I have
referred only to those parts of subsection (1) which are material. Subsection
(2) provides:
Every person
on whom such a notice is served is entitled to be heard when the matter is so
taken into consideration.
Subsection (3)
makes provision for a person on whom a notice is served to submit an offer with
respect to the carrying out of works. Subsection (4) empowers a local housing
authority to accept an undertaking to do works. Section 321 provides:
In
determining for the purpose of this Part whether premises can be rendered fit
for human habitation at a reasonable expense, regard shall be had to the
estimated cost of the works necessary to render them so fit and the value which
it is estimated they will have when the works are completed.
Section 265
provides, so far as is material:
If no
undertaking under section 264 is accepted by the local housing authority . . .
the authority shall forthwith make a demolition order or closing order in
respect of the premises to which the notice under that section relates.
Mr Trigg was
not served with a notice that the housing authority were satisfied that the
house was unfit for human habitation and not capable of being rendered so fit
at reasonable expense. He had no opportunity to be heard on those questions
before the order was made under section 265. It is, however, now accepted on
his behalf that he was not the person having control of the house within the
meaning of that term in section 322 and section 264 of the Act and was not
entitled to notice. Notice was given to Mr Hardy, who replied that he had no
intention of carrying out the specified repairs and said that he was making no
offer to carry out works on the property. He requested the council to make a
demolition order and, on June 9 1988, the council resolved to do so.
I return to
the documents disclosed by the respondents and on which they rely to uphold the
order. On the handwritten document of December 1987, costings appear and these
are totalled at £15,665. With contingencies, Mr Jacobs says in his affidavit
that the total cost is in the region of £20,000. Mr Jacobs then sets out the
basis for his opinion that the house was not capable of being rendered fit for
human habitation at reasonable cost. He states that the current value of the
property was about £20,000. The value with the work done and with a tenant on a
regulated tenancy was £45,000 to £50,000.
When the
resolution to make the demolition order on June 9 1988 was passed, the
committee also had before them a report from Mr N J Davis, the council’s
environmental health officer. There is no affidavit from Mr Davis. He set out
the history of the cottage in his report. Para 3.1 of the report states:
When applying
the criteria for determining unfitness the following matters came to light:
(a) There is comprehensive disrepair throughout
the dwelling.
(b) There is instability in walls, chimneys and
the roof.
(c) Dampness both rising and penetrating is
evident throughout the house.
(d) The internal arrangement and lighting is poor
with only ‘borrowed’ light in the kitchen.
(e) There is no ventilation to the kitchen.
(f) There is no proper drainage system with both
soil and wastes emptying directly into the River. The roof water etc is not
disposed of in a proper system.
(g) The facilities for preparing and cooking food
are inadequate.
Having
considered the council’s position, the report concluded with Mr Davis’
recommendation to the committee that:
Having regard
to the requirements of s265 of the Housing Act 1985 the Committee are advised
that their only course of action is to make a Demolition Order upon the
property.
The tenant’s
position in a situation such as this is in law a vulnerable one. He is not
entitled to notice that the order may be made and, as a result, he has no
opportunity to make representations to the council as to the condition of the
property or the reasonableness of repairing it. He has no right of appeal
against the order. He is deprived of protection under the Rent Acts by virtue
of section 270 of the 1985 Act or, in the case of a closing order, section 276.
The owner will often, as in this case, welcome the making of an order. He can
then obtain vacant possession and submit to the council proposals for the
execution of works designed to secure the reconstruction, enlargement or
improvement of the house or of buildings including the house under section 274
of the Act. If the housing authority give him, and he accepts, the opportunity
to carry out those works, the result may be very beneficial to him. Section 278
of the Act may have the same effect where a closing order is in force. The
weakness of the tenant’s position was recognised by the Court of Appeal in R
v Ealing Borough Council, ex parte Richardson [1983] JPL 533.
Mr Nicholas
Cooke’s first submission on behalf of Mr Trigg, though not persisted in, was
that in the circumstances there was a breach of the principles of natural
justice by the council in their failure to disclose to Mr Trigg the evidence on
which they proposed to make the order. The statutory procedure which the
council followed did not require notice to Mr Trigg or disclosure of
information to him before the order was made. That procedure may leave a tenant
in a vulnerable position, but I see no justification for imposing a duty to
give notice or to disclose when Parliament has laid down a procedure which does
not provide for it. In the applicant’s documentation, there are suggestions
that the council’s motives were improper. That allegation has not been pursued.
While I make other criticisms of the council, I have no reason at all to
believe that they acted in bad faith.
Mr Cooke also
complains of the council’s refusal to disclose the information in their reports
even after the order was made and until they responded to the present
application. That is not now suggested to be a sufficient basis for judicial
review and quashing the order. The point does not arise for decision in a
practical context in the present case, and I make no finding as to whether or
not the council were entitled to rely on Schedule 12A to the Local Government
Act 1972 in refusing disclosure.
The order is
further attacked on Wednesbury principles. It is submitted that the
correct principles were not applied and also that the decision to make the
order was irrational. On the question of unfitness, Mr Male, for the
respondents, submits that Mr Jacobs’ written reports of December 1987 and
January 1988, read with para 6 of his affidavit of April 1989, establish that
the correct test was applied. That is confirmed, he submits, by the report over
the name of Mr N J Davis, environmental health officer, dated May 18 1988. I do
not know how Mr Davis’ report came into existence. There is no explanation in
the affidavit of Mr Jacobs or any memorandum showing its relation to, or how it
arose from, the December 1987 and January 1988 documents.
I should also
refer to a further report which the respondents disclosed on the second day of
the hearing. I was and am surprised that it had not been discovered and
disclosed earlier. The report is undated. One part is signed by R Cowling for
the environmental health officer and the other, in which defects in the house
are set out under the headings in section 604 of the 1985 Act, is signed by Mr
Jacobs. The existence of the report directly contradicts the statement in Mr
Jacobs’ affidavit that the council have now disclosed all the reports to the
court. I offered the council the opportunity to consider making a further affidavit
which would be sworn to deal with the additional document and the circumstances
in which it came into existence, but they did not choose to take that
opportunity.
In that event,
I am not prepared to assume that the document had been placed before a
committee in March 1988, especially as the relevant committee minute refers to
a report, E406, as having been circulated. That description is borne by a
separate report in the bundle and not the newly disclosed report. It is not
possible on the information available to tie in the contents of the newly
disclosed report with the wording of the May 1988 report already mentioned. I
am prepared to accept that the newly disclosed report was prepared at a time
unknown by Mr Jacobs, whose signature the document clearly bears.
Mr Male
rightly accepts that the conduct and reasoning of the council officer is the
conduct and reasoning of the council in this case. He submits that on the
question of unfitness the correct test was followed. There is evidence in the
December 1987 report of the defects observed. Mr Jacobs, an experienced
environmental health officer, had stated that, applying his judgment to that
material, he concluded that the cottage was unfit within the terms of the
statute. On his affidavit, Mr Jacobs clearly believed that it was necessary to
repair all the defects set out in the December 1987 and January 1988 reports to
make the house fit.
While his
conclusion was not recorded in a report at the time of the December 1987
inspection and did not follow the language of the statute, it was not for the
court, Mr Male submitted, to supplant Mr Jacobs’ judgment. Further, it was not
for the court to judge the way in which the survey was conducted or its results
set down. The documents should not be construed like a statute for present
purposes. Mr Male submitted that all the items in the December 1987 report were
capable of coming within the categories set out in section 604 of the 1985 Act.
Even if some of them were not, the majority were, and the decision could not be
impugned by judicial review. In any event, the court in its discretion should
not grant relief to Mr Trigg.
I must and do
bear in mind the limited basis on which a court should intervene in
circumstances such as the present. I also bear in mind that the lack of system
or explanation in the sequence of council documents between December 1987 and
May 1988 does not in itself necessarily involve irregularity in law. One might
have expected, in December 1987, a report expressly identifying the item or items
which, in the view of the surveyor, made or contributed to making the house
unfit within the meaning of the statute, together with an itemised costing, and
also the valuation expressly required by statute, together with the sum
necessary to make the house fit. I will refer later to the valuation required
by statute. One might have expected the report to be submitted to the
environmental health committee.
The court
should, however, look to the substance of the council’s approach and not only
to the form. In my judgment, the first limb of the Wednesbury test is
relevant to the present issue. I refer to the decision of the Court of Appeal
in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223 at p 233, where Lord Greene MR stated:
The court is
entitled to investigate the action of the local authority with a view to seeing
whether they have taken into account matters which they ought not to take into
account, or, conversely, have refused to take into account or neglected to take
into account matters which they ought to take into account.
I have to
consider whether the correct test was applied by the council officer. When I
consider the December 1987 report, I am far from satisfied that the correct
test was applied. That is not simply because as a matter of form the section
604 considerations were not set out, but as a matter of substance the report on
conditions reads as just that, without a distinction being made between
conditions which make a house unfit and conditions in the house which, though
worthy of attention, do not or may not make it or contribute to making it
unfit.
The costings
which, curiously, were not carried forward to the typewritten schedule of work,
cover every item. One item is ‘Sewerage direct to river £2,000’. The River
Severn flows near the property, as is shown on one of the photographs. The
report does not suggest that there is anything wrong in the drainage system
which made the house unfit in this respect. I read the report as showing what
is, no doubt, a very proper concern for the river and the environment, because
the outfall is to the river. That consideration is not, in my judgment,
relevant to the present question of whether the house is fit for human
habitation. Another large item of £950 is under the heading ‘Electrics’. The
report states: ‘Overhaul and replace as necessary to IEE Regulation Standard
providing sufficient lighting points and power points for heating and domestic
appliances’. The need for repair to electrical equipment could, of course, come
under the heading of repairs in section 604, particularly if safety were
involved. No defects in the electrical system requiring repairs are, however,
identified in the report. Specific reference is made to the number of
electrical points for appliances. That would appear to go to convenience and
not fitness. It is far from clear that the author of the report had in mind
fitness rather than modernisation and convenience. There are other smaller
items such as the unparticularised reference to an overhaul of the kitchen area
which suggest that modernisation rather than fitness was in the surveyor’s
mind.
The report is
a record of all defects of which of course a prospective purchaser would want
to know, and, notwithstanding the affidavit of April 1989, I have to conclude
that the council have taken into account matters which they ought not to have
taken into account. Efforts were later made to itemise all the defects under
the section 604 headings, but this does not, in my judgment, remedy the flaws in
the report on the basis on which the council’s subsequent action was taken.
Indeed, in certain respects it adds to the misgivings about the correct matters
being taken into consideration by the council. The Davis report, item B, refers
to instability in walls, chimneys and roof. The only instability in the
original report and the later undated document is to the lean-to part of the
building which, though relevant in this context, by no means supports the
general statement placed before the committee. Item E, ‘ventilation’, and part
of item D, ‘only borrowed light’, are not supported, save as to the pantry, by
the contents of the survey.
I am not
prepared to supplant deficiencies in Mr Jacobs’ survey by selected extracts
from the subsequent survey conducted by Mr Comley [ARICS], the applicants’
expert, as Mr Male requested me to do. Mr Comley concluded that the house was
not unfit, but I do not take that conclusion into account. I should not and do
not make a finding of fact as to whether or not the house is unfit. There may
or may not have been defects in the house which would have justified the
council in deciding that the house was unfit. However, in my judgment, they did
not ask themselves the right questions and did not take the correct matters
into consideration.
It follows
that the figure of £20,000 as the cost of repairs was not one which a
reasonable council could take into account when making their overall decision.
It is impossible to know what conclusion the council would have reached had the
proper test as to unfitness been applied or what figure would have replaced the
figure of £20,000 or what conclusion the council would subsequently have
reached on the basis of sections 260 and 321 of the 1985 Act.
Mr Cooke also
submits that the valuation exercise required by those sections was not
conducted in accordance with the statute, and also that no reasonable council
could have reached the conclusion that it was not reasonable to expect the
landlord to repair the property in the circumstances. The test to be applied is
that which appears in F F F Estates Ltd v Hackney London Borough
Council [1981] QB 503. Stephenson LJ referred to the earlier Court of
Appeal decision
case, Salmon LJ had said at p 870:
It seems to
me that the value must be the price which the saleable interests in the
dwelling would fetch on the open market as between a willing buyer and a
willing seller at the moment when the works are completed.
Stephenson LJ
concluded at p 525:
The
authorities appear to agree in requiring the court to make a realistic approach
to the value of dwelling-houses as saleable assets in the hands of the landlord
when considering the reasonableness of the expense required to improve them,
and therefore to have regard to the presence of tenants and their rights of
continued occupation and the effect that they have on the market value.
It is
unfortunate that it is only in April 1989 that Mr Jacobs’ valuation exercise
appears in writing. Indeed, I find it very surprising that in a matter of such
obvious importance to a tenant of long standing, council officers did not
condescend to make a written valuation and that it is 16 months after the
survey before a figure emerges from them. I also find force in Mr Cooke’s
submission on the basis that Mr Jacobs has not valued the property at market
value with the particular elderly tenant in occupation but has valued it with a
notional tenant in occupation.
However,
recognising the difficulties and uncertainties involved in valuation in cases
such as this, I would not have been prepared to quash the order on the ground
alone that the valuation of the house with and without work done was done on
the wrong basis or was irrational. Nor am I prepared to hold that on Mr Jacobs’
figure it was irrational for him to decide that it was unreasonable to expect
the landlord to repair.
Mr Male’s
further submission was that the court should not exercise discretion to quash
the order because the only result would be that the council would make another
order. I reject that submission, and I trust that the forceful way in which Mr
Male put the point does not indicate that those instructing him will have a
closed mind when they reconsider their duties in accordance with the statute.
Quite apart
from that, circumstances have changed considerably since June 1988 and the
current situation will need to be reconsidered. I have considered the question
of the applicant’s delay in making this application. Very properly, Mr Male
made no submissions on this point, conscious as he was of the council’s refusal
to disclose relevant material to those advising Mr Trigg. There was, in my
judgment, good reason for the delay. I grant certiorari to quash the order.
Certiorari
was granted to quash the demolition and closing orders with costs.
