Houses unfit for human habitation–Word ‘shall’ in sections 9 and 16 of Housing Act 1957 imperative–No discretion to proceed instead under Public Health Act 1936–Appeal by district council dismissed
This was an
appeal by Kerrier District Council from a judgment of the Queen’s Bench
Divisional Court in favour of Guppys (Bridport) Ltd on an application by the
company for an order of mandamus directed to the council. The Divisional Court
had held that ‘shall’ in sections 9 and 16 of the Housing Act 1957, which deal
with the duty of a local authority when satisfied that a house is unfit for
human habitation, was imperative, and that a local authority was in consequence
bound to take the appropriate action under those sections once satisfied of the
matters set out therein. The Divisional Court’s decision was reported at (1975)
236 EG 645, [1975] 2 EGLR 30.
Raymond Sears
QC and Anthony Dinkin (instructed by Sharpe, Pritchard & Co, agents for F J
Pearson, Council Offices, Camborne) appeared for the council; Robert Pryor
(instructed by Turner, Peacock, agents for Hollowell & Bollam, of Weymouth)
represented the respondents.
Giving the
first judgment, ORR LJ said that Guppys owned two back-to-back houses, which,
it was common ground, were unfit for human habitation for the purposes of
section 4 of the Housing Act 1957. It had not been judicially determined
whether they were capable of being made fit at reasonable expense. Both were
let to protected tenants, who had refused an offer of other accommodation by
Guppys. Guppys had been willing at all times to convert the houses into a
single house, but they could not do so without obtaining vacant possession. The
council claimed that because of intense pressure they were unable to find other
accommodation for the tenants.
On March 19
1974 the council served notice on Guppys under section 93 of the Public Health
Act 1936, requiring them to repair the roofs of the houses which were alleged
to constitute a nuisance under the Act. That was not done, a complaint was made
by the council and a summons was issued under section 94 of the Act. On July 1
1974 Guppys’ solicitors wrote to the council: ‘. . . the council is in default
in exercise of its mandatory duties under the Housing Act 1957, 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.’ The council replied:
‘The council accepts that the above properties are unfit for human habitation,
but it is contended that neither 9 nor . . . 16 . . . is mandatory, . . . and
that the council has the discretion as to the use of Housing Act powers or
section 93 of the Public Health Act 1936. As you know, in this instance my
council chose the latter procedure after taking into account all the
circumstances of the case.’
The repairs
not having been carried out, the magistrates’ court, on the council’s
summonses, made an order that the work should be done within two months, and an
appeal by Guppys against that order was dismissed. Meanwhile, on October 15
1974 Guppys applied for mandamus. An affidavit on behalf of the council stated
that the houses had been repaired but were still unfit within sections 4 and 18
of the Housing Act 1957.
The issue
before the Divisional Court was whether the provisions of sections 9 and 16 were
mandatory or whether the council could proceed under one or other of the
sections or under the provisions of the 1936 Act. Looking at the 1957 Act
itself, and the word ‘shall’ in the context of that Act, it was difficult to
see how it could be treated as other than imperative. The Act used ‘shall’ or
‘may’ very frequently. It plainly drew a distinction between them.
As to the
wider aspects of the council’s argument, he (his Lordship) had not been
satisfied that the provisions in the Housing Act 1974 as to improvement grants
would be stultified, but it was in any event impossible to treat the 1974 Act
as being in any way a guide to the construction of words used in an Act passed
17 years earlier. The fact that a meaning given to ‘shall’ in the earlier Act
might have an untoward effect in the later Act might be of some relevance, but
it was a very minor matter in relation to the canons of construction. He (his
Lordship) had not been led by the council’s argument based on other sections to
conclude that the two ‘shalls’ in sections 8 and 16 should be construed as
other than imperative. He did not propose to refer to all the statutory
provisions on which the council had relied.
As to the
council’s other main general argument that there would be a great danger of a
vast number of applications for mandamus, he was not satisfied that that was
likely to happen, having regard inter alia to the fact that the issue of
mandamus was discretionary. Be that as it might, however, it was a matter for
Parliament to deal with, and the council’s argument did not persuade him (his
Lordship) to doubt the conclusion which he would otherwise reach that ‘shall’
in sections 9 and 16 was to be construed as imperative.
MEGAW LJ and
BROWNE LJ agreed.
The appeal was
dismissed with costs.
Leave to
appeal to the House of Lords was refused.
