Housing Act 1964, Part IV, control orders — Application for judicial review seeking order of certiorari to quash control order made by local authority and injunction to compel restoration of possession, management and control to applicants — Applicants were the owners of Tooley Hotel and Tooley House, premises occupied as a common lodging house, mainly by homeless men — Under section 73(1) of the Act a local authority can make a control order if it appears that it is necessary in order to protect the safety, welfare or health of persons living in the house — After a history of problems, notices served under the Housing Acts, refusal by applicants to ameliorate appalling conditions and threats by them to close the premises if certain undertakings were not given by the authority, the authority made a control order — Control order challenged by applicants mainly on the grounds (a) that the premises were not a ‘house’; (b) that the authority’s dominant consideration was to keep the premises open and that, as this was either an improper or an irrelevant consideration, the order was ultra vires; and (c) that the authority had failed to have regard to any realistic estimate of the cost of works before making the order — Held, following the case of Re Ross and Leicester Corporation, that the premises constituted a ‘house’ within the meaning of section 73(i); that the authority did not act unreasonably or unlawfully in making the order and that it was not ultra vires; and that the 1964 Act did not envisage the preparation of realistic estimates of costs before the making of the control order — Held also that it was proper for the court to consider the application for judicial review notwithstanding pending appeals to the county court under sections 82 and 83 — Application for judicial review dismissed
This was an
application for judicial review by Lewis Levy Ltd, owners of the premises known
as The Tooley Hotel, 147 Tooley Street, and Tooley House, Unicorn Passage,
London SE1. The respondents were the London Borough of Southwark.
Michael Barnes
QC and C J Lockhart-Mummery (instructed by Paisner & Co) appeared on behalf
of the applicants; D J Turner-Samuels QC and W Birtles (instructed by J B
Parker, deputy town clerk and solicitor, London Borough of Southwark)
represented the respondents.
Giving
judgment, STEPHEN BROWN LJ said: This is an application for judicial review by
Lewis Levy Ltd, who seek an order of certiorari to bring into this court and to
quash a control order made by the London Borough of Southwark on October 6 1982
under the provisions of section 73 of the Housing Act 1964 in respect of
premises known as The Tooley Hotel, 147 Tooley Street, and Tooley House,
Unicorn Passage, London SE1.
Section 73(1)
of the Housing Act 1964 provides:
A local
authority may make an order under this section (in this Part of this Act
referred to as a ‘control order’) as respects a house in their district which
is occupied by persons who do not form a single household — (a) if an order
under section 12 of the Act of 1961 is in force as respects the house, or a
notice has been served or direction given as respects the house under section
14, section 15 or section 19 of that Act, or (b) if it appears to the local
authority that the state or condition of the house is such as to call for the
taking of any such action as may be taken under any of those sections, and if
it appears to the local authority that the living conditions in the house are
such that it is necessary to make the control order in order to protect the
safety, welfare or health of persons living in the house.
A control
order enables a local authority to take over the management of a house in
multiple occupation where it appears to it that such action is necessary to
protect the safety, welfare or health of persons living in the house. When
made, the order becomes operative immediately and enables the council to enter
into possession of the premises and to take control. The order may remain in
force for a period of up to five years. While it is in operation the owner is
dispossessed and the council takes control and is entitled to receive income
from those occupying the building. The owner is entitled to receive periodical
payments calculated according to a proportion of the gross rateable value.
Sections 74 to
78 inclusive make provision for its general effect and its effect on those
specifically affected by its operation. Section 79 of the Act provides that
after the control order has been made the local authority shall prepare a
‘scheme’ which will give particulars of all works required to be carried out
and involving capital expenditure, including an estimate of the cost. It also
involves the preparation of a revenue account. This is required to be done not
later than eight weeks after the date on which the control order comes into
force. The section further provides that a copy of the scheme shall be served
on a dispossessed proprietor. The scheme will involve not only the promulgation
of the particulars of works of a capital nature which the authority considers
necessary, but in respect of the revenue account it will show on one side the
estimate of income over the period of five years and on the other side the
expenses, and the proportion of the gross rateable value which is relevant. If
there is a surplus on the revenue account this will be set against the annual
cost of the capital works. At the end of five years the balance in favour of
the authority — as it is almost certain to be — will become a charge on the
property. At the end of the five years the proprietor becomes entitled to
resume possession of the premises but is liable to pay to the authority any sum
which represents a balance in its favour following the implementation of the
scheme prepared under section 79. It is clear that a control order is a drastic
step which can only be taken by a local authority if it appears to it that it
is necessary in order to protect the safety, welfare or health of persons
living in the house.
The Tooley
Hotel and Tooley House, which it is convenient to refer to as ‘the premises’,
are part of a substantial building on five floors including a basement fronting
on to Tooley Street and having secondary access to Unicorn Passage and via a
narrow passage to Vine Lane. The premises were built in the 19th century and,
while called an hotel, in fact comprise what is generally known as a common
lodging house. The affidavit of Mr Martin Joseph Walsh, a housing welfare
officer employed by the London Borough of Southwark, shows that on October 6
1982 there were in the premises 192 beds in use. The accommodation in the
building included five private rooms, 24 cubicles, 36 curtained cubicles and
127 dormitory beds. The dormitories varied in size, but the majority were
four-bedded. The occupants of the premises were principally men who booked in on
a weekly basis. The majority were referred to the
and were homeless men.
Mr Lewis
Aronson, the managing director of the applicant company, says in his affidavit
that some of the persons who occupied bed spaces came independently for the
night. Such persons, he says, might be long-distance motor lorry drivers,
construction workers or dock workers away from home and other casual workers.
The facilities
provided simply consisted of a bed for the night. The premises were open
between 3 pm and 10 am the following morning. No food was provided and there
was no communal area or lounge. No heating was provided. There were a number of
wash basins and lavatories. Mr Aronson also says in his affidavit that owing to
the age of the premises and the use to which they have been put the state of
repair and condition thereof have not been, in his phrase, ‘wholly
satisfactory’ and that the proper and practical solution to this problem has
long been an issue between the company and the council.
Mr David
Francis Smedley, a group leader in the respondent council’s environmental
health service division of its housing department, puts the matter more
forcibly. In his affidavit he refers to the appalling conditions in the hostel
and produces as exhibit DFS3 a number of photographs which show the condition
of various parts of the premises. In his second affidavit Mr Smedley refers to
what he found on inspecting the premises in November 1982 after the council had
entered into possession:
(a) The standard of cleaning was particularly
low, with accumulation of dirt and filth adhering to most vertical and
horizontal surfaces, plus accumulations of rubbish strewn around various rooms
and passageways and under beds. Faecal matter and sputum was found adhering to
walls; certain of the cubicles were in a particularly filthy condition. A
strong pungent odour of faecal matter, urine, body odour and stale smoke was
evident in all parts of the building.
(b) Many of the windows were found to be in a
filthy condition with much broken glazing and rough boarded repairs; in
addition a number of residents had attempted to reduce draughts by affixing old
blankets and other items over the openings. The overall condition of the windows
was such that ventilation could not be controlled.
(c) Many of the stud partitions had been damaged
and the subsequent holes filled with rubbish and papers. Evidence of small
localised fires was noted apparently due to cigarette ends being stubbed out in
these rough niches.
He says he was
informed by residents and verily believed that the ceiling plaster in a large
dormitory on the third floor had collapsed within the 24 hours prior to the
inspection.
In this
affidavit he went on to refer to fallen plaster and then to his concern for the
availability of a means of escape in case of fire. He spoke of the condition of
the sanitary facilities as being extremely poor; the wc pans were in a filthy
and fouled state, as were the lower parts of the cubicle walls. Flushing
cisterns failed to operate properly, and one pan was split and leaking.
Generally throughout the dormitories, passageways and stairways the artificial
lighting was very poor, light bulbs being either blown or missing, or the
bulb-holders or switches being defective. Some internal dormitories had no
artificial light available.
It is not
disputed by the applicants before this court that the condition of the premises
at the relevant time was such that it could properly be said in the words of
section 73(1) to appear ‘to the local authority that the living conditions in
the house are such that it is necessary to make the control order in order to
protect the safety, welfare or health of persons living in the house’.
Mr Smedley
further says in his affidavit that the respondents have been concerned with the
safety, welfare and health of those living in the premises in question for many
years. In December 1973 the Southwark Forum of the Single Homeless Person
produced a report on the hostel which was published by the Campaign for the
Homeless and Rootless. Further, the appalling conditions in the hostel have
worsened over the years, as the applicants have done little work to improve the
conditions. In 1978 the respondent council set up a working party on the hostel
which reported to its housing committee in October 1978. The respondents
desired to keep available the badly needed hostel accommodation in the borough.
Accordingly, the housing committee recommended the acquisition of the entire
premises with a view to managing it themselves. The respondents believed that
there was a risk that the applicants would dispose of the premises with the
result that a number of men would be rendered homeless. The housing committee,
therefore, recommended that failing a negotiated acquisition the respondents
should use their compulsory purchase powers.
On May 6 1980
the respondents made a compulsory purchase order — ‘The London Borough of
Southwark (Tooley Street Hostel) Compulsory Purchase Order 1980′. A copy of
this order and the statement of reasons attached to it is annexed to the
affidavit of Mr Lewis Aronson, the applicants’ managing director. The statement
of reasons included the following:
(a) There is a clearly demonstrated need for
accommodation of the kind provided by Tooley Hotel.
(b) That without the council acquiring the
premises there is a considerable risk that the premises will be disposed of by
the present owners and that the land or building could be developed for a
purpose which does not fulfil the need.
(c) It is a practical management proposition to
take the hostel into housing department management.
(d) That the probable financial implications
would not be unfavourable by comparison with other housing costs.
(e) That continued use of the premises as a
hostel for homeless and rootless persons could conform with the housing
strategy and the long-term planning aims of the Hay’s Wharf area.
The statement
of reasons concluded with a statement that the works of repair and improvements
necessary to the hostel are estimated at December 1978 prices at £161,900. The
applicants, however, objected to the compulsory purchase order.
In April 1982,
before any inquiry came to be held, the council withdrew the compulsory
purchase order. It would appear that they considered that they did not have the
necessary financial resources to proceed to completion. A report of the
director of housing (head of environmental health service) dated April 7 1982
to the housing committee and exhibited as DFS6 to the affidavit of David
Francis Smedley refers to this.
On May 28 1982
the respondents served upon the applicants a number of notices under the
Housing Acts 1957, 1961 and 1980 requiring the carrying out of various works to
the premises. There were 11 notices in all and, in particular, certain notices
were served in pursuance of section 15 of the Housing Act 1961 in respect of
the Tooley Hotel requiring the owners to remedy defects relating to personal
washing facilities and drainage and sanitary conveniences. These notices are
exhibited as DFS8 annexed to the affidavit of David Francis Smedley.
The applicants
did not appeal against these notices and in due course the time for carrying
out the relevant works expired. The position was reported to the respondents’
housing committee on July 14 1982. Mr Smedley’s affidavit states:
It became
clear from discussions between officers and the applicants that they were not
prepared to comply with the notices or allow the council to carry out the works
in default. Their response to the respondents was to announce that they would
rather close the hostel completely than carry out any work to improve the
safety, welfare and health of the residents of the hostel.
On July 14
1982 the housing committee resolved:
(b) That in the event of a threat of imminent
closure of the hostel action be taken under the control order provisions of the
Housing Act 1964 so as to safeguard the health, safety and welfare of the
residents and in particular to prevent their eviction from the premises.
Mr Aronson’s
affidavit shows that on September 21 1982 a meeting took place between
representatives of the applicants and of the respondents and that at that
meeting the company indicated to the council that it would close the hostel
unless it received an undertaking from the council that no work would be
carried out or expense incurred for which it would become liable without one
month’s prior notice from the council. This was confirmed by a letter written
on behalf of the applicants by their surveyor on September 24 1982 and is
exhibited to Mr Aronson’s affidavit as exhibit LA2. The letter refers to the
meeting and continues:
During this
meeting you confirmed to our client that the statutory period in respect of the
above notices
that is to say
the notices served under the provisions of the Housing Acts
had now
expired and that your council is entitled to enter upon the premises and carry
out the work at his company’s expense.
Bearing in
mind the considerable expense involved our clients find that they cannot
continue trading with such a threat hanging over their heads. They have
therefore decided to close the premises unless they receive an undertaking from
your council that no work will be carried out or expense incurred for which
they will become liable without one month’s prior notice.
Your early
reply on this point is necessary if the Tooley Hotel is to remain open.
The
respondents have disclosed on discovery various reports of their officers to
the housing committee and to other relevant subcommittees together with minutes
of committee meetings. These form part of a separate agreed bundle of documents
before the court. On October 6 1982 the director of housing made a report to
the housing committee. The purpose of this report is stated as being ‘To report
further on the Tooley Hotel’. In this report he reviewed the background and
recalled the resolution of the housing committee at its meeting held on July 14
1982:
(a) That the action taken under the Housing Acts
to secure improvements at the hostel be endorsed, and (b) that in the event of
a threat of closure of the hostel, action be taken to apply a control order so
as to safeguard the health, safety and welfare of the residents and in
particular to prevent their eviction from the premises.
Under the
heading ‘Present position’ he stated: ‘3.3 Contingency plans have been laid for
the making of a control order and the takeover of the hostel if there is any
attempt by the owners to close the premises.’
In paragraph 4
he set out options for further action:
4.1 In the light of the developments which have
taken place since members last considered the matter, the following options for
further action are presented for consideration: (a) Continue with the
enforcement action under the Housing Acts and prosecution of the owners. If the
owners attempt to frustrate this action by closing the hostel apply a control
order and take over the premises. (b) Apply a control order now and manage the
premises for up to five years. The failure of the owners to comply with the
statutory notices strengthens the council’s case for the need for such an order
and there is now more chance of the making of a control order being upheld in
the courts. (c) Apply a control order immediately followed by a compulsory
purchase order. The North Southwark Community Development Group and Southwark
Consortium have made strong representations for the council to take this line
of action.
In point of
fact, on the morning of October 6 Mr Lewis Aronson, the applicants’ managing
director, telephoned Mr Smedley and informed him that the applicants intended
to close the hostel immediately unless the respondents gave an undertaking that
no works would be carried out in default by the council. Mr Smedley told him
that he was unable to give such an assurance.
The matter was
therefore considered by the Public Services Urgency Subcommittee on October 6
1982. Exhibit DFS10 annexed to the affidavit of David Francis Smedley is the
report of the head of the environmental health service to that subcommittee and
it includes its resulting authorisation. The report includes as paragraph 3.4
the following:
The conditions
which are currently of concern include the repair and maintenance of the common
parts of the premises, the facilities, the hygiene and cleanliness of the
building, the inadequacy of the lighting; ventilating and heating and the
number of persons allowed to occupy the building having regard to the foregoing
and the size of the building. As such, they may be dealt with under sections
12, 14, 15 and 19 of the Housing Acts 1961.
3.5 There is, in addition, inadequate provision
for means of escape in case of fire and it is considered that the living
conditions are such that the health, safety and welfare of the occupants is not
adequately protected.
3.6 Contingency plans have been laid for the
making of a control order and the taking over of the proper management of the
premises, should the committee decide to adopt such a course of action.
The
recommendation of the report is contained in paragraph 5.1:
As regards
the house consisting of the Tooley Hotel, 147 Tooley Street, London SE1, and
Tooley House, Unicorn Passage (off Tooley Street), London SE1, because the
state and condition of the house is such as to call for the taking of action
under sections 12, 15 and 19 of the Housing Act 1961, and because it appears
that the living conditions in the house are such that it is necessary to make a
control order under section 73 Housing Act 1964, to protect the safety, welfare
and health of persons living in the house that a control order is made and
served immediately.
This
recommendation was accepted and a control order was made and served on October
6 1982.
A copy of the
control order is exhibited as DFS11 annexed to the affidavit of David Francis
Smedley. An appendix to the order gives as the principal grounds for making the
control order:
(1) The house to which the control order relates
is occupied by persons who do not form a single household.
(2) It appears to the council that the state or
condition of the house is such that action may be taken under section 12,
section 15 and section 19 of the Housing Act 1961.
(3) It appears to the council that the living
conditions in the house are such that it is necessary to make the control order
in order to protect the safety, welfare or health of persons living in the
house.
The grounds as
thus stated follow precisely the provisions of section 73(1)(b) of the Housing
Act 1964. On November 11 1982 the applicants gave notice of appeal against the
making of the control order pursuant to the provisions of section 82 of the
Housing Act 1964 which provides for an appeal to the county court. In their
notice of appeal they give as the grounds:
(1) That the state or condition of the premises
was not such as to call for the taking of any action under sections 12, 15 or
19 of the Housing Act 1961; (2) that it was not necessary to make the control
order to protect the safety, welfare or health of persons living in the house.
This appeal is
now pending in the Lambeth County Court.
On November 26
a scheme of works under the provisions of section 79 of the Housing Act 1964
was served on the applicants. The schedule of works formulated by the
respondents under the scheme involves some 114 pages. The scheme was prepared
by an independent firm of construction consultants. A copy of the scheme is
exhibited to the affidavit of Alan Charles Leech filed on behalf of the
applicants and is marked exhibit ACL2. It shows an estimated capital
expenditure of £360,000. Having regard to interest and taking into account an
estimate of the balances which would from time to time accrue to the council
out of the net amount of rent and other payments received from persons
occupying the house, and after deducting compensation payable under the Act,
the balance due at the end of five years from the owner to the council was
estimated to be a sum of £524,426. This would constitute the owner’s estimated
net liability at the time when the premises were due to be returned to him and under
the provisions of the Act it would be made a charge on the property.
The Housing
Act 1964, by section 83, provides for an appeal against the scheme to the
county court. On December 20 1982 the applicants gave notice of appeal against
the scheme served on November 26 1982 and stated as the grounds of this appeal:
(1) That having regard to the condition of the
house and to the other circumstances, any of the works of which particulars are
given in the scheme (whether already carried out or not) are unreasonable in
character or extent, or are unnecessary; (2) That any of the works do not
involve expenditure which ought to be regarded as capital expenditure; (3) That
the number of individuals or householders living in the house, as specified by
the respondent in the scheme, is unreasonably low; (4) That the estimate of the
surpluses on revenue account in the scheme is unduly low on account of some
assumptions, whether as to rents charged by the respondent or otherwise, made
by the respondent in arriving at the estimate as to matters which are within
the control of the respondent.
The notice in
fact cites all the four grounds (a), (b), (c) and (d) which are provided for in
section 83(1) of the Act. This appeal is also currently pending in the Lambeth
County Court.
Notwithstanding
their appeals to the county court pursuant to the provisions of sections 82 and
83 of the Housing Act 1964 the applicants now seek judicial review by this
court of the respondents’ decision to make the control order on October 6 1982.
By their notice of motion of December 8 1982 the applicants seek an order of
certiorari to quash the control order and, secondly, an injunction to compel
the London Borough of Southwark to restore possession, management and control
of the premises to the applicants. Initially they gave two grounds upon which
relief was sought:
1. Under
section 73 of the Housing Act 1964 a control order may only be made in respect
of a ‘house . . . which is occupied by persons who do not form a single
household’. The subject premises, which are an hotel and/or common
lodging-house, do not constitute a ‘house’ within the meaning of section 73 and
the order was made beyond the powers of the London Borough of Southwark.
2. The
predominant purpose of the control order was to compel the continued operation,
and availability to the public, of the Tooley Hotel. Such a purpose, which may
be within the compulsory purchase powers of the London Borough of Southwark, is
beyond their control order powers under the Housing Act 1964.
Two additional
grounds are now relied upon, and the notice of motion has been amended
accordingly. They are as follows:
3. The London
Borough of Southwark took into account an immaterial consideration in the
making of the said order, namely the purpose of compelling the continued
operation and availability to the public of the Tooley Hotel.
4. The
borough failed to consider, and failed to have regard to, any realistic
estimate of the cost of works considered by them to be necessary in furtherance
of the said order.
In relation to
the first ground Mr Michael Barnes, for the applicants, does not contest that
the building in question is occupied
that the Tooley Hotel does not constitute a ‘house’ within the meaning of
section 73. Mr Barnes relies upon a passage in the judgment of Lord Denning MR
in the case of Ashbridge Investments Ltd v Minister of Housing and
Local Government [1965] 1 WLR 1320. The facts in that case were entirely
different from those in the present case. It concerned a clearance area under
section 42 of the Housing Act 1957 and the point in question arose from the
action of the Minister of Housing and Local Government by which he had
differentiated between two apparently similar buildings. The inspector had
recommended that one building should be placed in the ‘grey’ area and the other
should remain in the ‘pink’ area on the compulsory purchase order map. This
differentiation would have resulted in a different basis of compensation for
the two buildings.
After
referring to the particular facts of the case, Lord Denning said at p 1324E:
It is
therefore a matter of considerable importance to determine whether any
particular building is a house which is unfit, or a house which is fit, or
another building. We have here an extraordinary situation. In this terrace
Ashbridge Investments Ltd own two houses. They are numbered nos 17 and 19,
Grosvenor Street, Stalybridge. They look very alike from the outside. They are
both unfit for human habitation: and the local authority put them both in the
pink area. But the Minister, on considering the order, has held that no 17 is a
house and that no 19 is not a house. So he has taken no 19 out of the pink area
and put it into the grey. The owners regarded this as a very strange decision
and challenge the Minister’s order.
The
difficulty in this case arises because the Housing Act 1957 does not define a
house except by saying (section 189(1)) that it includes ‘any yard, garden,
outhouses, and appurtenances belonging thereto or usually enjoyed therewith’.
That does not help us much to say when a house is not a house. But it is
apparent that a ‘house’ in the Act means a building which is constructed or
adapted for use as, or for the purposes of, a dwelling. It need not actually be
dwelt in, but it must be constructed or adapted for use as a dwelling, or for
the purposes of a dwelling.
Mr Barnes
submits that the premises known as the Tooley Hotel do not on any ordinary
approach to the phrase ‘a house’ constitute a building adapted for use as or
for the purposes of a dwelling. He accepts that the evidence is that in this
case people do stay in the premises in question for substantial periods of
time. This is apparent from the affidavit of Martin Joseph Walsh sworn and
filed on behalf of the respondents and to which is annexed a list of the
occupants at Tooley Hotel and Tooley House on January 13 1983. The list shows
that many have remained in the premises for years, many more for months, and
that continuous periods of residence are indicated by the schedule in question.
Mr Barnes also
submits that there are in other statutes provisions which deal specifically
with common lodging houses and he cites in particular section 238 of the Public
Health Act 1936. That section provides for the registration of common lodging
houses with the local authority. Section 343 of that Act is the definition
section and in that section, however, ‘house’ is defined as meaning ‘a
dwelling-house, whether a private dwelling-house or not’.
In the case of
Re Ross and Leicester Corporation (1932) 30 LGR 382 the point was taken
directly as to whether a dwelling-house could include a common lodging house.
The case involved consideration of section 1(1) of the Housing Act 1930. It
concerned the power of the corporation to declare an area as a clearance area
and to include in the compulsory purchase order dwelling-houses which by reason
of disrepair or sanitary defects were unfit for human habitation. The area in
question included certain premises which were owned by the applicant and
consisted of ground-floor buildings separately let on weekly terms, and a
common room for the common lodging house which was conducted on the first
floor. The owner objected to the inclusion of his premises in the clearance
area on the ground, inter alia, that the property was a registered
lodging house and not an ordinary dwelling-house.
In the course
of his judgment at p 384 Swift J, after paying tribute to the considerable
research which had been done by counsel for the applicant, said:
But I cannot
accede to the argument which he has advanced before me. Mr Ross’s case is based
entirely upon the wording of section 1, and he contends that ‘dwelling-houses
in that area [which] are by reason of disrepair or sanitary defects unfit for
human habitation’ does not include a common lodging-house, but that common
lodging-houses come under the category of ‘other buildings’ mentioned in this
subsection . . . Mr Ling-Mallison says that a common lodging-house is not a
dwelling-house. I cannot follow that. It seems to me that it must be. I find it
so difficult to express, because I find it so impossible to conceive a way of
saying that a common lodging-house is not a dwelling-house. I adopt the
language used by Channell J in the case of London County Council v Rowton
Houses Ltd (1897) 62 JP 68, to which Mr Solicitor-General called my
attention. He says, at p 73: ‘The great majority of the buildings mentioned
here, churches and chapels, and ballrooms, and so on, would not be
dwelling-houses, but there are a few and particularly hotels, lodging-houses,
and so on, that would be. Those I think might be dwelling-houses
notwithstanding that they are also public buildings.’ I am bound to say that in my view a
dwelling-house does not cease to be a dwelling-house because the people who
dwell in it are of such a character and live under such conditions as to make
it a common lodging-house, and taking the view of the statute that I do, I
think the Minister was quite within his powers in confirming the order, and
this appeal is dismissed.
It is
interesting to observe that in the case of Silbers v Southwark London
Borough Council (1978) 76 LGR 421, which was a case concerning the making
of a control order under section 73(1) of the Housing Act 1964 and involving a
common lodging house accommodating some 70-75 women some of whom were mentally
deficient or alcoholic, the question of whether it was a house within the
meaning of the section was not raised although the case was contested and both
parties were represented. It is right, however, to note that the point before
the Court of Appeal was a different one from that in this case and concerned
the meaning of the word ‘occupied’ in the phrase ‘occupied by persons who do
not form a single household’.
Despite Mr
Barnes’ well-presented argument, I find no hesitation in adopting the judgment
of Swift J in Re Ross and Leicester Corporation, which in turn adopted
the language used by Channell J in the case of London County Council v Rowton
Houses Ltd. Like Swift J I find it impossible to conceive of a way of
saying that a common lodging house is not a dwelling-house. Accordingly, I am
satisfied that the premises in question in this application can constitute a
house within the meaning of section 73(1) of the Act and that the respondent
authority was justified in so regarding them.
Grounds 2 and
3 of the applicants’ notice of motion relate to the purpose for which it is
alleged the control order was made. Mr Barnes submits that the last three lines
of section 73(1): ‘. . . if it appears to the local authority that the living
conditions in the house are such that it is necessary to make the control order
in order to protect the safety, welfare or health of persons living in the
house’ constitute the condition precedent to the making of a control order and
also restrict the consideration of the local authority to that particular
matter. He submits that the authority must consider only whether living
conditions in the house are such as to make it necessary for them to make a
control order. Not only is it irrelevant but it is improper, he submits, for
the authority to decide to make a control order because they wish to keep the
premises open. Having regard to the minutes and other records of the relevant
committees of the council, and to the reports of their officers, he submits
that in this instance the council decided to make the control order for the
predominant purpose of preventing the closure of the premises. He does not
dispute that the facts relating to the conditions in the premises as known to
the council were such as would entitle them to conclude that it was necessary
to make the control order ‘in order to protect the safety, welfare or health of
persons living in the house’, but he says that they did not in fact make the
order for that purpose. Having regard to the history of the council’s dealings
with these premises, and in particular to the earlier compulsory purchase
order, it is plain that they could and should have approached the problem by
proceeding to purchase the premises rather than by making a control order.
Inviting the
court’s attention to de Smith’s authoritative textbook on Judicial Review of
Administrative Action 4th ed at p 329, Mr Barnes refers to that part of the
text which deals with the question of what was the true purpose for which the
power was exercised and what was the dominant purpose for which the power was
exercised. He submits that, if in the words of the author, ‘the actor pursues
two or more purposes where only one is expressly or impliedly permitted, the
legality of the act is determined by reference to the dominant purpose’. He
submits that in this case the purpose of seeking to prevent the closure of the
premises was the dominant purpose, and that it was unlawful because the Act
restricts the power to make a control order to the case where it appears to the
local authority that the physical living conditions in the house are such that
it is necessary to make the control order in order to protect the safety,
welfare or health of persons living in the house.
Further and/or
alternatively, he submits that in having regard to their desire and intention
to keep the house open the authority were having regard to an irrelevant
consideration, and accordingly on the well-known Wednesbury principle
the order was ultra vires.
For the
respondents it was submitted that once the conditions of section 73(1) are
satisfied, the local authority has a discretion on how to act, subject of
course to exercising that discretion reasonably. Mr Turner-Samuels submitted
that it is reasonable for a local authority to consider whether the premises
will still be available once they are satisfied that the conditions precedent
for making a control order as defined in section 73 exist.
In this case,
from 1978 onwards, it is clear that the local authority had been increasingly
concerned with the living conditions in these premises. Further, on various
occasions to which I have referred, they had sought to take action of one kind
or another but without achieving any result. Finally, having served notices
under the Housing Acts requiring certain works to be done, they had been met by
a blank refusal to undertake or to permit the undertaking of any of the works
necessary to remedy the situation.
According to
the second affidavit of David Francis Smedley (para 7(h)), Mr Lewis Aronson,
the applicants’ managing director, telephoned him at 10.30 am on October 6 1982
informing him that the applicants intended to close the hostel immediately
unless the respondents gave an undertaking that no works would be carried out
in default by the respondent council. It was after that ultimatum that the
committee met urgently and decided to make the order. Mr Turner-Samuels submits
that that was a wholly reasonable course to adopt having regard to the blank
refusal by the applicants to allow or to undertake any works necessary to
ameliorate the appalling conditions in this house.
The court was
referred to the Ministry of Housing and Local Government Circular No 51/64
which was issued by the Secretary of State when the Act came into force. In
para 4 of the circular the minister dealt with what is called ‘the new control
order power’. Para 4 reads as follows:
The powers to
take multi-occupied houses into their stewardship for a period by making
control orders (sections 73 to 90) provide local authorities with a drastic new
means of dealing with the worst cases of squalor. The new powers are not
intended to replace the powers available to authorities under the Housing and
Public Health Acts — especially Part II of the Housing Act 1961 — to require
owners to remedy bad conditions or to provide amenities. These will continue to
provide the principal means of tackling squalor. Because the new powers are so
drastic, involving taking the management of property out of the owner’s hands,
the minister wishes to call particular attention to what is said in paragraph
12 of appendix 1 about the need to act only on hard evidence. So strong a
power, if misused, can readily come into discredit. But where a local authority
find conditions which, in their view, can only satisfactorily be dealt with by
taking over the property, he trusts that they will act promptly. If the new
powers are used judiciously and responsibly the beneficial results will extend
far beyond the property in respect of which they are exercised.
5. The
procedure for making a control order is designedly peremptory. It has been said
that, in some of the worst cases of squalor, the taking of action under Part II
of the Act of 1961 has been inhibited by the residents’ fear that they will
lose the benefit of the inadequate shelter they have if they invoke action by
the local authority. Accordingly sections 73 to 90 have been so designed that a
control order may be made without prior notice, with the service of notice and
any appeal against the order coming afterwards. Authorities should so arrange
their procedures that they are able to make control orders without prior notice
or warning where they consider this necessary.
It is not
disputed that the conditions in these premises were such as to justify the
making of a control order. It is further not disputed that the applicants
refused to carry out or permit to be carried out any works which could improve or
ameliorate the apparently dreadful conditions which existed. Moreover, it is
not disputed that they backed up that refusal by a threat to close the property
with the inevitable result that the residents would be turned out on to the
street. In my judgment the authority was bound to have regard to all the facts
including the threat to cause the residents to be turned out into the street
and rendered homeless. Having regard to the fact that the conditions of the
section were satisfied, it had a discretion on how to proceed to protect the
health and safety of the residents. In my judgment it cannot be said that it
acted unreasonably or unlawfully in making the control order. There is no
suggestion of bad faith in this case. The minutes of the various meetings and
the reports of the officers to the relevant committees all show that,
throughout, the overriding concern of the authority had been to safeguard the
health, safety and welfare of the persons living in these premises. It seems to
me in these circumstances that it was eminently reasonable for the authority to
conclude that it could not protect the health, welfare and safety of the
residents unless it took the step of making a control order. I find that its
action was not therefore ultra vires on either of the grounds formulated
as grounds 2 and 3. It seems to me that the order was in fact made in
accordance with both the letter and the spirit of the section.
Ground 4 of
the amended notice of motion is: ‘The borough failed to consider, and failed to
have regard to, any realistic estimate of the cost of works considered by them
to be necessary in furtherance of the said Order.’
Mr Barnes
submits that at the time of the making of the control order the relevant
committee had before them only the material which was before them on July 14
1982 in the report of the director of housing (head of environmental health
service). Para 3.2 of this report dealt with a control order and explained its
purpose and effect. The paragraph included what is entitled ‘An indication of
the financial implications of making and implementing a Control Order’. This
stated that the running costs and the costs of works carried out under a
control order scheme would be recharged to the owner. It went on to state that
the actual cost to the council on the figures which were included in that
paragraph would therefore only comprise the compensation paid to the owner,
that is £2,660. The paragraph concluded with a statement that the financial
implications of carrying out the scheme would depend upon the extent of the
works carried out. A scheme of works under a control order would be much more
limited and would legally have to be confined to the action which the council
could have taken against the owners under Housing Act powers. An estimate of
the cost of a scheme would be £76,000.
When the
scheme came to be prepared under section 79 of the Housing Act 1964, after the
making of the control order, the capital cost was in fact assessed at a figure
of £360,000. Mr Barnes submits that it would be a proper and material factor to
be taken into account before the making of a control order that a realistic
estimate of costs should have been made. He submits that when these two sets of
figures are compared it is clear that the £76,000 figure given to the committee
in July 1982 was unrealistic. His submission is, if it appears that a realistic
estimate was not taken into account before making the control order, then the
control order itself is ultra vires the power of the authority and
should be quashed.
In support of
this submission he cited a decision of the Court of Appeal in the case of Prest
v Secretary of State for Wales and the Welsh Water Authority which the
Court of Appeal decided on September 24 1982.*
The transcript of the judgments of the court has been placed before this
court. Lord Denning MR gave the leading judgment. The case concerned the making
of a compulsory purchase order and a submission that it was defective because
the cost of the acquisition had not been properly taken into account. The
position, however, would appear to be quite different from that obtaining in
the present case. The issue which was before the compulsory purchase inquiry
depended, so the court ultimately found, on the question of price. This was a
vital factor in the decision. The defect in the minister’s decision was his
failure to take into account the cost of acquiring the site proposed by the
water authority (the CPO site) as against the cost of acquiring an alternative
site offered by the applicant. The Master of the Rolls held that that was a
material defect which required the quashing of the compulsory purchase order.
*Editor’s
note. This case is reported at (1982) 266 EG 527, [1983] 1 EGLR 17.
In the case of
a control order, section 79 of the Housing Act specifically provides for the
preparation of a scheme not later than eight weeks after the date upon
which the control order comes into force. Furthermore, by section 83 of the
Act, a right of appeal against the scheme is provided for. I do not consider
that the Act envisages the making of an estimate of costs before making the
control order. It is plainly designed as an emergency measure and provision is
specifically made for the preparation of a scheme which shall give particulars
of all works which will be required to be carried out and the appropriate
estimates for this after the making of the order. Furthermore, the right
of appeal provided for by section 83 is designed to protect the interests of
any person having — in the words of the section — ‘an estate or interest in the
house’. It would in point of fact be impossible for an authority to
prepare realistic estimates before being able to carry out a detailed
inspection of the premises. No doubt this is one of the reasons why section 79
makes the provision which it does make. I do not therefore consider that this
ground is a valid ground upon which these applicants can contend that the order
was defective or ultra vires the authority, even if no preliminary
estimate of costs was made. In this case it may well be that the initial
estimate was very provisional indeed and it was not borne out by the subsequent
valuation of the work to be done. There is, however, no evidence of behaviour
on the part of the authority which can be categorised as being ‘unreasonable’.
I have
considered each of the grounds upon which this application is made and I have
found that none of them is established. Accordingly, the application must be
dismissed.
However, I
must refer to one further matter which was canvassed during the hearing of the
application. The respondents submitted that this was not a case for judicial
review at all having regard to the provision for appeals to the county court
contained in sections 82 and 83 of the Act. Mr Turner-Samuels cited the case of
R v London Borough of Hammersmith, ex parte Minford Properties Ltd
decided by the Divisional Court presided over by Lord Widgery CJ on May 25
1978. That was a case in which an applicant moved for certiorari to quash a
control order under section 73 of the Housing Act 1964, made by the London
Borough of Hammersmith. After setting out the points raised and the matters
which were in issue in the particular case, Lord Widgery CJ said at p 4 of the
transcript at D:
The real point
to my mind comes a little later on when one goes to section 82 of the Act,
there to discover a right of appeal against a control order. That section
provides: ‘At any time after the making of a control order, but not later than
the expiration of a period of six weeks from the date on which a copy of the
relevant scheme is served in accordance with section 79(1) of this Act, any
person having an estate or interest in the house, or, subject to the following
provisions of this section, any other person, may appeal to the county court
against the control order.’
That right of
appeal to the county court is a comprehensive right. The circumstances in which
it can be exercised are set out in subsection (3) of section 82, and they
include these extremely relevant provisions in subsection (3)(b), ‘that it was
not necessary to make the control order in order to protect the safety, welfare
or health of persons living in the house’.
Lord Widgery
continued by saying that subparagraph (b) gives a full, unrestricted right to
argue that the control order was not necessary in all the circumstances. He
said:
This is not
one of those cases where certiorari covers a wider range of relief than any
alternative procedure. Here, as far as I can see, the jurisdiction of the
county court to entertain an appeal of this kind is as wide in its scope as any
sort of procedure which one can devise under the prerogative orders.
I think the
right course in this case is to fall back on the well-established principle
that the prerogative orders will not generally be allowed to issue where there
is an equally effective remedy elsewhere, provided, in my judgment, there is an
equally effective remedy, which has similar rights of appeal attached to it as
attach to a decision of this court.
It is relevant
to note that the two grounds upon which relief was sought in that case were,
firstly, that at the date of the order the house was not a house in multiple
occupation as it was only occupied by one lawful person. Secondly, the council
acted in excess of its jurisdiction in making the control order on the day in
question because on that same day a judgment for possession was obtained in the
West London County Court by the landlords, who therefore succeeded in obtaining
possession of the premises from the tenant who was then occupying the house
with other persons said to be trespassers.
Section 82(3)
of the Housing Act 1964 sets out the grounds of appeal as follows:
The grounds
of the appeal may be all or any of the following, that is — (a) that . . . the
state or condition of the house was not such as to call for the taking of any
such action as may be taken under any of those sections;
a reference to
the sections of the Act of 1961 mentioned in section 73(1)(a)
(b) that it was not necessary to make the control
order in order to protect the safety, welfare or health of persons living in
the house; (c) where part of the house was occupied by the dispossessed
proprietor when the control order came into force, that it was practicable and
reasonable for the local authority to exercise their powers under section 76 of
this Act so as to exclude from the provisions of the control order a part of
the house (or a greater part of the house than has been excluded); (d) that the
control order is invalid on the ground that any requirement of this Act has not
been complied with or on the ground of some informality, defect or error in or
in connection with the control order.
Subsection (5)
provides:
A control
order shall, subject to the right of appeal conferred by this section, be final
and conclusive as to any matter which could have been raised on any such
appeal.
The
respondents argue that since the applicants have in fact given notice of appeal
to the county court it would be the proper forum for their objections to be
heard. The applicants submitted that this case and in particular grounds 2 and
3 involve consideration of the power of the local authority to make the order.
Mr Barnes submits that if in fact there is no power to make it then there can
be no appeal from any order which it purports to make. It is a nullity. In
support he refers to Professor Wade’s leading textbook on Administrative Law
5th ed at p 593. In a passage on that page the learned author questions whether
it is proper for a court to withhold discretionary remedies where the most
convenient step is to appeal. Mr Barnes’ main submission, however, is that in
point of fact the grounds set out in subsection (3) of section 82 would not
cover the two grounds, that is to say grounds 2 and 3 of his application. The
question as to whether it is proper for this court to consider an application
for judicial review where a specific right of appeal to the county court is
provided has given me considerable concern. However, I have come to the
conclusion that in this case the applicants’ submission is correct, since their
challenge is to the power of the authority to make the order and is not founded
on any technical or procedural ground. Grounds 2 and 3, as developed in the
applicants’ submissions, go to the root of the authority’s power to make the
order. Accordingly, it seems to me to be a proper case to come before this
court upon an application for judicial review. To some extent the same
considerations apply to ground 4 as it has been developed in argument. However,
I should say that in relation to the applicants’ ground 1, which is that the
premises were not a ‘house’ within the meaning of the section, I consider that
that ground would be appropriate for consideration by the county court. If it
had stood alone as the sole ground of this application, I should have declined
to entertain the application. However, since I have heard this application as a
whole and since both parties have argued the point before this court, I have felt
it right to deal with it.
With further
reference to ground 4, although the challenge was made on the basis of the
authority’s power to make the order, it is nevertheless a relevant
consideration, as I have already stated, that section 83 of the Act provides a
specific right of appeal against the scheme. Finally, while dealing with this
branch of the submissions made to the court it is convenient that I should say
that the words ‘final and conclusive’ in section 82(5) do not of themselves
preclude judicial review: see R v Medical Appeal Tribunal, ex parte
Gilmore [1957] 1 QB 574. At p 585 Denning LJ (as he then was) said: ‘In my
opinion, therefore, notwithstanding the fact that the statute says that the
decision of the medical appeal tribunal is to be final, it is open to this
court to issue a certiorari to quash it for error of law on the face of the
record.’
For the
reasons, however, which I have given, this application is dismissed.
The
application was dismissed with costs.
