Housing Act 1974, section 71A and Housing Act 1957, section 9(1A) — Appeal from decision of Hodgson J dismissing application by freehold owners of a mansion block of flats for judicial review — The owners of the flats had sought an order of mandamus to require the local authority to make mandatory repairs grants under section 71A of the 1974 Act — The mandatory repairs grants depended on the execution of works required by notices under section 9(1A) of the 1957 Act — Such notices, requiring some major works, including re-roofing and extensive repairs to the brickwork and stonework of the exterior walls, were served on the long leaseholders in respect of their flats and on the freehold owners of the block in respect of the flats occupied by the protected tenants — Hodgson J held that the notices served on the leaseholders and those served on the freeholders were alike invalid and, consequently, there was no basis for mandatory repairs grants — The notices under section 9(1A) had to be served on the person having control of the house and an individual flat in the block was not a ‘house’ — The Court of Appeal agreed with this ruling, but considered also an alternative suggestion that under section 18 of the 1957 Act the local authority could take the same proceedings in relation to ‘any part of a building which is used, or is suitable for use, as a dwelling’ — This provision, however, although it would enable a repairs notice to be served on a leaseholder under section 9(1A) in respect of repairs to the flat itself, would not extend to works to the roof or common parts, which were not within the demise to the individual leaseholder — As the major object of the repairs notices thus failed, it followed that the basis for requiring payment of mandatory grants under section 71A of the 1974 Act was not established — Appeal dismissed
The following
cases are referred to in this report.
Cohen v West Ham Corporation [1933] Ch 814
Pollway
Nominees Ltd v Croydon London Borough [1987]
AC 79; [1986] 3 WLR 277; [1986] 2 All ER 849; [1986] 2 EGLR 27; (1986) 280 EG
87, HL
Quiltotex v Minister of Housing and Local Government [1966] 1 QB 704;
[1965] 3 WLR 801; [1965] 2 All ER 913; (1965) 63 LGR 332
This was an
appeal by Clayhope Properties Ltd, the freehold owners of the mansion block of
flats called Dover Mansions, Canterbury Crescent, London SW9, from the decision
of Hodgson J (reported at [1987] 1 EGLR 26, (1986) 281 EG 688) refusing their
application for judicial review. The appellants had sought an order of mandamus
requiring the respondents, the London Borough of Lambeth, to make mandatory
repairs grants under section 71A of the Housing Act 1974.
John Colyer QC
and Roger Cooke (instructed by Bernstein & Co) appeared on behalf of the appellants;
Andrew Arden and Miss C Hunter (instructed by Directorate of Administration and
Legal Services, London Borough of Lambeth) represented the respondents.
Giving the
first judgment at the invitation of Kerr LJ, GLIDEWELL LJ said: This is an
appeal against a decision of Hodgson J given on October 8 1986 refusing an
application for judicial review; that is to say, refusing an order of mandamus
requiring the Lambeth London Borough Council to make to the applicants,
Clayhope Properties Ltd, mandatory repairs grants under section 71A of the
Housing Act 1974, amended by the Housing Act 1980.
Clayhope are
the freehold owners of a mansion block of flats called Dover Mansions,
Canterbury Crescent, London SW9. The block comprises 20 flats, served by two
entrances: 14 are held on 99-year leases at low ground rents and six are on
protected tenancies. The roof and some common parts, including the passages and
staircases, are not included in either the leases or the tenancies.
With that
brief introduction I turn to consider the legislation which forms the
battleground of this appeal.
Part VII of
the Housing Act 1974 empowers, and in some cases requires, local authorities to
make grants for the improvement or repair of dwellings. Repair grants are
mandatory if the provisions of section 71A of the 1974 Act are fulfilled, but
otherwise they are discretionary. Lambeth’s finances do not enable them to make
discretionary grants.
Section 71A,
so far as is material, reads as follows:
In so far as
an application for a repairs grant relates to the execution of works required
by a notice under section 9 of the Housing Act 1957 . . .
(b) The authority shall not refuse it if it is
duly made and the authority are satisfied that the works are necessary for
compliance with the notice.
One comes,
therefore, to section 9 of the Housing Act 1957, which was in force at all
times material to this appeal, though its provisions have now been replaced by
similar, though not totally identical, provisions in the Housing Act 1985.
Section 9 is concerned, under the general rubric ‘Unfit premises capable of
repair at reasonable cost’, with the power of local authorities to require the
repair of houses. Section 9(1) gives the local authority power to require the
repair of a house which in their opinion is unfit for human habitation,
provided it is not incapable of being made habitable at reasonable expense.
This case is concerned with subsection (1A), which was added by the Housing Act
1969. It provides as follows:
Where a local
authority . . . are satisfied that a 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.
By subsection
(2):
In addition
to serving a notice under this section on the person having control of the
house, the local authority may serve a copy of the notice on any other person
having an interest in the house, whether as freeholder, mortgagee, lessee or
otherwise.
By subsection
(3):
In this and
the three next following sections references to a house include a reference to
a hut, tent, caravan or other temporary or moveable form of shelter which is
used for human habitation . . .
I leave out
the end of that subsection, the provisions of which are not relevant in this
case.
The phrase
‘person having the control of a house’ is defined in section 39(2) of the Act
as follows:
For the
purposes of this Part of this Act
that is to
say, Part II
the person
who receives the rack-rent of a house, whether on his own account or as agent
or trustee for any other person, or who would so receive it if the house were
let at a rack-rent, shall be deemed to be the person having control of the
house. In this subsection the expression ‘rack-rent’ means rent which is not
less than two-thirds of the full net annual value of the house.
In the present
case it is common ground that the 14 flats the subject of long leases were not,
and are not, let at rack-rents, but if they were to be let at rents exceeding
two-thirds of the full net annual value of the house, the person who would be
entitled to receive that rent would in each case be the leaseholder.
The person
having control of the house is thus, as far as the leasehold flats are
concerned, the leaseholder. In respect of the six other flats, the subject of
the controlled tenancies, it is Clayhope, because they do, or they did at the
material time, receive rack-rents from their tenants.
What is a
‘house’ for the purposes of this Act or at any rate for the purposes of this
Part of this Act? There are two
references in the Act to what the word ‘house’ can include. I have already read
section 9(3), which does not apply. The other reference is in the
interpretation section, section 189(1). That says:
‘house’
includes —
(a) any yard, garden, outhouses, and
appurtenances belonging thereto or usually enjoyed therewith.
(b) does not apply to Part II of the 1957 Act,
but it should perhaps be read because it throws some light on the meaning of
the word ‘house’:
(b) For the purposes of any provisions of this
Act relating to the provision of housing accommodation, any part of a building
which is occupied or intended to be occupied as a separate dwelling.
So for the
purposes of another Part, a part of a building intended to be occupied as a
separate dwelling is a house, but specifically not for the purposes of this
Part of the Act.
If the
premises are not a ‘house’, nevertheless the provisions of Part II of the Act
may apply, because there is another provision which so far I have not reached,
namely section 18, which reads as follows:
(1) A local authority may under the foregoing
provisions of this Part of this Act take the like proceedings in relation to —
(a) any part of a building which is used, or is
suitable for use, as a dwelling . . .
as they are
empowered to take in relation to a house . . .
The
qualification which follows again does not arise in the present case.
So if the
premises are not a house but are part of a building which is used, or which is
suitable for use, as a dwelling — and for this purpose the building itself may
be a building wholly or partly, or the rest of it not at all, in residential
occupation — then that part is a part in respect of which the local authority
may take the same sort of proceedings as they may take in respect of a house
under the earlier parts of that Part of the Act, and thus may serve a section
9(1A) repairs notice. Indeed, as I shall say later, although the question
whether each of these flats is a house is a, if not the, major issue in this
appeal, if the answer is ‘no, each flat is not a house’ it is common ground
that each flat is certainly a part of a building used as a dwelling and section
9(1A) repairs notices can properly be served in respect of each flat.
There are two
other provisions of the Act of 1957 to which I should refer before I come
briefly to the facts. If a repairs notice is served, under section 11 there is
a right of appeal against it. Section 11(1) reads:
Any person
aggrieved by —
(a) a notice under the foregoing provisions of
this Part of this Act requiring the execution of works . . .
may, within
twenty-one days of the service of the notice, demand or order, appeal to the
county court . . .
By subsection
(3), which I can summarise, on an appeal to the county court the judge may
either confirm or quash or vary the notice as he thinks fit. So he has, as it
seems to me, total discretion to arrive at whatever conclusion he thinks right
in all the circumstances; he might quash the notice or he might say that the
notice should be varied by deleting some of the works required to be done.
Finally, under
section 37(1):
Any notice,
demand or order against which an appeal might be brought to a county court
under this Part of this Act shall, if no such appeal is brought, become
operative on the expiration of twenty-one days from the date of the service of
the notice, demand or order, and shall be final and conclusive as to any
matters which could have been raised on such an appeal . . .
I turn now to
the history. In May 1981 Lambeth London Borough Council served a notice on
Clayhope under section 9(1A) in respect of repairs to the whole block. The
council did so on the basis that Dover Mansions as an entity was a ‘house’
within Part II of the Act. Clayhope appealed to the county court. That appeal
stands adjourned and has not yet been heard. If the notice had been upheld on
the appeal, Lambeth accept that they would be liable to pay a mandatory repairs
grant to Clayhope under section 71A, and indeed Clayhope applied for such a
grant. But before anything had happened in respect of that application, there
had been two material changes. By 1984, first, the condition of the block had
deteriorated further, so that the schedule of repairs appended to the 1981
notice needed amendments and additions; second, doubt had arisen whether the
whole block could properly be considered to be a ‘house’. Lambeth therefore
decided to change course; they decided to serve fresh notices, this time the
notices with which this appeal is concerned, 20 in all, one in respect of each
flat, 14 on the leaseholders and six on Clayhope as the person having the
control of the flats the subject of the short tenancies. Those notices were
served on or about March 23 1984 and I should refer briefly to their contents.
As I have
said, 14 were addressed to the individual leaseholders and, apart from the
formal parts of the notices, there is attached a sheet which reads:
The attached
schedule is divided into two parts as follows:
Part A
Internal works of repair in connection with the specified flat;
Part B
External works of repair to the whole block and internal works to the shared
common parts.
Each
recipient of this notice is responsible for all the works specified in Part A
and one twentieth of the cost of the works in Part B of the schedule.
There then
follow some five pages of schedule in Part A and 18 pages in Part B. The works
to the interior of the flats include such things as replastering, replacing
defective window frames and doors. The works to the exterior and to the common
parts are not merely in length and description, but in fact, much more
extensive; in particular, they include a complete reroofing of the entire
property, together with extensive repairs to the brickwork and stonework of the
exterior walls.
Following the
service of those notices, applications were made for grants under section 71A
of the 1974 Act in respect of each flat by the leaseholders and the tenants,
each accompanied by a request that the money should be paid to the receiver
appointed to receive the money on behalf of Clayhope; nothing turns on that.
Clayhope (but
not the leaseholders) appealed to the county court in respect of the six
tenancy flats against the 1984 repairs notices. Those appeals are still
outstanding.
It is clear,
and I believe it to be common ground, that the Part B repairs are substantially
the major part of the repairs required to be carried out in these repairs
notices. All are agreed that the block, and the flats within the block, are in
bad condition and that major repairs are necessary.
In
confirmation of what I have just said, in a letter of March 22 1984 from
solicitors acting, I believe at that stage, on behalf of the leaseholders,
Messrs Zelim & Zelim, they say:
Clearly,
therefore, the lessees have ‘control’ only over the insides of their
flats. As you are aware, the majority of the damage is on the exterior
and common parts, in respect of which the lessees simply cannot have any
control.
However, on
October 17 1984 Lambeth wrote to the solicitors for the applicants, saying in
effect that they had changed their minds again and that current legal opinion
is ‘that we are not able to grant-aid works to common parts and areas of shared
responsibility’. By this time they had doubts as to the validity or effect of
the 20 notices which they had served earlier in that year, and indeed doubts as
to whether they could achieve a situation in which they could be required to
make mandatory grants in respect of the roof, the exterior walls and the common
parts, and therefore they have made no grants at all. Accordingly, Clayhope
made the present application for an order for mandamus in May 1985.
In July 1985
Lambeth were advised by counsel that notices could not validly be served on the
leaseholders, or indeed in respect of individual flats which required repairs
to the roof, the exterior walls or common parts, in so far as they were not
included in the leases or tenancies of the flats.
So one has a
Gilbertian situation. Lambeth, though anxious to have the repairs done, and
though happy to pay any grants which they
which, I should say, will come from the Department of the Environment), argue
that the repair notices of March 1984 in respect of the individual flats are
misconceived and invalid. Clayhope argue that the repairs notices are perfectly
sound and valid and that therefore Lambeth should be ordered to make the
grants. The form of order sought is:
an order of
mandamus directed to the Lambeth Borough Council requiring them to make
according to law mandatory repair grants pursuant to section 71 and 71A of the
Housing Act 1974 (as amended) in respect of each and every flat contained in the
mansion block known as Dover Mansions . . . or alternatively flats nos 2, 5, 8,
12, 14 and 17 contained in Dover Mansions
those being the
subject of the short tenancies.
Mr Colyer, for
Clayhope, accepts that grants under section 9(1A) are payable only if the
repairs notices are valid and effective. He says that he can reach the
conclusion that the repairs notices are valid by one of two alternative routes.
I describe route one shortly as follows:
(i) Each flat is a ‘house’ within Part II of the
1957 Act;
(ii) Under section 189 a house includes its
appurtenances;
(iii) The leaseholders have rights of support,
shelter and way relating to the walls, roof and passages. If Clayhope decline
to honour their obligations under the leases to keep the roof, main walls and
passages under repair, the leaseholders may carry out these repairs themselves.
Thus, the easements are ‘appurtenances’ to, and thus part of, each flat within
the definition of ‘house’ in section 189, which I have already read. Thus, a
notice requiring repair of the common parts and the roof and walls relates to
the ‘house’.
As an
alternative to (iii),
(iv) If the easements are not appurtenances, the
leaseholder nevertheless has the right to do the repairs, as I have already
said, and under section 9(1A) the repairs the subject of the notice need not be
repairs to the ‘house’ itself but may be repairs outside the limit of the
‘house’.
Route two is
the route to be followed if the flat is not a ‘house’ for the purposes of Part
II of the Act. In that case
(i) Each flat is part of a building used as a
dwelling. Mr Arden, for Lambeth, accepts and asserts that this is the case and
accepts that if an application for repairs notices were required only in respect
of the interior of the flats, such notices could be served on each leaseholder
in respect of the individual flats and in respect of works to the flats, and
that mandatory grants would be payable.
(ii) The ‘appurtenances’ way is closed if this
route is followed because the section 189 definition applies only to a house,
but
(iii) The last point, which I sought to describe as
Mr Colyer’s alternative termination to route one, provides a termination to
route two also; in other words, he argues that if each flat is part of a
building used as a dwelling, then an order can still be made requiring repairs
to be done outside that dwelling.
That raises
the following issues: first, the major issue, is a flat a ‘house’ within Part
II of the 1957 Act? Hodgson J said this
about it in his judgment at p 11 of the transcript:*
The
respondents contend that these submissions fail in limine because a flat
in a block is not a ‘house’; it is only a part of a building. I agree. I can
find nothing in section 18 which would justify me in holding that a flat in a
block is a house for the purposes of Part II of the Act. If that had been
intended it could have been specifically provided. And, in this connection, it
is, in my judgment, importantly indicative of statutory intention that specific
provision is made under (b) relating to ‘house’ in section 189 that the word
includes ‘part of a building’ for the purposes of provisions in the Act
relating to the provision of housing accommodation; these provisions one finds
in Part V of the Act. See also Critchell v London Borough of Lambeth
[1957] 2 QB 535 at p 540 per Lord Evershed, Master of the Rolls:
‘In any case,
in my judgment, s9, s10 and s11 of the Act of 1936’ — sections 9, 10 and 16 of
the 1957 Act — ‘use the word ‘house’, in their context, as meaning what is
commonly called a house — that is, a separate structure’.
*Editor’s
note: See (1986) 281 EG 688 at p 692; [1987] 1 EGLR 26 at p 28.
That passage in
that judgment, being a decision of this court, is of course authoritative.
We were
referred to two other authorities which are of assistance: Quiltotex Co Ltd
v Minister of Housing and Local Government [1966] 1 QB 704, a decision
of Salmon LJ, sitting as an additional judge of the Queen’s Bench Division. It
was a question which arose under Part III of the Housing Act 1957; that is the
clearance and compulsory purchase part of the Act — the slum clearance part of
the Act in ordinary parlance. The decision is to the effect that a house
divided into tenements is nevertheless, or can nevertheless be, a ‘house’ for
the purposes of at least that Part of the Act, and for this purpose I apprehend
that the same is true of Part II of the Act, because the definition, in so far
as there is a definition in Part III, is the same as that in Part II.
At the bottom
of p 713 his Lordship said:
In this
connection it is perhaps worth noting that in another part of the Act, Part 2,
there is section 5 which lends some support to the conclusion at which I have
arrived. Section 5(1) reads:
‘Notwithstanding
anything in any local Act or bye-law in force in any borough or district, it
shall not be lawful to erect any back-to-back houses intended to be used as
dwellings for the working classes, and any such house shall for the purposes of
this Act be deemed to be unfit for human habitation: Provided that nothing in
this section shall prevent the erection or use of a house containing several
tenements in which the tenements are placed back to back, if the medical
officer of health for the borough or district certifies that the several
tenements are so constructed and arranged as to secure effective ventilation of
all habitable rooms in every tenement.’
This
postulates a house containing several tenements. Each of these eight houses of
the applicants is, in my view, a house containing several tenements and section
5 at any rate does lend support to the view that ‘house’ covers the genus
‘tenement house’. No assistance can be gathered at all from the so-called definition
of ‘house’ in section 189 because it merely extends the ordinary meaning of the
word but does not attempt to define it.
And so he
decided.
Much more
recently the House of Lords, in Pollway Nominees Ltd v Croydon London
Borough Council [1987] 1 AC 79, had for consideration a question relating
to a block containing 42 flats which were let on long leaseholds. One repairs
notice was served under section 9(1A), in respect of the whole block, on the
freeholder. It was held at all stages — by which I mean at first instance, by
the Court of Appeal and the House of Lords — that assuming, which was not in
dispute, that the whole block was a ‘house’ for the purposes of Part II of the
Act, nevertheless the freeholders were not the persons having control and thus the
notice could not be served on them. The leaseholders collectively were the
persons having control. If I may interpolate, that means that Lambeth’s first
attempt was wrong and that their first change of heart was well founded.
In his speech,
Lord Bridge of Harwich said this at p 90 D:
The main
issue has been argued both in the Court of Appeal and before your Lordships on
the footing that Crown Point can properly be regarded as a ‘house’ within the
meaning of section 9 of the Act of 1957. In so far as that may involve an
admission of fact by the respondent, it is, of course, open to a party to make
any admission of fact he chooses. But in so far as the matter proceeds upon a
concession of law that a modern purpose-built block of flats is a ‘house’ to
which the provisions we are considering apply, I am by no means prepared to
accept it as necessarily correct. We have heard no argument on the point and I
refrain from expressing any opinion on it one way or the other. I apprehend,
however, that a building originally constructed as a single dwelling-house does
not cease to be a ‘house’ under the Act if it is internally converted into a
number of separate residential units which are then sold off on long leases, as
commonly happens as an incident of a familiar form of contemporary property
development. Accordingly, even if we may be addressing an artificial problem in
relation to Crown Point, the question how the definition applies to a building
which is undoubtedly a house where the separate residential units within the
house are all let on long leases at ground rents is one that requires to be
answered.
As I hope I
have made clear, the answer which was given was to the effect that Lambeth’s
first attempt to serve the notice in this case was inappropriate, and that had
they wanted to treat Dover Mansions as a house the proper course would have
been to serve the 14 leaseholders plus the freeholder as together being the
person having control of the whole house. It may be, we are told, that that is
a course which Lambeth will wish to adopt.
In my judgment
Hodgson J was correct in deciding that the individual flats in this building
are not each a house. In my view a flat is not a house within Part II of the
1957 Act. A ‘house’ in its ordinary sense means a separate building. It may
contain one dwelling, or more than one. Whether a particular purpose-built
block of flats is a ‘house’ for the purposes of Part II is a question of fact.
In relation to this block I express no opinion; it may have to be tested later
or it may not. Lambeth may decide that it is a ‘house’; if they do, they may
serve notice accordingly. I assume that if they do, they will serve the notice
on the person whom I have already referred to as being collectively the person
having control in respect of the roof, exterior walls and common parts, and
perhaps a series of individual notices on the leaseholders relating to each
flat separately. But it is not for me to advise them; that is for them.
Since it is my
view that a flat is not a ‘house’, my view is also that route one is barred to
Mr Colyer at its entrance, and it is therefore unnecessary to consider, and I
do not propose to consider, the fascinating question whether the easements of
shelter, support and way are appurtenances or not.
Mr Colyer,
therefore, can succeed only, if at all, by way of route two.
As I have
already said, it is accepted that a repairs notice can validly be served on a
leaseholder of a flat under section 9(1A) in respect of repairs to that flat.
Thus, the issue is: can such a notice also be served which requires repairs to
part of the building not within the demise of an individual flat? Mr Colyer submits that it can. The works are,
it is to be assumed, works which need to be done. He argues that Parliament
must have intended that they should be done. The leaseholder has, either by
express grant or by implication, the power to do the works of repair to the
roof and so on if the freeholder fails to do them. This is enough to enable the
notice to require the leaseholder to do such work, to be valid and effective.
On the
contrary, Mr Arden argues that the legislation empowers the local authority to
serve the notice on the ‘person having control’, because he is the person who
can, and normally will, and should, undertake the repairs to this property. In
relation to the roof and the common parts that person is the freeholder,
Clayhope. The fact that by contract the leaseholder has power to do the work in
default does not make any leaseholder the person having control. Put another
way, the premises a person can be required to repair are those of which he has
control; that is, the premises included in his demise and no more.
In this
respect Mr Arden referred us to the provisions of section 11(3) and section
12(1) of the Act. Section 11(3), so far as material, 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 under section 9(1) of
this Act requiring the execution of works to a house, he shall
. . .
The rest does
not matter; the passage that matters is that which requires the execution of
works to a house.
The same
phrase is to be found in section 12(1), which begins:
Where a
person has appealed against a notice under this Part of this Act requiring the
execution of works to a house . . .
So Mr Arden draws
support from those passages for the proposition that the works must be to the
house or, if one is going by the section 18 route, to the part of the building
occupied as a dwelling, and to nothing else.
I accept Mr
Arden’s argument in this respect as correct. In my view, a notice under section
9(1A) in relation to works on the roof and common parts, which are not within
the demise of any individual leaseholder, cannot be served on the leaseholder
of the flat as an individual.
Mr Colyer
argues that, if this is the case, there is a gap, or lacuna, in the law, which
will continue because the relevant provisions of the Housing Act of 1985
contain the same definition of the ‘person having control’.
Hodgson J
dealt with this argument in his judgment; he said this at p 15 of the
transcript:*
I do not
myself find this lacuna (if it be one) particularly surprising. In Pollway
Lord Bridge said this:
‘I appreciate
that this conclusion may cause inconvenience for local authorities. But I
imagine that normally the contractual rights of the owners of long leasehold
interests to enforce repairing obligations against their lessors will provide
an adequate solution to the problem. This may be the explanation of the fact
that, though the formula found in the definition has been in common use in
statutes since at least 1847, it was not until 1982 that its application to
buildings divided into units let on long leases had to be considered by the
courts. The truth, I suspect, is that generations of parliamentary draftsmen
have been content to use the time-honoured formula without ever contemplating
its application to the circumstances presently under consideration. That must
surely be true of section 39(2) of the Act of 1957 which simply re-enacts the
formula first used in its present context in section 17(4) of the Housing Act
1930. That Act introduced the compulsory procedure which we now see in expanded
and amended form in Part II of the Act of 1957 requiring ‘the person having
control of the house’ to effect repairs to a house which was unfit for human
habitation and which was ‘occupied or of a type suitable for occupation by
persons of the working classes’. The draftsman in 1930 can hardly be blamed if
it did not occur to him to make suitable provision for dealing with problems
arising from flats let on long leases at low rents.’
On the facts
of this case the contractual rights enjoyed by the tenants are capable of
providing, and will no doubt provide, an adequate solution to the problem at
which Part II of the 1957 Act is aimed. The misfortune is that, by limiting the
grant legislation to work performed under a section 9 notice, the legislature
have failed to provide for the making of grants in respect of the ‘outside’
work. Whether that comes about by oversight or intention matters not. If it is
an unintentional lacuna it is for the legislature, if it wishes, to fill it; if
it is an intentional restriction of grant aid (and this cannot be excluded)
then, of course, whilst one may or may not think it fair, the court is in no way
concerned.
*Editor’s
note: See (1986) 281 EG 688 at p 694; [1987] 1 EGLR 26 at p 29.
If in a
particular case a block of flats is a ‘house’ for the purposes of Part II, a
notice in respect of the roof and common parts can be served on the freeholder
and the leaseholders together, as I have already said, following Pollway.
But if not, and there is no person who can be required by the local authority
to repair the parts not demised, like Hodgson J I do not find this surprising.
Parliament has not yet thought it right to extend this part of the legislation
to all flats let out on long leases and thus must be assumed to think it right
to rely upon the contractual provisions as between freeholder and long leaseholder.
Mr Colyer
further argues that even if we reach, as I have now done, the conclusion set
out above, we should not hold that the section 9(1A) notice is ‘invalid’. He
argues, too, that the part of the works which the leaseholder cannot be
required to do can be severed from the rest; in other words, disregard Part B
and leave Part A standing. I must confess that it is not totally clear to me
that these are separate arguments or part and parcel of the same argument, but
I believe it is the latter.
Since there is
a right of appeal to the county court, Mr Colyer argues that that is the way in
which the notice can be quashed, if it is to be quashed. The High Court should
not achieve the same effect by declaring it invalid. This is not, he says (as
in Pollway) a notice addressed to the wrong person; it is a notice
addressed to a person to whom it can be addressed, containing extraneous
material but still valid, and thus, under section 37(1), it cannot properly be
challenged save by way of appeal to the county court.
Mr Colyer
refers us also to the decision of this court in Cohen v West Ham
Corporation [1933] Ch 814, which is really to the same effect as section
37(1), namely that the notices are valid unless and until an appeal against
them to the county court succeeds.
As for that
argument, Hodgson J said trenchantly:
In my
judgment, a notice which required a recipient to do work which is the main part
of the requirement and which the local authority have no right in law to
require him to do is as invalid and void as is a notice served on the wrong
recipient: see Pollway.
Mr Arden
argues that it is clear that the purpose of these repair notices was to ensure
that all the work was done. The work to the roof and common parts is, as I have
already said, by far the major part. Whether the local authority would have
served on the leaseholders notices requiring only the works to the interior of
their flats, if they were not able to require the works to the roof and common
parts to be done, must be in doubt; and he urges us not to hold that the
notices remain valid.
For my part, I
accept that, having decided that the leaseholder cannot be required to do the
work to the roof and common parts, the major object of the repairs notices
fails. In my view, neither this court nor Hodgson J had the material upon which
we could sever the requirement for repairs, one part from another. If the
appeals to the county court had been pursued, or if they are pursued, the
county court judge can do exactly that if he thinks right.
Mr Colyer
concluded his submissions by saying that although he is in form asking for
mandamus, what he really wants is a declaration as to his rights. In effect, in
my judgment there is inherent a declaration that a flat is not a ‘house’ for
the purposes of Part II of the Act, and that in respect of the repairs to the
roof and common parts, these notices accordingly could not be served on the
leaseholders. But if Mr Colyer means that what he really wants is a
declaration, that nevertheless the notices are still valid, and if he had
sought that initially, I would refuse to grant such a declaration. Whether I
would actually say, as did Hodgson J, that the notices were invalid matters
not. What I am quite positive is that it would be pointless to grant a
declaration that they were valid, when their major point will not be achieved.
But a
declaration is not what these proceedings are asking for. What the applicants
seek is a mandamus to require the local authority
of Hodgson J on the main issue, with which I entirely agree, inevitably means
that the basis for requiring payment of mandatory grants is not established.
Accordingly,
in my view the judge was right to dismiss the application and I would therefore
dismiss the appeal.
SIR GEORGE
WALLER agreed and did not add anything.
Also agreeing,
KERR LJ said: I only add a few words on what appears to me to be the short central
issue among the many peripheral matters which have been argued.
This is the
question whether the holder of a long lease of a flat in a block of flats can
be required to carry out repairs to the common parts of the block pursuant to a
notice served upon him individually under section 9(1A) of the Housing Act
1957.
That provides
that the notice must be served upon ‘the person having control’. The person
having the requisite control is defined in section 39 as the person who
receives, or would be entitled to receive, the rack-rent of the premises in
question.
It is of
course clear that in relation to repairs required to be done by the long
leaseholder to his own flat, a section 9(1A) notice is good. He is the person
in control of the flat within the definition of section 39(2). And although
section 9(1A) refers to a ‘house’, the proceedings can be served upon him, and
the same provisions apply r utatis mutandis, by virtue of section 18,
which provides that the like proceedings may be taken in relation to ‘any part
of a building’. In my view it is only because of section 18, for the reasons
explained by Glidewell LJ, that a section 9(1A) notice is effective to require
repairs to flats to be carried out by the persons in control of them within the
terms of section 39(2).
The central
issue, however, is whether such a person, by reason of such a notice served
upon him individually, can also be required to carry out repairs to the common
parts of the block. For that purpose I take the roof of the block as an example,
which is in fact of particular importance here. In what relationship does the
tenant of any particular flat stand to the roof of the block?
There are, so
far as I can see, only two connections between him and the roof; and certainly
no others have been mentioned in argument. Both concern rights which he has in
relation to the roof. Broadly speaking, he has a right to the protection of the
roof against the ingress of rain and so forth. Second, he has the right to
repair the roof if the landlord does not do so pursuant to the terms of his
lease. He may have those rights expressly by the terms of his lease, by demise
as in this case. Or he may have them by virtue of the reference to
‘appurtenances’ in section 189 of the 1957 Act, though in my view only in the
context of houses and not in the context of parts of a building. Or he may have
them by virtue of section 62 of the Law of Property Act 1925, which refers to
rights, appurtenances and so forth.
However, these
factors merely involve the possible existence of rights enjoyed by the
tenant in relation to the roof. That obviously does not have the effect of
making a tenant of a flat a person who is in control of the roof for the
purposes of section 9(1A) read together with section 39(2) of the Act. The Act
is not concerned with rights. As shown by the heading to Part II, it is
concerned with provisions for securing the repair, maintenance and sanitary
conditions of houses. Houses and parts of buildings under the control of
persons defined in section 39(2) are the subject-matter of Part II; not the
power to exercise rights.
For those
reasons I conclude that Part B of these notices could not properly be served
upon the individual leaseholders of any of these flats.
I do not
desire to add anything on any other issue raised on this appeal, beyond
thanking counsel for their very clear arguments.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
A petition by
the applicants for leave to appeal from this decision was dismissed by the
Appeal Committee of the House of Lords on November 16 1987.
