The Court of Appeal held that the other party was entitled to insist on ‘repair’ to the existing underfloor heating system even though that work would be comparatively much more expensive and would necessarily incorporate some improvement.

The Court of Appeal rejected the tenant’s appeal, declining to interfere with the judge’s findings of fact.

The Court of Appeal held that whether or not remedial works were within the repairing covenant was a matter of degree. The judge had been entitled to decide that the installation of a new damp-proof course would not involve a change in the nature and character of the flats. The landlord’s obligation was not ‘repetitively to carry out futile work instead of doing the job properly once and for all’ (per Ackner LJ)

The Court of Appeal held that in every case it was a matter of fact and degree, having regard to the age and design of the premises, as to whether works fell within a particular covenant. In this case the insertion of a damp-proof course would radically alter the character of the premises. It was an improvement, not a repair, and so not part of the tenant’s repairing obligations.

The Court of Appeal held that the modern authorities on the proper approach to the construction of contracts require a common sense approach having regard to the background factual matrix in which the contract was produced and disregarding the ‘old intellectual baggage of “legal” interpretation’. Applying this test, the true construction of the repairing covenants was that the tenant was responsible for only internal repairs and the landlord was responsible for repairing the structure and exterior. The bracketed words in the second repairing obligation were to be treated as having no effect.

The Court of Appeal held that these works were not repairs but improvements. Accordingly, they had not been undertaken under the repairing covenant imposed by Landlord and Tenant Act 1985 s11 and the landlord was not liable for the cost of redecoration after the works. As the works were improvements, the tenants should have negotiated compensation for redecoration as a condition of granting the landlord permission to do the improvement works on their properties. The court reviewed authorities on the distinction between works of repair and works of improvement. After considering precedents up to and including Stent v Monmouth DC (Stent v Monmouth DC), Mustill LJ stated that:

The Court of Appeal dismissed the tenant’s appeal against a county court finding in favour of the landlord. Slade LJ said:

The Court of Appeal held that this would lead to the absurd result that each party would have a remedy against the other for failure to do works. The practical result of this would be to stultify both obligations. Leases have to be construed so as to avoid overlapping covenants if possible.

The Court of Appeal held that the first question to be addressed was whether the property was in disrepair. If, as in this case, the defect had been present since both the date of construction and the date of letting, there was no disrepair – the building was in its original state. The doctrine in Proudfoot v Hart (1890) 25 QBD 42 (that a covenant to ‘keep in repair’ also means ‘put in repair’) was confined to cases in which the property was not, when let, in the condition in which it was originally constructed. As there was no evidence in the present case of damage to the property itself (eg, corrupted wall plaster, rotten woodwork, etc), disrepair was not established and no work under the covenant to keep in repair was required. The Court of Appeal went on to consider the test which would be applied if disrepair were later proved. It upheld the line of authorities deriving from Ravenseft Properties Ltd v Davstone (Holdings) Ltd (Ravenseft Properties Ltd v Davstone (Holdings) Ltd) and adopted the proposition that whether the works required to remedy the disrepair were works of repair, renewal or improvement was a matter of degree.

The Court of Appeal held that if the only defect had been that the door did not perform its primary function of keeping out rain, but was otherwise undamaged, there would have been no defect which breached the repairing covenant. The property would have been in the same state as it was when it was built. However, because the door itself became damaged it needed to be replaced. Stocker LJ said:

The Court of Appeal rejected this contention. The landlord had no obligation to go beyond repairing the subject-matter of the demise, namely a house with no damp-proof course. The plaintiff was seeking something completely different, namely a house with a damp-proof course. Furthermore, the court could see no reason why a local authority owed a higher repairing obligation than any other landlord.

The claimant’s second tier appeal was also dismissed. If the meaning of words in a lease is not clear, the approach in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 should be adopted to identify the meaning which the document would convey to a reasonable person with the background knowledge reasonably available to the parties. In this case, given the passage of time since the grant of the lease, it was necessary to identify the nature of the restriction within the four corners of the lease, including the covenant for quiet enjoyment. It was clear from the terms of the lease that the relevant clause gave a right of entry only in the event of a failure to repair or where works of repair or works akin to repair were required to be carried out. It would require equally clear words to extend the meaning of the clause to include works of improvement.. Those clear words were not present in the lease.

Forbes J held that there was no doctrine that want of repair due to an inherent defect in the demised premises could not fall within the ambit of a covenant to repair. It is a question of degree whether works are repairs or works which so change the character of a building. The insertion of expansion joints would not amount to a changing of the character of the building. The joints formed a trivial part of the building as a whole and the cost of inserting them was trivial when compared with the value of the building. The works came within the repairing covenant and the landlord was entitled to recover the cost of carrying out the works from the tenant.

The Supreme Court allowed an appeal. The pathway could not, as a matter of ordinary language, be said to form part of the exterior of the building: it was wholly outside of the building. The fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building. It followed that the fact that the pathway was in disrepair did not engage section 11(1A). Had the pathway formed part of the building, the right retained by Mr Kumarasamy to use it under his lease was an interest within the meaning of section 11(1A). Even then Mr Kumarasamy would not have been liable under section 11(1A) because he had disposed of his interest to use the access road when he granted Mr Edwards a tenancy of the flat. It followed that Mr Edwards was in possession of the right of way and as such was required to give Mr Kumarasamy notice of any defect.

The Court of Appeal held that for the purposes of Housing Act 1961 s32 (now Landlord and Tenant Act 1985 s11), the phrase ‘structure and exterior’ applied to anything which, in the ordinary use of words, would be considered as part of the structure and exterior, not merely that which is included in the demise. It included

By a majority, the Court of Appeal held that the impermeable render had become part of the ‘structure’ of the building and repair to it was within the express term. The ‘false wall’ was not within the term as it had been affixed to the structural wall rather than become part of it.

The Court of Appeal held that the yard did not form part of the essential means of access to the property and so was not part of the structure or exterior of the dwelling-house for the purposes of Housing Act 1961 s32 (now Landlord and Tenant Act 1985 s11).

The Court of Appeal allowed her appeal. Wall and ceiling plaster in the flat formed part of the ‘structure’. Mr Gill was responsible for its repair. HHJ Karsten should have awarded Ms Grand full compensation for the plasterwork damage. In this connection Irvine’s Estate v Moran (1992) 24 HLR 1; [1991] 1 EGLR 261 was wrongly decided.

The Court of Appeal held that the judge’s construction of the lease had been correct. A landlord’s obligation under a lease to repair the main structure of a property included an obligation to repair floor joists in a tenant’s property as the joists played a significant part in keeping the structure sound. The main structure was not limited to items in the ownership and control of the landlord or items which served more than one unit. Such qualification of the landlord’s obligation was neither obvious nor necessary.

The Court of Appeal found that there was no disrepair to the structure or exterior and that accordingly the condensation-related dampness was not a breach of the section 32 covenant. Dillon LJ stated:

The Court of Appeal upheld HHJ Coles QC’s finding that plaster when saturated is in disrepair and dismissed the de minimis argument. The plaster was in such poor condition that it required complete renewal. An award of £5,000 general damages (see December 1990 Legal Action 17) was not disturbed.

The Court of Appeal dismissed the appeal. The mere existence of damp was not disrepair. However, an inherent defect could give rise to liability for breach of the repairing obligation if it damaged the structure or exterior. It followed that where there was damage or deterioration to the plaster, the landlord would be liable to remedy that damage and that this might involve the installation of a damp-proof course to prevent further damage: Elmcroft Developments Ltd v Tankersley-Sawyer (Elmcroft Developments Ltd v Tankersley-Sawyer).

The claimants’ appeal was dismissed. The claimant had failed to discharge the burden of proof.

Patten J, granting an order for summary judgment that the defendant carry out works to repair the terrace and damages, held that the ‘main structure’ of the building was to be construed as including not only its bare concrete shell but also whatever additional surfaces were created by the landlord in order to make that shell a complete and effective structure for the purpose of maintaining the physical integrity of the flats within it.

Rimer J, on appeal, held that the reference in the leases to the ‘main structure’ included the whole of the roof terrace, except for its tiled surface area, which was demised to the lessees who used it. The landlord was accordingly responsible for its repair.

Southwark appealed successfully. Lightman J held that it was established by the Court of Appeal in Quick v Taff Ely BC (Quick v Taff-Ely BC) and succeeding cases that ‘disrepair’ was established for the purposes of section 11 if, and only if, there was physical damage to the structure or exterior of the premises which did not arise by reason of the tenant’s default. A landlord was not liable under the covenant merely because there was very serious damp in the demised premises. In a case such as the present, the tenant must establish either that the damp arose from a breach of the covenant (ie, physical damage to the structure or exterior of the premises) or that the damp had itself caused damage to the structure or exterior and that this damage in turn had caused the damp. There was no particularised allegation in the particulars of claim of any physical damage to the structure or exterior of the property or that such damage caused the damp for which damages were sought. All that was pleaded and particularised was the damp itself. The judge was wrong to decide the case on the basis that the existence of the damp constituted a breach of covenant and cause of action in itself for which damages should be and were awarded. The appeal was allowed and the action dismissed.

The Court of Appeal stated that there is a distinction between the duty to keep in repair and the duty to keep in proper working order. The court was concerned only with the latter. An installation could not be said to be in proper working order if, by reason of a defect in construction or design, it was incapable of working properly: see Liverpool CC v Irwin (Liverpool CC v Irwin). The characteristics of the supply of water, gas and electricity were all capable of varying, whether by accident or design. An obligation requiring the landlord to provide installations, which would function regardless of the vagaries of supply, would be manifestly unreasonable. So far as installations for the supply of water, gas and electricity were concerned, an installation would be in proper working order if it was able to function under those conditions of supply that it was reasonable to anticipate would prevail. Whether supply variations should be reasonably anticipated and provided for would depend on the particular facts. If the change was likely to be short-lived, the cost of modification might be disproportionate. Where the changed circumstances were likely to persist for a lengthy period it might seem wholly unreasonable for the landlord to leave his tenants deprived of a satisfactory supply of water for want of relatively modest expenditure on modifications.

Edwards-Stuart J gave useful guidance on the interpretation of the term ‘proper working order’ found in Landlord and Tenant Act 1985 s11 and many express repairing obligations. He said:

The council appealed unsuccessfully. The contract was one between a local authority and a tenant in circumstances in which the latter would not be expected to take legal advice. Against that background, it was right as far as possible to construe the phrase ‘good condition’ so as to give it the meaning that the ordinary person in the street would accept as normal. The phrase was intended to mark a separate concept and to make a significant addition to what was conveyed by the word ‘repair’. It was a more extensive obligation than that implied by Housing Act 1985 s11. The judge was right to conclude that by failing to provide thermal insulation or dry lining for external walls, Greenwich had allowed excessive condensation and mould to continue and so had failed to maintain the flat in good condition.

The House of Lords found that, since the stairs, lifts and rubbish chutes were necessary for tenants occupying the block, there was an implied obligation on the landlord’s part to take reasonable care to maintain the common parts in a state of reasonable repair and efficiency.

In Baxter v Camden LBC the plaintiff was disturbed by the sounds of ordinary domestic noise coming from the tenanted flat above hers in a converted house. She brought an action in contract (breach of covenant for quiet enjoyment) and tort (nuisance) against the defendant council which was both her landlord and the landlord of the upstairs tenant. Neither tenancy agreement contained a warranty on the part of the landlord that the flats had sound insulation or were in any other way fit to live in.

The tenants’ appeals in both cases to the House of Lords were dismissed. In relation to covenants, it was held that:

The lessee’s appeal was dismissed by the Court of Appeal. The contention that there was an implied term was untenable. It was impossible to presume an intention that the lessor should maintain the structure of the block. A covenant to permit the lessor to inspect did not affect this. Barrett v Lounova (Barrett v Lounova (1982) Ltd) was decided on its own special facts.

On the landlord’s appeal, that decision was upheld by the Court of Appeal. Kerr LJ held that an obligation on the landlord to repair the exterior could be implied as it gave ‘business efficacy’ to the tenancy. The award of £1,250 damages for breach of the implied term and an injunction requiring repairs were upheld.

The Court of Appeal held that, in the absence of a ‘correlative obligation’ (requiring the tenant to undertake internal repairs), no obligation would be implied requiring the landlord to repair the structure or exterior.

The landlord’s appeal was dismissed. The Court of Appeal confirmed that although the courts will not usually imply a condition requiring repair which does not appear in the lease, the lessees were entitled to recover damages for deceit and breach of express covenants in these circumstances.

The Court of Appeal held that, although the rear and side paths were not part of the ‘exterior’ of the dwelling and Landlord and Tenant Act 1985 s11 did not apply (see Covenants: structure and exterior), there was a necessary implied contractual requirement to maintain the path, since the house could not be enjoyed without use of the rear access (which was needed for the removal of rubbish, the delivery of coal, etc). The plaintiff was entitled to an injunction and damages.

The Court of Appeal dismissed the claimant’s appeal.

The House of Lords held that no liability under Housing Act 1961 s32 (now Landlord and Tenant Act 1985 s11) arose until the landlord had information about the existence of a defect in the premises which would put a reasonable person on enquiry about whether works of repair were needed. The landlord was only liable to repair the ceiling and not liable for damage resulting from the collapse.

The Court of Appeal held that: (a) notice of disrepair need not specify the precise nature or degree of want of repair; (b) the letter from the solicitors would usually be sufficient to put the landlord under an obligation to attend and inspect and thereafter carry out the repair; but (c) the letter could be construed as saying that the landlord was ‘being told that he would be told what was necessary in due course and he could then either do it or have the cost deducted from rent’, which was not of itself sufficient notice. The judge had considered all the matters relevant to the issue of reasonableness and there was no basis to interfere with his exercise of discretion in making the possession order.

The Court of Appeal dismissed the appeal. After an extensive review of the authorities, Nourse LJ stated:

It was suggested by Nourse LJ that a further exception to the general rule that a landlord is liable immediately a defect occurs is where the cause of the defect is an occurrence wholly outside the landlord’s control, eg, where a roof retained in control of the landlord is damaged by a tree standing on a neighbouring property.

Having heard further submissions on this point, the Court of Appeal, in this addendum judgment, upheld its reduction in the level of damages. It accepted that the defects were principally within the roof and therefore arguably within the general rule in British Telecommunications plc v Sun Life Assurance Society plc (British Telecommunications plc v Sun Life Assurance Society plc), namely that, in respect of disrepair in parts of the building within the landlord’s control, the landlord was in breach immediately a defect occurred. However, the court held that as it had been common ground before the trial judge that, for the purposes of assessing damages, the date of the notice of the defects should be taken as the starting point, it was illogical not to allow the landlord a reasonable time to respond. Carnwath LJ raised the possibility of a further amendment to the notice rule as he held that: ‘In a future case, it may have to be considered whether the “general rule” as laid down by BT requires some modification to take account of the practicalities of the modern relationship of residential lessors and lessees.’ It should be borne in mind that this was said in the context of long leases, where there is a reciprocal obligation on lessees to contribute to the costs of the works.

The Court of Appeal was satisfied that either of these fixed the landlord with knowledge. The environmental health officer was:

Following and applying Dinefwr BC v Jones (Dinefwr BC v Jones), the Court of Appeal held that the details contained in the valuer’s report constituted sufficient notice once served on the landlord’s agent. The landlord was, accordingly, liable in damages to the tenant for disrepair.

Slade LJ held that the onus of proving that a reasonable period had passed was on the tenant. On the evidence it had not been proved that a delay of seven days between notice and any permanent repair was unreasonable. Such evidence would have included: the difficulty or otherwise of obtaining the proper quality and size of door and frame, the council’s workload, the fact that the tenant was temporarily absent from the property and the fact that the temporary repair had been carried out. The claim was originally pleaded in the alternative as negligence but this was not pursued on appeal. Balcombe LJ expressly left open the question of any liability which might have arisen had the case been argued on the basis that the landlords owed a duty of care to make the premises secure pending the necessary repairs. No reference to the duty of care under the Defective Premises Act 1972 appears in the judgment.

The Court of Appeal held that the general rule that the landlord was liable immediately a defect occurred applied (British Telecommunications plc v Sun Life Assurance Society plc (British Telecommunications plc v Sun Life Assurance Society plc)). Severe weather was not so uncommon an occurrence in the UK that it cannot be forseen and suitable precautions taken. None of the exceptions to the rule in British Telecommunications applied.

The Court of Appeal, allowing the tenant’s appeal against the dismissal of his claim in the county court, held that the state of discolouration of the water and the tank’s age were sufficient to give the landlords actual knowledge of the need to repair. Information about the existence of such a defect, which would put a reasonable person on enquiry about whether works of repair are needed, is sufficient for the landlord’s repairing obligation to commence.

HHJ Cox held that, where an event giving rise to liability occurs entirely on land in the possession or control of the landlord, the landlord is liable, irrespective of notice. In this case there was no exception to the general rule identified in British Telecommunications plc v Sun Alliance Assurance Society plc (British Telecommunications plc v Sun Life Assurance Society plc). The plaintiff was entitled to the replacement cost of all items lost or damaged in the flood, less a 25 per cent reduction for depreciation. General damages of £350 were awarded for loss of rent together with an additional £1,250 reflecting the undoubted trauma and distress experienced.

On appeal it was held that, even if a landlord is not at fault in carrying out its repairing obligations, it has an obligation to reinstate the property after completion of works to a reasonable standard, and that includes putting right damage done to decorations. The tenant’s appeal was allowed and judgment given for £220, the cost of decorating.

The Court of Appeal held that, in view of Housing Act 1961 s33(5) (now Landlord and Tenant Act 1985 s13(2)(a)), the commencement of the term was 1 November (compare Roberts v Church Commissioners for England [1972] 1 QB 278, CA). However, the landlord was estopped from denying that section 32 (now section 11) applied where the rent officer had registered a rent on the basis that the implied covenant applied, the rent registered had not been challenged or rectified and the landlord had been receiving the higher rent.

The Court of Appeal dismissed the appeal. The obligation could not be satisfied by delegation to contractors unless there was an adequate system for monitoring their performance. Inadequate supervision of the contractors was a failure to take reasonable steps for the purpose of the obligation in the tenancy. Furthermore, giving notice to tenants about their obligations did not necessarily exhaust the duty to take reasonable steps. There was no room for compromise on basic standards of cleanliness. The award of damages should stand.

The Court of Appeal allowed the tenant’s appeal and directed a retrial, holding that the county court judge had taken too restrictive a view of the matter in the light of Newham LBC v Patel (Newham LBC v Patel).

The Court of Appeal held that, in view of section 32(3) (now s11(3)) and the fact that the prospective life of the house was very short, there was no breach of section 32.

The Court of Appeal allowed the appeal. Under section 11(1A)(b)(i), a landlord’s liability for maintenance and repair extends only to an installation, or the defective portion of an installation, in that part of the building in which the landlord has an estate or interest. The implied covenant to repair does not extend to installations located in parts of a building in which the lessor does not have an estate or interest, even if the lessor has an estate or interest in other parts of the same building. In this case, the landlord had no estate or interest in any part of the building except for the top floor flat let to the defendant. The judge was entitled to assess the damages for the other admitted breaches by taking a global figure based on a notional reduction in rent. The appropriate sum for damages for the other breaches amounted to £5,000. Taking into account a small reduction to the damages awarded for the repainting claim, the overall damages were reduced to £9,050.

The Court of Appeal dismissed the appeal. A receiver’s duty is only to those with an equity in redemption, ie someone who has a right regain his property on the discharge of the mortgage debt. Mr Purewal, when he was bankrupt, did not possess the equity of redemption as the flat had vested in the trustee in bankruptcy. It followed that at the time of the leak, and the resulting damage, the receivers did not owe Mr Purewal a duty in equity.

The House of Lords dismissed the council’s appeal. Lord Cooke said that ‘the concern of the common law lies in working out the fair and just incidents of a neighbour’s duty rather than affixing a label [such as “nuisance” or “negligence”] and inferring the extent of the duty from it’. Where a tree owner was notified of root damage, he was entitled to a reasonable opportunity to abate the nuisance. The council had had both notice and opportunity but failed to prevent further damage and so was liable for the full cost of the subsequent remedial work.

The Court of Appeal dismissed the tenant’s appeal. Waite LJ held that:

The Court of Appeal allowed the council’s appeal. The court held that as the developer was liable to pay for the cost of the remedial works, it was not fair, just or reasonable to impose on the council a duty to carry out and pay for any part of the works. The council was under a duty to co-operate in a solution but that did not extend to obliging it to meet the whole costs of the relief works. The court gave guidance about the extent of the measured duty of care that one property owner might owe to a neighbour to control the escape of accumulated surface water from its land.

The Court of Appeal allowed his appeal. The infestation was a nuisance. The council’s failure to treat the service ducts and its continuing use of DDT, which was known to be ineffective, meant that it was also liable in negligence.

The Court of Appeal allowed an appeal. The unchallenged expert evidence demonstrated that the cupboard ought to have been inspected and sprayed and that the mites had entered the flat from the cupboard. It was reasonably foreseeable that the mites would have entered the flat and Wandsworth acted negligently by not treating the cupboard.

The House of Lords held that (a) in the absence of any contractual relationship, the contractor was not liable for any negligence committed by an independent subcontractor and (b) in any event, the cost of the repairs was irrecoverable as pure ‘economic loss’.

The Court of Appeal dismissed the appeal. There was no evidence that the properties had been negligently constructed having regard to the standards of that time. The tenant therefore had to establish that the landlord owed a duty of care as the landlord of an unfurnished letting, notwithstanding the decision in Cavalier v Pope [1906] AC 428, HL. The Court of Appeal rejected the argument that public sector landlords should owe such a duty by virtue of their other housing powers and responsibilities. The rule in Cavalier v Pope still binds the Court of Appeal (see Rimmer v Liverpool CC (Rimmer v Liverpool CC)). The Court of Appeal also held that, even if there were a duty of care, it would be unlikely to extend beyond the scope of a repairing covenant, as parliament had already circumscribed liability in that way (Defective Premises Act 1972 s4). Dillon LJ stated that:

The Court of Appeal held that, although landlords of unfurnished premises owe no duty of care to tenants with regards the condition of the premises when they are let, landlords who also designed and built premises owe a duty of care in their capacity as designer or builder to all persons who might reasonably be expected to be affected by faults in the design or construction of the premises. The council was liable.

The Court of Appeal allowed the council’s appeal. The judge was wrong to derive assistance from the decision in Stockley as there was no emergency or external threat which called for action by the council.

The Court of Appeal upheld a finding of negligence based on breach of the duty of care and awarded £250 general damages (in addition to a further £100 general damages for failure to repair a window under Housing Act 1961 s32 (now Landlord and Tenant Act 1985 s11)) and £75 special damages. The Court of Appeal held that landlords owed a duty of care to any tenant and that once they:

The Court of Appeal held that:

Mackay J held that the landlord was in breach of his duty of care to his tenant, in common-law negligence, to take such care as was reasonable so that people who he could contemplate using the path, namely, a floating population of tenants, including students and Mr Lips, were safe to do so. It was reasonable to expect such tenants to return to the house in a state of inebriation on occasion, and it was relevant to the standard of care that the landlord was a professional property-owner and had access to advice. The erection of a handrail was cheap and would have returned the house to its original condition. Damages were reduced by two-thirds for Mr Lips’s contributory negligence in being drunk at the time of the accident, and carrying a very heavy load which caused him to lose his balance.

The Court of Appeal allowed the claimant’s appeal. Parliament intended that there should be a fresh cause of action for breach of the duty to provide a dwelling fit for habitation when further work did not rectify the original defect as intended. The action was only in respect of that further work, but the further work was for the purpose of rectifying the original work carried out in breach of duty. The claimants’ action was in respect of the work carried out in 1995 and therefore the six-year limitation period in the proviso to s1(5) had not expired when the action was brought.

The Court of Appeal dismissed an appeal by Richard Money Associates: [2009] EWCA Civ 1146. It held that whether or not a dwelling is unfit will always depend on the facts of the particular case. In many cases, it will be highly relevant whether it is necessary for the occupants to vacate for a long period while remedial works are carried out. It was clear that when the judge referred to defects that render a property unfit for its purpose, he meant defects which render it unfit for habitation, as the obvious purpose of a dwelling is for it to be occupied and inhabited safely and without inconvenience. The judge was not obliged to consider each defect individually, but was entitled to ask whether or not the dwelling as a whole was unfit. He was also entitled to conclude that the costs of remedying all the defects was attributable to the defective foundations and was a foreseeable consequence of the breach of Defective Premises Act 1972 s1: he was not limited to awarding no more than the cost of rendering the property fit for habitation.

Edwards-Stuart J allowed the claim in part. The common parts did not form part of a dwelling. A dwelling, for the purposes of section 1 in this case, were the individual apartments together, possibly, with those parts of the building to which the occupiers of a particular apartment have in practice exclusive access for living, eg their balcony. However, the work to the structural and common parts was work done in connection with the provision of each of the apartments. It followed therefore that the work done to the common parts was caught by section 1. As there was no evidence before the court as to the condition of every apartment it was not possible to determine if all of the apartments were fit for human habitation. The court held, however, that for a dwelling to be fit for habitation it must on completion both be capable of occupation for a reasonable time without risk to the health or safety of the occupants and be capable of occupation for a reasonable time without undue inconvenience or discomfort to the occupants. For those apartments that were not fit for human habitation, as a general rule the level of damages for the resulting distress and inconvenience should be modest and subject to a maximum of £3,000 per annum.

The Court of Appeal held that the landlord was not in breach of duty. The council was to be judged according to the standards of the reasonably skilful window designer and installer at the date of installation. At the time of installation button locks and key locks were not negligent choices for window security. There was no breach in opting for one rather than the other. The design of the windows did not oblige the local authority to install a smoke alarm.

In the county court, Recorder Clayton QC found that: the glass panel in the door was not safety glass but ordinary annealed glass; it was not broken or in disrepair; the use of ordinary annealed glass in doors presented a safety hazard and that had been understood since at least 1963; the property had been constructed in accordance with the building regulations in existence at the time. He held that the landlord was not on actual notice of any disrepair to the front door and dismissed the claim under section 11 but held the landlord liable for breach of the statutory duty of care under section 4. The landlord appealed.

The Court of Appeal allowed the appeal. The issue was whether the state of the glass panel constituted a ‘relevant defect’ for the purposes of section 4(3). The glass panel was not in disrepair. The court rejected the claimant’s submission that it was nevertheless a relevant defect because it was dangerous and the obligation to maintain and to keep in good condition included an obligation to make the property safe. A duty to repair, maintain or keep in good condition did not equate to a duty to put in a safe condition. A property may offer many hazards, but s4 does not necessarily require a landlord to make safe a dangerous feature. Parliament, when enacting the Defective Premises Act 1972, chose to link the duty of care imposed by section 4(1) to the landlord’s failure to carry out an obligation ‘for the maintenance or repair’ of the premises rather than link the duty of care to a failure to remedy defects in any more general sense.

Nelson J dismissed the claim. A local authority could reasonably assume that the parents of a small baby, able to crawl, would take reasonable care to protect that baby from injury from unprotected pipes. To have the heating system on 24 hours amounted neither to negligence nor to a defect under the 1972 Act. Any excess of temperature could not have been prevented and did not cause the accident. Despite the identical case of Ryan v Camden LBC (1982) 8 HLR 75, the local authority had been reasonable to conclude that the risk of injury was so slight that it need not take the step of protecting the pipe work. The court noted that no British Standard Code of Practice required that such pipes should be protected.

The Court of Appeal rejected both claims. First, there was no want of ‘maintenance or repair’ which could trigger the duty under section 4 to prevent harm being caused by a ‘relevant defect’. Furthermore, even the express covenant in the tenancy agreement was only to repair the structure or exterior of the dwelling. The slab was simply resting against the rear wall. Even if s4 did apply, the duty under it would be triggered only if the council knew or ought to have known of the presence of the paving slab, and that could not be proved on the evidence. Second, on negligence, the Court of Appeal held itself bound by Cavalier v Pope [1906] AC 428, HL, in which the House of Lords had held landlords immune from liability to non-tenants coming on to the premises and being injured by defects. The Court of Appeal decided that this decision still represented the law and had not been overruled by subsequent decisions such as Donoghue v Stevenson [1932] AC 562, HL.

The Court of Appeal dismissed the appeal. The installation of a new staircase, without a handrail, did not mean that the property was in disrepair and therefore did not give the landlord the right to enter to repair it. That was the case irrespective of whether the previous staircase had a handrail. Once the new staircase was built ‘the clock started again’ and as it never had a handrail, there was no subsequent damage to, or deterioration in, the fabric of the staircase such as to give rise to an obligation to repair it.

The Court of Appeal held that the word ‘premises’ included the paved area. As the council had reserved a right to enter and repair, it was liable under Defective Premises Act 1972 s4.

The Court of Appeal dismissed the appeal. There had never been a handrail on the staircase at any relevant time. The fact that at some date in the past the staircase may have had an open void on its left hand side protected by a bannister was irrelevant. It followed that the absence of a handrail did not cause the staircase to be in disrepair. To place the landlord under an obligation to fit a handrail in these circumstances would amount to placing him under an obligation to improve the premises or make them safe which was beyond the scope of Defective Premises Act 1972 s4.

The High Court held that Hillingdon were liable under Defective Premises Act 1974 s4. The banisters formed part of the structure of the property. The removal and the failure to replace the bannisters by Hillingdon amounted to a relevant defect. It was irrelevant that the tenant had removed the banisters because Hillingdon were obliged to repair the structure even in circumstances where the damage to the structure had been caused by the tenant. Hillingdon were taken to have knowledge of the defect because the tenancy agreement provided an express right of access to carry out repairs.

The Court of Appeal held that this led to the proper inference of an implied right to enter for the purpose of repair to remedy any defects which might cause injury to lawful visitors or to the tenant himself. Accordingly, the council owed a duty of care in respect of the whole premises. As it had known of the defective step and had not repaired it, it was in breach of duty.

The Court of Appeal described the findings as ‘more stringent than some judges would have made’, but refused the council leave to appeal.

The Court of Appeal held that the judge erred in equating the task of the claimant as tenant in establishing a breach of duty under section 4 with the need under section 11 to demonstrate notice (actual or constructive) of the actual defect giving rise to injury. Section 4(3), when defining a relevant defect by reference to an act or omission by the landlord which constituted or would, if he had notice of the defect, have constituted a failure by him to carry out his obligation, showed that the duty under section 4 was not to be confined in the same way as the contractual obligation was under O’Brien v Robinson (O’Brien v Robinson). A claimant under section 4 merely had to show a failure on the part of the landlord to take such care as was reasonable in the circumstances to see that the claimant was reasonably safe from personal injury. That duty was owed if the landlord ‘ought in all the circumstances’ to have known of the relevant defect. Accordingly the test was whether the landlord by his failure to service the gas fire regularly or at all or otherwise to take steps to check or make appropriate enquiries of the tenant as to the state of the gas fire, failed in his duty to take such care as was reasonable to see that the claimant was reasonably safe from injury. On that test and the judge’s findings of fact, the landlord was in breach of duty under section 4. The judge’s finding of 80 per cent contributory negligence because the claimant knew of the defects in the fire would not be disturbed.

Wood J held that, in failing to make proper arrangements for inspection, the council had failed to take reasonable care to ensure that the plaintiff was reasonably safe from personal injury. Damages were awarded.

Jay J dismissed an appeal. Section 4(4) does not impose an additional liability on landlords to whom section 4(1) does not apply. Rather, the purpose of section 4(4) is not to create a strict liability but to extend the application of s.4(1) to relevant defects which would otherwise beyond its scope, eg where the landlord is not un der an obligation to carry out a repair. The obligation under section 4(1) requires the landlord to exercise reasonable care in all the circumstances. It does not apply to circumstances where the landlord on a reasonable enquiry would have been unable to discover a relevant defect. Accordingly:

Mr Wadsworth’s claim was dismissed both in the county court and on appeal to the High Court. It was held that the lease had to be construed in the context of the relationship between landlord and tenant. Clause 2(5) of the upper flat lease obliged the lessee to pay all costs and charges and expenses incurred by the lessor in abating a nuisance at the flat. However, it did not give the lessor an express right to enter that flat to abate any nuisance, only a right to recover the cost of abating a nuisance by entering the flat, where such a right to enter would arise at common law. Clause 2(13) of the lease of the upper flat permitted the lessor to enter the flat for the purposes of ‘laying down, maintaining, repairing and testing drainage, gas and water pipes and electric wires and cable and for similar purposes’. These purposes did not include repairing bath sealant, as that was not similar to the other purposes listed in clause 2(13). The sealant had a connection with water but that was all, and entry for the purpose of repairing the bath sealant alone was not covered by clause 2(13).

The Court of Appeal allowed the tenants’ appeal. At the second hearing the tribunal could not go behind the finding at the first hearing that the council had been in breach of contract and find that there was no breach. At the second hearing the tribunal was simply concerned with assessing the compensation which was due as a consequence of the breach.

The Court of Appeal allowed the council’s appeal on liability. The breach of covenant had immobilised the lift which was, accordingly, ‘safe’. The stairs were ‘safe’. The plaintiff’s stumbling and falling on the stairs was not a reasonably foreseeable consequence of the breach of covenant in respect of the lift. Stairs are an ordinary feature of life and there is no more than a bare possibility of extra or added risk of injury in climbing stairs.

The Court of Appeal refused the council’s application for leave to appeal. Roch LJ stated that there was ‘no reasonable prospect of a successful appeal’. The award was ‘not wrong in principle or manifestly excessive’.

The Court of Appeal dismissed her appeal. The running costs were not recoverable because they were ‘a necessary consequence of retaining the lease of the flat and would have been offset by the outgoings included in the award for alternative accommodation if that had been claimed’ (no claim for the cost of alternative accommodation was pleaded, but the Court of Appeal indicated that such costs could have been recovered if they had been pleaded). Damages for diminution in capital value were not recoverable because the lessee had not acquired the premises with the intention of reselling and there would be no long-term diminution in value when the disrepair had been rectified. Griffiths LJ stated:

The appeal was dismissed. Although Ralph Gibson LJ described the award as being ‘at least at the very top of any appropriate range of monetary awards for such a case’, he stated that the recorder’s approach to damages was right and that he had not erred in failing to take account of the rent as a prima facie indication in the level of damages. The award of damages was not ‘so high as by itself to indicate error’.

In the Court of Appeal, Russell LJ stated that in 1988 ‘the sum of £250 must … be regarded, when awarded by way of compensation for inconvenience, anxiety and discomfort, as little more than nominal’. He did not regard it as a case in which nominal damages were appropriate and, although recognising that the Court of Appeal will not interfere with an award of damages unless it is wholly out of keeping with established authority, increased the award of general damages from £250 to £1,000. He stated:

The Court of Appeal held that there were three heads of loss arising in nuisance: 1) loss of market value or other pecuniary loss arising from loss of use, 2) physical damage to the property and, 3) loss of amenity. Where damages were claimed for loss of amenity the court should assess damages by valuing the loss of the notional rental value with reference to the extent that the nuisance has impeded on the household’s comfortable enjoyment of the land. Loss of amenity is available where the house has been unoccupied. Only a child – or anyone else who lived on the land but did not have a cause of action in nuisance – can recover separate damages under Article 8. Such damages were likely, however, to be minimal in circumstances where their distress and inconvenience had already been factored into the assessment of damages in nuisance.

See Moorjani v Durban Estates (!!Housing Law Casebook - 7th edition:Moorjani v Durban Estate Limited!!) for the position under Landlord and Tenant Act 1985 s11.

Liability was agreed. The county court judge awarded £20,000 general damages for the 35-month period from January 2000 to December 2002 (period 1) when the tenant was in occupation, and £10,000 for the 21 months from December 2002 to September 2004 (period 2), when he lived with his parents. The judge determined a global figure for general damages and cross-checked his awards against a notional rental value of £1,000 per month.

The landlord appealed, contending that it was wrong in principle to base damages on a notional reduction in the market rent where the flat was the tenant’s home and not an investment property and the only rent payable was a ground rent. He submitted that the awards (equivalent to £6,800 pa and £5,700 pa respectively for periods 1 and 2) were excessive, particularly when compared to damages awarded in other housing disrepair cases (which indicated a ‘tariff’ of not more that £3,300 pa ‘in a worst case’).

The Court of Appeal held that assessment of damages based on market rent was not wrong. Wallace v Manchester CC (Wallace v Manchester CC) permitted this approach. Furthermore, a long lease of a residential property was not only a home but a valuable property asset. Distress and inconvenience caused by disrepair were not free-standing heads of claim, but were symptomatic of interference with the tenant’s enjoyment of that asset. Where the landlord’s breach of covenant had the effect of depriving a tenant of that enjoyment, wholly or partially, for a significant period, a notional judgment of the resulting reduction in rental value was likely to be the most appropriate starting point for assessment of damages. That reduction would not be capable of precise estimate but was a matter for the court rather than for expert valuation evidence. The award in respect of the first period was not supported by adequate reasoning and was excessive when viewed against the tenant’s own claim. This award was reduced to £13,500. The award of £10,000 in respect of the second period was upheld. The award was just under half the rental value for that period and was not open to criticism in principle.

The Court of Appeal held that the judge had overlooked the fact that the plaintiff’s financial difficulties had started before he had tried to sell but, nevertheless, held the claim for discomfort to be a ‘valuable’ one and substituted £4,000.

The Court of Appeal dismissed the lessor’s appeal. Following Ehlmer v Hall (1993) EG 115 the lessor was entitled to claim damages to recover the loss in rent payable by the tenants below as a result of the damage caused to the flat by the lessee’s negligence, or the negligence of his agents.

On appeal, the landlords contended that the judge had erred on causation. Their expert evidence suggested that, even if the glass had not already been broken, the impact of a fall would still have shattered it and caused injury. The Court of Appeal dismissed the appeal. The expert evidence was based on a factual premise as to the manner of the fall and the likely impact on the glass. The judge had been entitled to make his own assessment of the facts on all the evidence. His implicit finding that undamaged glass would probably not have been broken by the particular fall or would have caused a less serious injury would not be disturbed.

The appeal was dismissed. Parker LJ stated that the fact that offers of alternative accommodation were made but not taken up ‘cannot … affect the question of damages’.

The Court of Appeal upheld the trial judge’s finding in favour of the tenant. The nature of the building, the visible disrepair and the admitted breach of covenant entitled the judge to find that criminal damage after forced entry through the defective front door was a ‘not unlikely’ consequence. A door which is obviously broken and dilapidated is an invitation to would-be burglars. The forcing of the main door was, as a matter of common sense, a substantial cause of the eventual loss, even though the most proximate cause was the forcing of the inner door. Stansbie v Trowman [1948] 2 KB 528, CA, was followed and applied – an attempt to distinguish it as a ‘one-door’ case failed. A burglar who has gained access through the main front door is out of sight of passers-by and more likely to force an internal door.

The Court of Appeal allowed her appeal and remitted the case to the county court judge for damages to be assessed. The Court of Appeal indicated that there was no breach of covenant by a landlord until expiration of a reasonable time for putting the house into adequate repair. In view of the local authority’s notice, it concluded that such time had expired by 1 January 1980. For the following seven months the plaintiff was either living in an unrepaired house or living in alternative accommodation. Damages for such inconvenience could not ‘be described as “negligible”’. The Court of Appeal stated that the plaintiff was entitled to recover the cost of redecorating even though the tenancy agreement contained no obligation to decorate on the landlord’s part. She should also be compensated for the work of clearing up debris and cleaning up after the completion of building works. She was also entitled to the cost of renting alternative accommodation and storing furniture.

The Court of Appeal decided that some allowance should be given by way of mitigation and reduced general damages for discomfort and dampness from £800 to £700.

After reviewing cases on damages for breach of covenant, including Lock v Furze (1866) LR 1 CP 441; Calabar Properties Ltd v Stitcher (Calabar Properties Ltd v Stitcher) and City and Metropolitan Properties v Greycroft Ltd [1987] 1 WLR 1085 (see Housing Law Casebook 3rd edition, K7.23), the Court of Appeal held that the plaintiffs were entitled to recover loss of rent. The damage occurring (ie, loss of rental income) was ‘not very unusual and was easily foreseeable’ within the first rule in Hadley v Baxendale (1854) 9 Ex 341.

In 2011, Mr Moorjani issued a claim for damages from Durban. He contended that he was entitled to special damages for the costs of the repairs to the doors, master bedroom and electrics. He also sought general damages arising from the failure to keep the common parts in repair between 2005 and 2011 and the failure to repair the damage to the flat caused by the leak for the period between April 2006 and February 2007 (ie from when the contractors were instructed to when he completed the works of repair to the flat).

HHJ May QC, refused to award damages for the period in which Mr Moorjani did not live in the flat and dismissed his claim for special damages. She did, however, award him damages arising from the poor decorative state of the common parts for the period in which he was living in the flat. The sum equated to one to two per cent notional reduction of the rental value of the flat, ie £1,500 over three years. Mr Moorjani appealed.

The Court of Appeal allowed the appeal in part. The judge had been wrong to dismiss claim for special damages. Mr Moorjani had proved that the doors and master bedroom had been damaged by the leak in 2005. He had also shown that he had drawn these matters to Durban’s insurer’s attention. It was therefore incumbent upon Durban to use the insurance money to carry out those repairs. The judge had, however, been right to refuse the claim in respect of the electrical repairs as the expert evidence did not demonstrate that they had been damaged by the leak in 2005.

It was not appropriate to interfere with the judge’s decision to award a one to two per cent notional reduction of the rental value in respect of the common parts. In awarding damages, she had applied the correct principles and as a county court judge had considerable experience of assessing damages in cases of this type, which the Court of Appeal did not.

The judge had, however, been wrong to refuse to award general damages for the periods in which Mr Moorjani had not been living in the property. Damages for breach of a repairing covenant of a lease are for the impairment to the rights of amenity afforded to the lessee by the lease, ie the right to the enjoyment of occupation of a specific property for a specified period arising from the payment of a premium. The quality of enjoyment is underpinned by the lessor’s promise to perform its repairing obligations under the lease. Discomfort, inconvenience and distress are only symptoms of an interference of that right. It is therefore not a fatal obstacle to a claim for damages arising from that impairment if the lessee has decided not to make use of the property. That does not mean that the use of the property is irrelevant to the quantification of damages. A lessee who decides to live in alternative accommodation, whether in mitigation or not, should not in principle be entitled to 100 per cent notional reduction in the rent. It ought not, however, wholly cancel out the loss occasioned by the impairment of the lessee’s right to enjoy his leasehold interest irrespective of where he lives. If the lessee does decide to live elsewhere he will, subject to an obligation to mitigate, be entitled to the cost of renting alternative premises. In certain cases, a lessee may be entitled to damages in excess of the current rental value, eg where a lessee or a member of the family has suffered from ill health. In other cases, however, the circumstances of the lessee may result in the award of damages being reduced.

It followed that the judge had been wrong to dismiss claims for general damages for the periods in which Mr Moorjani had not lived in the flat. The Court of Appeal decided that had he occupied the flat between 2005 and 2008 it would have awarded a five per cent notional reduction in the rent for the common parts. However, as he had been living elsewhere this was reduced to 2.5 per cent. Likewise, in respect of the flat, the Court of Appeal decided that had he been living in the property between 2006 and 2007 it would have awarded a 15 per cent notional reduction in the rent, but reduced the figure to 7.5 per cent.

The Court of Appeal allowed the appeal. Although the guidelines in Wallace ‘are not to be applied in a mechanistic or dogmatic way’, and that there are cases ‘where the level of distress or inconvenience experienced by a tenant may require an award in excess of the level of rent payable’ if an award is made in excess of the rent payable, ‘clear reasons need to be given’. The facts of the case, notably the landlord’s conduct, must warrant such an award. HHJ Cotran’s award was manifestly excessive. No explanation was given by the judge about how he arrived at the award. The court accepted the submissions of counsel for the landlord that the maximum award should be broadly equivalent to the rental value of the premises. The court referred to ‘a basic rule of thumb that – all other things being equal – the maximum award of damages should be the rental value of the premises’. It substituted a figure equivalent to 75 per cent of the rent for a period when Mr Shine was living in very poor conditions, without a bathroom and with no gas supply. For a later period of two and a half years, when conditions were worse, the court took the full rental value, but reduced damages by 75 per cent to take into account the fact that works would have been completed within six to nine months if the tenant had co-operated by moving out of the property to allow the works to be completed. Damages were reduced to £8,000. The Court of Appeal also held that the landlord was entitled to set off the interlocutory costs against the damages.

The landlords’ appeal was dismissed. Glidewell LJ stated that rent officers value premises taking into account not only the condition of the premises, but also the landlord’s covenant to repair, which is obviously of value to the tenant. The rent officer would not assume that the covenant would not be carried out.

The Court of Appeal dismissed the tenant’s appeal. Morritt LJ said:

HHJ Hicks QC, having referred to his own experience in the county court, to the reported cases cited with approval in Wallace v Manchester CC (Wallace v Manchester CC), to Wallace itself, and to the notes of cases appearing in Legal Action, held that the reason why damages were often assessed for breach of covenant to repair by reference to rent was that:

HHJ McKenna took a ‘broad-brush’ approach in calculating a global damages award. The period of loss was taken to be six years, with some periods being worse than others and some problems being intermittent. General damages were awarded at a rate of £1,750 per year, being around 38 per cent of the rent, namely, £10,500 plus a ten per cent uplift in line with Simmons v Castle.

The tenant was awarded general damages of £15,701, ie a diminution in value of the rent assessed at 30 per cent.

HHJ Faber awarded damages from March 2007 until the end of October 2009, when she held that the council had made a reasonable offer of accommodation. She discounted an earlier offer of alternative accommodation on the basis that it was reasonable for the claimant to refuse to move there as the front door had been kicked in. She awarded damages at 35 per cent of the rent of £386.04 per week amounting to £16,745.82 over 130 weeks.

The judge also awarded damages for the claimant’s psychiatric illness. She found that the damp conditions were the main, although not the only, cause, since the claimant had other issues in spring 2009 which also contributed to the onset of the renewed illness so that the damages should be discounted by 20 per cent for those other problems. She held that the case fell within the moderate Judicial Studies Board bracket (although it was difficult to decide where without a prognosis), given that the claimant was still suffering in January 2012 from the illness brought on largely by the council’s breach of contract. The judge held that the appropriate figure was £10,000 discounted by 20 per cent to £8,000.

The judge also held that the owner was liable to the council in the same sum as that owed by the council to the claimant, despite the fact that the owner was being paid a much lower rent of £650 to £720 per calendar month as the owner was aware of the difference in rents. She also dismissed an argument that the council had failed to mitigate its loss as it could have done the repairs itself, since there was nothing in the head lease which would have permitted the council to do the extensive work required to put right the rising and penetrating damp.

The judge awarded damages at 50 per cent of the rent of £60 per week from 2003 to 2006 and 33.3 per cent of the rent from 2006 to 2009. The judge also awarded special damages which included the costs of the blankets and of replacing the windows and doors.

The judge preferred the evidence of the tenant’s environmental health officer to the pest control officer and CCTV expert relied on by the landlord, and found that the infestation had emanated from the drains, which were in disrepair.

On the tenant’s claim she was awarded general damages of £5,783.22, ie a diminution in value of the rent assessed at 40 per cent, plus an uplift of ten per cent in accordance with Simmons v Castle [2012] EWCA Civ 1288; [2015] 1 WLR 1239.

Deputy District Judge Gillman awarded damages for the period 1 April 2007 to 31 August 2008 at 30 per cent of the rent and for the period from 1 January 2012 to 10 February 2014 at 45 per cent of the rent. They were uplifted by ten per cent in accordance with Simmons v Castle [2012] EWCA Civ 1288; [2015] 1 WLR 1239. The judge also awarded £20 per week for the use of a dehumidifier 24 hours a day for eight weeks (having received details of average running costs) and £5 per week for additional heating costs for 183 weeks in the six years claimed.

HHJ Holman awarded damages of £650 to each child.

On the claim for specific performance, HHJ Phelan found that, given the attitude of the defendants, it would be immensely difficult to enforce a mandatory order. It was also impossible to assess the final extent of the works that would be required. He gave directions for the assessment of damages in lieu of specific performance and made an interim award of £11,500 to enable the tenant’s surveyor to put remedial works in hand. He awarded the following damages for the failure to repair: (a) diminution in value assessed at 50 per cent of the rent (£1,958); (b) special damages of £2,095; (c) damages for inconvenience etc at £1,500 per annum (£5,250); (d) exemplary damages of £3,000; and (e) interest at 15 per cent on special damages, 2 per cent on general damages; total £13,200.

HHJ Cochrane awarded the tenant, on appeal, damages of £1 per day.

The court found that the defendant had been on notice of disrepair from December 2007. There was significant dampness for six years in two bedrooms, and as a result the two rooms were sometimes unbearably cold. The defendant was justified in concluding that one of the bedrooms was unusable, and the other one had, in addition, draughty windows. The dampness came from a structural defect which the claimant did not remedy, namely, a defective conservatory. There were also gaps between the brickwork and the sliding doors (which had been stuffed with plastic bags), and for four years a leak from the toilet into the kitchen which led eventually to the collapse of the kitchen ceiling. A squirrel had become trapped above the kitchen ceiling and had died there. After a workman had attended the house to carry out repairs to the kitchen ceiling, he left the ceiling with a gap with it. For about a week, maggots fell from the squirrel’s corpse into the kitchen below, and later the corpse itself fell down. The court found that ‘this would have been quite disgusting … as well as being distressing and unhygienic’. The electricity supply had been installed incorrectly with the result that the defendant was without electricity for three days, suffered electric shocks and was justifiably concerned about her children’s safety. For another six months, until the house was properly rewired, there were temporary and potentially hazardous extension leads around the house and from a neighbour’s house.

Deputy District Judge McConnell awarded damages at 40 per cent of the rent for the final six months and 28 per cent for the preceding three years and four months. Rather than calculate what would have been a reasonable period during which the claimant should have repaired the defects, he reduced the requested damages of 30 per cent of the rent to 28 per cent for the principal part of the period.

On the tenant’s counterclaim, he was awarded £9,250 for disrepair, namely:

District Judge Sheldrake held that the tenant was entitled to damages for inconvenience at the highest rate and, adopting a global approach, awarded damages at £2,700 pa. An award of £4,000 was made for the total 17-month period. Special damages were awarded at £1,181.68, which included the cost of buying warm meals and two heaters.

HHJ Bevington awarded damages:

HHJ Copley adopted a broad-brush approach to the counterclaim. He accepted that works had been undertaken from time to time, but considered that it was clear that the works were not carried out in a proper fashion or reasonable time. With the exception of the ceiling and the replacement of the toilet in January 2009, remedial works were, at best, temporary and, at worst, useless. It was obvious that no reasonable skill, care or materials were used to deal with the leaks, damp, electrical or other defects in this property. Other obvious matters such as the banister, defective front door and windows were simply ignored. It was also clear that there was no proper making good in relation to the works which had been done.

Since the extent of the disrepair had varied, the judge decided to look at it in the round. He awarded £2,500 per annum for the 3.5 years from mid-2005 to December 2008/January 2009, amounting to £8,750. Although the defendant was not complaining in 2009, there was disrepair and she was entitled to a sum awarded at £750 for that year. The judge awarded a further £1,000 per annum for 2010, 2011 and 2012, resulting in a total award of £12,500.

HHJ Cox awarded general damages of £4,500 for the first two and a quarter years of the tenancy and a further £3,500 for the 18 months from the flooding to the trial. In arriving at both figures he took into account the rent payable rather than awarding a separate sum for diminution in value. Then, adopting the approach suggested in Wallace v Manchester CC (Wallace v Manchester CC) he tested the level of compensation against the rent and, finding it equated to broadly 50 per cent of the rent over the period of tenancy, confirmed the award. He also awarded special damages of £1,950 (£455 extra heating costs, £750 for redecoration, £745 for damaged possessions) and interest of £118.33. Total: £10,021.44 (after £51.89 set-off for arrears of rent).

HHJ Viljoen found that, on the facts (namely, that there had been severe damp in the bathroom but that it had remained usable and some dampness in the kitchen, living room and bedroom), this was not a particularly serious case of disrepair. He awarded damages of 20 per cent of the rent of £1,300 per month. The claim for special damages was dismissed as the tenant failed to persuade the judge that he had suffered any damage to his possessions.

District Judge Trent held that the infestation was the responsibility of the trust and that its complaint about the laminate flooring was unreasonable. He accepted that the installation of the laminate flooring had abated the infestation, which he found to have been de minimus. He awarded general damages of £300 per year for 14 years (no limitation defence having been pleaded) and special damages of £1,300 to cover the costs of the carpet and laminate flooring, giving a total award of £5,500.

In a reserved judgment, District Judge Stuart Brown awarded damages of £8,654 comprising: (a) diminution in value assessed at 20 per cent of rent for the period of the tenancy (£2,238); (b) general damages for inconvenience and discomfort at £750 per annum (£2,062); (c) general damages for ill health of £4,000 (the judge was satisfied that the adverse living conditions had played a part in the development of a serious depressive disorder which only began to lift slowly after rehousing); and (d) interest of £354.

District Judge Rand awarded a 30 per cent reduction in rent for the damp and defective windows and £1,000 for the gas leak.

HHJ Bradbury accepted that the landlord was not acting deliberately or maliciously in failing to carry out the repairs. The judge was referred to the decisions in Wallace v Manchester CC (Wallace v Manchester CC) and Shine v English Churches Housing Group (Shine v English Churches Housing Group) and, in particular, the recommended approach of assessment damages by way of a putative rent reduction. He made a global assessment of damages in the sum of £14,000 where the annual rent was £10,400. This figure equates to approximately £4,000 per annum (or 40 per cent of the annual rent) taking a three and a half year period of liability.

She brought a claim in respect of disrepair throughout the period of the tenancy, namely:

HHJ Colin Smith QC held that each joint tenant was separately entitled to general damages for inconvenience and distress, but as they were in a relationship and gave each other support, a discount of 20 per cent was appropriate. He awarded damages from October 1993 to March 2000 in the sum of £7,550 and interest for each claimant (total award £17,400). He cross-checked this award by reference to the rent payable and was satisfied that the damages (equivalent to one-third of the rent) were correctly assessed.

District Judge Southcombe awarded damages for (1) diminution in value at 30 per cent of the rent for the first year, 50 per cent for the following six months and 60 per cent for the last year; (2) damages for inconvenience and discomfort of £1,250 for the first year, £700 for the following six months and £1500 for the last year; (3) £750 for the effect on health; and (4) special damages of £1,918. The total award was £8,415 excluding interest.

HHJ Wright accepted that there was significant disrepair, although the property was habitable. The tenant had been unable to have a bath or shower because she was worried about the overflow leaking, the patio door was a security risk and the front door, which was difficult to open and shut in the winter months, was both a security and fire risk. The judge awarded damages at the rate of 20 per cent of the rent from March 2004 to July 2007, and 25 per cent of the rent from July 2007 to January 2009, as the level of disrepair increased and because of the rodent problem. The rent payable was as follows: £520 per month from March 2004 to June 2005; £600 per month from June 2005 to September 2006; and £650 per month from September 2006 to date. So, the award totalled £7,455 general damages and £400 special damages, plus interest on general damages in the sum of £211.

HHJ Sich awarded general damages of between £500 and £1,000 for a period of seven and a quarter years, producing an award of £5,450.

District Judge Taylor rejected the defence. The fact that the property was old did not mean that the premises should not be wind and watertight. The defects at the property were not de minimis. While the making good works may have been minor, the eradication of the water entry was not. The defendant had adopted a dismissive attitude to the claimant’s complaints and full repairs had taken slightly more than a decade, although the condition of the property had somewhat improved between 2006 and 2010. The defendant was liable from the end of December 2000. Adopting a reduction in rental value approach, District Judge Taylor held that this should be 30 per cent on the basis that over the years the extent of the disrepair diminished.

As well as the problem with the rats, there was also undisputed evidence of rising damp in the flat and a problem with a defective boiler which produced hot water only intermittently. The landlord eventually offered the tenant alternative accommodation, but this was over a year after the rat problem was first reported to the housing trust.

District Judge Davies awarded damages on a ‘broad-brush’ basis, and considered that the rat infestation was by far the most serious aspect caused by the disrepair. She awarded damages at the rate of 80 per cent of the contractual rent for the period commencing 28 days after notification of the rat problem until a reasonable offer of accommodation was made to the tenant. For the period after the tenant had refused what the judge held to be a reasonable offer of accommodation, she awarded damages at the rate of 20 per cent of the contractual rent until the termination of the tenancy amounting.

District Judge Manners found the conditions intolerable and awarded damages totalling £14,250, as follows:

District Judge Musgrove described this as a serious case because the inconvenience and distress to the family was wholly disproportionate to the landlord having to incur expenses to resolve the problems. He found that the provision of heating and hot water is the basis of living in the 21st century and their absence was wholly unacceptable.

The judge awarded damages of:

HHJ Morgan awarded general damages of £5,500 to compensate for the inconvenience and discomfort over a period of eight years (from service of counterclaim to date of trial). He said that the cost of installing extractor fans, set against the value of the premises and the alternative of repeated piecemeal repairs, was clearly one which any reasonable property owner would regard as the obvious and practical course for disposing of the problem of condensation and dampness (Elmcroft Developments Ltd v Tankersley-Sawyer (Elmcroft Developments Ltd v Tankersley-Sawyer) and Stent v Monmouth DC (Stent v Monmouth DC)). The landlord was obliged to install fans as part of his obligation to keep the structure of the premises in repair.

District Judge Armon Jones awarded: (a) 10 per cent of the rent (£17.50) for loss of value – the bathroom was one of five rooms in the flat and the tenant had ‘enjoyed’ at least partial use of it (100 per cent divided by five divided in half); and (b) general damages at £30 per week. Total: £1,000.

District Judge Moss awarded the tenant 40 per cent of the rent for the period between November 2007 and March 2008 for the faulty hot water system and storage heaters; 30 per cent of the rent for the period between November 2008 to May 2011 for the intermittently heating and hot water; an additional award of 30 per cent for the period between late 2008 to late 2009 for the disrepair to the roof and resulting dampness; an additional award of 50 per cent of the rent from the end of 2009 to the end of 2010 for the period that the tenant could not use his bedroom. The tenant was also awarded £850 for the aggravation of his asthma by the conditions of the property.

Deputy District Judge Sofaer awarded the tenant a 20 per cent reduction in the rental value for the period from 1 January 2009 to 23 June 2013. For the period from 30 June 2013 to 30 September 2015, he awarded the tenant 40 per cent in the rental value. Both awards were increased by 10 per cent as per Simmons v Castle [2012] EWCA Civ 1288; [2015] 1 WLR 1239.

HHJ McKenna rejected the claim that it was reasonable to delay all repairs until the modernisation programme began in October 1998. He found that the works should have been undertaken by the end of July 1998. He accepted that the works were very noisy, dirty and disruptive (Ms Thornton was confined to one bedroom for over three months) but that no specific criticism could be made of the manner in which the council carried out the modernisation and repairs. Applying the test of whether there had been a breach of the covenant of quiet enjoyment as set out in Speiro Lechouritis v Goldmile Properties Ltd (Speiro Lechouritis v Goldmile Properties Ltd), namely, whether the defendant had taken all reasonable steps to minimise the potential risks, the judge found that the council had breached the covenant. He was not satisfied that the council had taken all reasonable steps: it should have rehoused Ms Thornton, particularly given the ages of her two children, and it was irrelevant that she did not ask to be rehoused. He also found that the council was unable to rely on Ms Thornton’s failure to continue to complain after the works were done to avoid liability after March 1999. A claim for damages by Ms Thornton’s children, who had suffered no personal injury, on the basis of a breach of Article 8 ECHR was rejected. There would only be a breach of Article 8 in the most serious cases where a minimum level of interference had been reached. The interference in this case came nowhere near the appropriate threshold.

Damages of £3,000 were awarded for the period from August 1998 to March 1999 (equivalent to an annual award of £4,500), and £1,000 per annum was awarded for the period from March 1999 to the trial date. These sums amounted to an award of £7,667 plus £280 special damages.

HHJ Mitchell awarded 30 per cent of the rent for the rising damp, but deducted six weeks of rent from the award for the period in which the tenant had failed to provide access. He also awarded an additional 25 per cent for a six-week period in which there had been a breach of the covenant for quiet enjoyment for the period in which the works were carried out on the basis that the tenants had been severely inconvenienced by the manner in which the works had been carried out, which had rendered the property virtually uninhabitable, and by the fact that the works had been unreasonably delayed. The authority ought to have provided alternative accommodation or properly sealed the room where work was being carried out and used industrial vacuum machines to remove the dust from the air as the works were carried out. The use of ineffective dust sheets had not been sufficient. Both awards were increased by 10 per cent as per Castle v Simmons.

HHJ Cox found for the claimants and described it as the worst disrepair and nuisance action he had tried. He assessed damages on the basis that there had been a progressive deterioration in conditions. He awarded £2,500 per annum for the first three years, £3,500 per annum for the next two years and £4,500 per annum for the final two years. He assessed damages for six months’ inconvenience in temporary accommodation at £1,500. The total damages amounted to £25,000 plus £625 interest.

Following a contested trial, HHJ Ellis awarded Ms Voysey general damages in the sum of £4,750 consisting of £1,250 for three-and-a-half months without heating and hot water, £3,000 for 29 months in respect of the leak in the conservatory and £500 for two years of faulty drainage in the bathroom, described as the ‘least serious’ aspect of the claim.

In around 2004, Amicus began to receive complaints, from tenants in the neighbouring properties, of a mice infestation in the communal parts. In June 2005, Ms Walsh complained to her housing officer after she discovered that mice were present in the flat. She was told that it was her responsibility to remove the mice and that she should contact the local authority. The problem with mice persisted and Ms Walsh continued to report their existence to her housing officer. Her housing officer failed to pass these complaints onto Amicus’ maintenance department.

In 2010, after Ms Walsh’s MP had written to Amicus on her behalf, Amicus began taking steps to ‘mice proof’ the flat, ie. using foam to cover access points into the kitchen, putting bait boxes throughout the block and repairing holes in the floor and between the floor and skirting board. Unfortunately, the problem with mice persisted.

In October 2011, Ms Walsh’s solicitors instructed a surveyor to inspect the property. His report found that there was a ‘severe mice infestation’ within the flat and included photos of mice droppings throughout the flat. His opinion was that it was likely that the mice were entering the roof space above Ms Walsh’s flat through a hole in the wall. They were then entering her flat from the roof via a riser duct that entered her kitchen. It was also possible that they were entering through a hole in the wall between the skirting board and the floor. The ‘mice proofing’ works had not been carried out properly and the whole block needed baiting.

It was not, however, until March 2013 that all of the works were completed and the mice disappeared.

Ms Walsh issued a claim for general damages, inter alia, in nuisance on the basis that the mice were entering the property from the roof space which had been retained by Amicus. Moreover, that Amicus had been put on notice of this since 2005 and had failed to take reasonable steps to abate the nuisance within a reasonable period. She complained that the mice had caused her considerable distress and inconvenience. As an example, she had stopped using her cooker because it was often covered in mice droppings.

Ms Walsh’s claim succeeded in nuisance. Deputy District Judge McCloskey held that the presence of mice was less serious than rats, but as serious as cockroaches. He awarded her a 25 per cent diminution in rent for the period from January 2006 to March 2013. This took into account a period of six months, which the court deemed would have been a reasonable period for Amicus to abate the nuisance.

District Judge Sterlini awarded general damages of £1,800, being a 100 per cent reduction in the rent, for six weeks when the tenant had had to move out because the premises were uninhabitable and a global award of £7,500 for a period of three years, which amounted to a diminution in value of the rent assessed at 17 per cent.

HHJ Lopez awarded the tenant 80 per cent of the rent for a period of 10 and a half years as the lack of hot water for extended periods and the ineffective heating must have made life unbearable. When coupled with the regular annual infestation of rats the property must have been at times insufferable. The award was increased by 10 per cent as per Simmons v Castle [2012] EWCA Civ 1288; [2015] 1 WLR 1239.

Allowing the tenants’ appeal, the Court of Appeal held that the term was too wide and ambiguous to exclude a right of equitable set-off, which could only properly be excluded by an explicit express term.

The Court of Appeal, after a thorough review of the law, held that the tenant’s right to claim damages against a predecessor in title of a present landlord by way of equitable set-off was a personal right, not a right which ran with the land so as to entitle the tenant to claim against arrears that had accrued to the present landlord.

The Court of Appeal allowed the freeholder’s appeal. It would be unjust in the eyes of equity for the defendant’s claim to succeed if he had not paid service charges. The freeholder was entitled to an equitable set-off. In view of Limitation Act 1980 s36(2), whereby the usual time limits do not affect any equitable jurisdiction to refuse relief, that part of the defence was not statute-barred.

The defendant appealed unsuccessfully to the Court of Appeal. The purpose of Part 2 was to provide a scheme for the appointment of a manager who would carry out the functions required by the court. He did that in his own right as a court-appointed official. The claimant had not been appointed as manager of the landlord or of the landlord’s obligations under the lease. The manager should, when appointed, ‘come in with a clean sheet and be able to collect service charges due from the tenants and use the money so obtained for repair of the premises’. The defendant was not entitled to set-off ([2002] 30 EG 135).

The Court of Appeal allowed Mr Smith’s appeal. This was a case in which the rules of equity must prevail. The view taken by Lightman J in Lotteryking Ltd v AMEC Properties Ltd [1995] 2 EGLR 13 was correct – a tenant’s right to set off his claim for damages for breach of a provision in a collateral contract which ran with the reversion was exercisable not merely against the person entitled to the reversion at the date of the breach but also against any successor in title. The successor in title acquired the reversion and the benefit of all covenants contained in the lease subject to all equities at the date of his acquisition. Second, if the law was as held by the judge, it would be asymmetrical and anomalous and would distinguish on no just basis between the tenant who, faced with breaches of his landlord’s repairing covenant, could find the money and obtain access to do the works and the tenant who, in the same situation, was forced by lack of means or want of access to put up with the consequences of repair. Rent today is correctly regarded as consideration not merely for granting possession but for undertaking obligations that go with the reversion. Provided that the nexus between the rent and the breach is appropriately close, what the common law recognised as an abatement of rent where the damage had been quantified in expenditure is treated by equity as the potential subject matter of a set-off where the damage required quantification. Mr Smith was therefore entitled to set off against Mr Muscat’s claim for damages for breach of his repairing obligations, because the debt, a chose in action, vested in Mr Muscat as assignee subject to all equities which were available to Mr Smith against the previous landlord. These included the previous landlord’s liability to pay unliquidated damages for disrepair. The claim and counterclaim were remitted for trial in the county court.

The Court of Appeal, following British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd (British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd) held that the tenant was entitled to set off the damages and that she had a complete defence to the claim for arrears of rent. The county court judge’s findings in relation to reasonableness were, therefore, immaterial but the Court of Appeal went on to indicate that he had been ‘plainly wrong’ in finding it reasonable to make a possession order to take effect five months later. The tenant’s appeal was allowed.

After considering the Office of Fair Trading guidance on Unfair Terms in Tenancy Agreements and Khatun, Zeb and Iqbal v Newham LBC and OFT (Khatun, Zeb and Iqbal v Newham LBC and Office of Fair Trading), District Judge Wright struck out the no-set-off clause on the basis that it failed the test of fairness and was contrary to the requirements of good faith. (See Director General of Fair Trading v First National Bank plc [2001] UKHL 52; [2002] 1 AC 481; [2001] 3 WLR 1297, HL.) It therefore fell foul of the regulations. The judge allowed the counterclaim and awarded damages of £1,500 for the six-month period of occupation. Although the actual disrepair was not substantial, reference had to be made to the fairly substantial rent for these particular premises.

HHJ Grant dismissed the appeal. After referring to Rahman v Sterling Credit Limited (Rahman v Sterling Credit Ltd), he concluded that the district judge did not make an error in law in permitting the tenant to raise a counterclaim which included either in fact or in effect a claim to set off. He had not exercised his discretion outwith the ambit of discretion that was available to him. It was clear from the transcript that the district judge did have regard to the issue of delay. The ground of appeal that the district judge had not had regard to the fact that the claimants had been deprived of a limitation defence had not been raised below.

The Court of Appeal held that, even if the landlord had been incompetent or negligent, there had not been a deliberate flouting of the court’s order. The appropriate penalty was a fine of £1,000 and payment of the tenant’s costs on a common fund basis.

In judicial review proceedings, Sedley J held that the court staff had no discretion. CCR Order 29 r1(3) required the chief clerk, as the proper officer, to endorse a penal notice. In the case of a local authority landlord, he held that Form N77 would need to be adapted and also that it was not necessary for the notice to specify a particular officer.

The matter was remitted and the county court office (on advice from the Lord Chancellor’s Department) endorsed a penal notice in the following terms:

Interlocutory appeals in both actions were heard together. The Court of Appeal accepted that the court’s power to appoint a receiver was unlimited, provided that it was exercised judicially. However, it is improper for the court, by the appointment of a receiver and manager who acts as agent of the court, to assume powers and duties which parliament has expressly conferred on another body (Gardner v London, Chatham and Dover Railway Co (No 1) (1867) LR 2 Ch App 201). In the case of council tenants, parliament had by Housing Act 1957 s111 (now Housing Act 1985 s21) given local authorities the duty of maintaining such accommodation. Accordingly, the Court of Appeal held that it was wrong to appoint a receiver to manage local authority housing accommodation. The court did, however, state that mandatory interlocutory injunctions may be granted in such cases, but only in rare or exceptional cases, for example where there is:

The Court of Appeal held that Pollway was not the person in control and the council’s appeal to the House of Lords was dismissed. As all the flats were already leased at low rents, Pollway could not receive a rack rent (ie, at least two-thirds of the full rent) or let them at a rack rent, as required by Housing Act 1957 s39(2). In view of this, the notice was a nullity, and there was no obligation on the company to challenge it by appealing to the county court.

The Court of Appeal dismissed the appeal. While in principle there is nothing to prevent an authority serving two improvement notice on two different owners that require two different sets of works to alleviate one problem it was to be discouraged. In the circumstances, the authority ought to have served one notice on Ms Peacock as the first alternative was the cheapest way to deal with the inadequate fire resistance between the flats and Mr Wood could not be obliged to carry out work to a property that he did not own. The Upper Tribunal had therefore been entitled to quash the notice served on Mr Wood.

Collins J allowed Mr Odeniran’s appeal. The requirement in section 13(3) was mandatory. There was no doubt that the notice was defective and, accordingly, a prosecution for failure to comply with it was inappropriate.

Mitting J held that the provisions of the Act had not been introduced to protect individuals or promote that protection, but to promote and protect public health and the condition of low-cost housing. Sections 189 and 604 had no sufficient link with Article 8 for Article 14 to be engaged. The application was refused.

The Upper Tribunal dismissed the appeal. The RPT had made no error of law, and its findings of fact: that the weather forecast showed that it was not unusually cold for the time of year; that, in any event, the occupiers were not wholly without heating; and that they had already been without heating for several months, were soundly based.

The judgment provides an instructive guide to hazards assessment and offers guidance on the correct approach to the conditions for emergency remedial action.

On a further appeal, the Upper Tribunal found that the RPT has misdirected itself on the correct relationship between Housing Act 2004 Part 1 and the building regulations, but had, nevertheless, reached the right conclusion.

The Upper Tribunal allowed the authority’s appeal. Not receiving an improvement notice was capable of constituting a good reason for not appealing against it within 21 days. In this case, however, the improvement notice was presumed to have been served by Interpretation Act 1978 s7 unless Mr Tyas could prove that it had not in fact been served and the Residential Property Tribunal had not made a finding that the notice had not been received to rebut that presumption; it had simply accepted that it was possible that the notice had not been received. In the absence of a finding either way it did not follow that Mr Tyas had a good reason for not appealing within 21 days and it was necessary for the matter to be remitted to the Residential Property Tribunal to decide if he had received the notice or not.

The Upper Tribunal conducted a rehearing and allowed the appeal. The fact that the windows met Building Regulations and LACORS guidance was highly material and should have been put before the tribunal by the council.

On 27 December 2009, Ms Golovina left the cottage to stay in London over the new year. Over this period the pipes burst and flooded the property causing £128,000 in damage. Mrs Judd’s plumber discovered the damage in early January 2010 and noticed that the heating was not on. Mrs Judd’s insurers paid her for all of the loss suffered. Ms Golovina did not return to the cottage and the tenancy was surrendered on 26 October 2010. Mrs Judd’s insurers subsequently brought a claim, in the name of Mrs Judd by subrogation, against Ms Golovina to recover, amongst other things, the sum it paid Mrs Judd on the ground that it was the negligence of Ms Golovina, i.e. leaving the heating off, that had caused the pipes to burst.

Holgate J dismissed the claim. A covenant by a landlord with his tenant to insure the demised premises in return for mutual obligations by the tenant to contribute to the cost of insurance through the payment of rent, or a separate contribution to the insurance, is an important indicator that the parties intended that the tenant (a) need not take out insurance for the risk covered by the landlord and, (b) would not be liable for any loss or damage suffered by the landlord falling within the scope of that which the landlord has agreed to cover (Rowlands v Berni Inns Limited [1986] QB 211). It followed that Mrs Judd’s insurers’ claim failed. In any event, there was insufficient evidence that Ms Golovina had been at fault for the pipes bursting; it was her evidence that she had left the heating on before leaving the cottage.

The House of Lords allowed the council’s further appeal. The arrangement of rooms, which were not in themselves insanitary, did not fall within Enviromental Protection Act 1990 s79(1)(a). There was nothing wrong with the WC, drain or basin and so nothing in the premises themselves that was prejudicial to health. It was not sufficient to render the house itself ‘in such a state’ as to be prejudicial to health that the WC and basin were in separate rooms or that to get from one to the other it was necessary to pass through the kitchen where food was prepared. The prejudice to health resulted from the failure to wash hands or to wash hands in the sink or the basin after access through the kitchen. Undesirable though this arrangement was, it was not permissible to give an extended meaning to the words in s79(1)(a), however socially or hygienically desirable that might be. They were directed to some feature in itself prejudicial to health in that it was a source of possible infection or disease or illness such as dampness, mould, dirt or evil smelling accumulation or the presence of rats. The object of section 79(1)(a) and its predecessors was to provide a means for the summary removal of noxious matters. Where there was a defective drain or WC it was obvious that that in itself could constitute a statutory nuisance and render the premises in such a state as to be prejudicial to health. That was not the present case. Lords Steyn and Clyde dissented, holding that the Act was intended to protect the public’s health and the words ‘prejudicial to health’ should be given a wide meaning.

The Court of Appeal, in dismissing the appeal, held that there was no conflict between Network Housing Association v Westminster CC (Network Housing Association v Westminster CC), R v Wheatley ex p Cowburn (1885) 16 QBD 34 and SFI Group plc v Gosport BC (1998) Times 13 February, DC (SFI Group plc v Gosport BC – in the Court of Appeal). Section 80(1) makes it clear that local authorities have a choice. They are required to serve a notice ‘imposing all or any of the following requirements’, namely ‘requiring the abatement of the nuisance’ or ‘requiring other steps as may be necessary’. Depending on the circumstances, it is open to them to take one or other course when serving the notice. Furthermore, they are under no obligation when exercising their discretion in making such choice to be more precise either as to the nature of the nuisance or the steps required to abate it. The course taken by the council was wholly appropriate. There is no obligation to specify a manner of abatement or the level of barking which would constitute a nuisance or the level that would be acceptable.

The Court of Appeal held that the Act introduced a self-contained criminal code giving rise to no private law right of action. Until parliament sees fit expressly to impose a civil liability on landlords to keep premises fit or healthy, non-tenant plaintiffs such as those in this case are without a private law remedy, unless Defective Premises Act 1972 s4 applies (which it did not here because there was no actionable disrepair).

The Court of Appeal dismissed her appeal. The same expression ‘injury to health’ had been used in earlier ‘sanitary statutes’. Parliament had intended to produce the same result as in earlier Public Health Acts. That expression had been interpreted in the sense of a ‘threat of disease, vermin or the like’. It was probable that parliament intended to leave the risk of injury by accident to be dealt with by local authorities under other available statutory powers such as the Building Act 1984 and the building regulations. The council did have power to withdraw an abatement notice once served.

The Divisional Court held that the correct date at which both the magistrates’ court and the Crown Court had to view the justification for and validity of the s80 notice was the date when the notice was served. The question of whether a statutory nuisance existed or was likely to recur should, in the context of an appeal to the Crown Court, be answered by reference to the position at the date of service of the notice. Johnson News of London v Ealing LBC [1990] COD 135, QBD was wrongly decided.

A subsequent appeal to the Court of Appeal was also dismissed. The Court of Appeal agreed that the Johnson News case was wrongly decided. The use of the present tense in the phrase ‘is not justified by s80’ in reg 2(2)(a) of the Statutory Nuisance (Appeals) Regulations 1995 SI No 2644 is indicative of nothing more than an intention to cross-refer to the provisions of Environmental Protection Act 1990 s80(1) which, on its true construction, requires the situation to be tested at the time of service of the notice. In any event it is not permissible to use secondary legislation as an aid to construction of primary legislation. The procedure under Environmental Protection Act 1990 s80 is quite different from that under Public Health Act 1936. The Court of Appeal noted that the 1990 Act provides for a single stage process and an appeal (whereas the 1936 Act did not), daily fines for the contravention of an abatement notice and grounds of appeal specified by regulations. There is also an absence of comparable language requiring the magistrates’ court to consider whether the nuisance has abated. It is also notable that the regulations contain the very strong word ‘quash’ and provide for a variation to have retrospective effect, as opposed to using the weaker word ‘set aside’, which acknowledged the validity of the notice until such time as it was set aside. There is also the striking deliberate omission in Environmental Protection Act 1990 s80 of any comparable provision to that contained in Public Health Act 1936 s94(3) in relation to costs. Any other construction would lead to the unsatisfactory situation of a defendant being able to defer abating the nuisance until the very last moment before an appeal to the magistrates’ court. Furthermore, if it were correct that the notice had to be quashed so long as there was no existing nuisance or likely recurrence when the appeal came before the magistrates or Crown Court, any conviction which might have been made would be at least arguably equally open to being quashed.

The Divisional Court allowed the tenant’s appeal by way of case stated. Beldam LJ said that, although the statute referred to commencement of proceedings by the civil process (complaint), that simply arose from a legislative oversight. Proceedings under section 82 were plainly criminal, should be commenced by the criminal process (information) and gave rise to a power to make a compensation order.

On appeal, the Divisional Court held that Magistrates’ Courts Act 1980 s34(1) gave the magistrates a discretion on the amount of the fine. Section 80(5), stipulating a daily fine of one-tenth of Scale 5, was not sufficient contra-indication to oust the statutory discretion.

The tenant appealed, contending that if parliament had intended such a defence to be available it would have enacted one, as it had in the Public Health Act 1936. The Divisional Court dismissed the appeal and held that such a defence was ‘obviously’ available, despite the absence of specific provision in the Environmental Protection Act 1990.

The Divisional Court rejected this contention. An objective test has to be applied when construing both limbs of section 79(1)(a).

On the tenant’s appeal, the Divisional Court held that the principles for the award of criminal compensation in statutory nuisance cases established under the Public Health Act 1936 (see Herbert v Lambeth LBC (Herbert v Lambeth LBC)) apply equally to Environmental Protection Act 1990 proceedings. Justices can and should award compensation in clear or straightforward cases. The Divisional Court rejected the contention that the justices had wrongly exercised their discretion on compensation on the specific facts. The fact that a tenant might not succeed in bringing successful civil proceedings in respect of damage caused by condensation mould growth was something to be taken into account by magistrates when deciding whether or not to make a compensation order. However, the absence of a civil remedy does not automatically mean that magistrates should award compensation. The Divisional Court allowed the tenant’s appeal against the magistrates’ refusal to award costs. Environmental Protection Act 1990 s82(12) entitles a tenant to costs ‘properly incurred’ and there was nothing improper in making the application for compensation.

The appeal was dismissed. Sullivan J said that Environmental Protection Act 1990 sets out a detailed statutory framework and states what has to be included in a section 82(6) notice, namely the matter complained of. It does not have to specify the works which are necessary to remedy the complaint. There is no reason to import additional requirements which are not set out in the Act. It would be unfortunate if magistrates’ courts were deprived of jurisdiction purely because of technical defects in section 82(6) notices. The letter and the report were a valid notice of intention to bring proceedings under section 82(6) and the magistrates were entitled to make a costs order under section 82(12) – see R v Liverpool Crown Court ex p Cooke (R v Liverpool Crown Court ex p Cooke).

The council appealed successfully. Notwithstanding the condensation dampness, the heating was not defective and the construction and method of heating supplied were adequate and not unsuitable. The state of the premises arose from the act or default of the tenants in failing to use the system provided.

The Divisional Court found that there was ample evidence to entitle the magistrates to come to the conclusion that the state of the premises was a statutory nuisance which was prejudicial to health. If the construction of a building is so unusual as to require some special form of heating to combat condensation, it is reasonable to expect the landlord to install it.

The Divisional Court allowed an appeal by way of case stated, and remitted the case for the justices to fix the amount of compensation. If the justices were satisfied that a nuisance existed, they were convicting for an offence and the power to award compensation followed. On the appropriate quantum, the court said that substantial sums should not be awarded where these could be recovered in civil proceedings (especially where the claim was for ‘personal injury’). However, where a civil court could not award damages (eg, because the conditions did not arise from disrepair), magistrates should take that into account in making an award. The Divisional Court expressly held that the provisions in the Environmental Protection Act 1990 are not materially different from those in the Public Health Act 1936.

Ms Jones’s appeal was dismissed. The magistrates had properly considered the process as a whole, and had properly concluded that the council had done all that could reasonably be expected to gain access to abate the nuisance. They were right to conclude that Ms Jones was responsible for the continuance of the nuisance at the time that the information was laid.

The tenant’s appeal was dismissed. Service on the senior estate manager did not comply with Environmental Protection Act 1990 s160 which provides that a notice must be served on a clerk to a local authority. Compliance with section 48 did not amount to authorisation for all documents connected with legal proceedings to be sent there. A liberal interpretation of what constituted notice was not appropriate to the Environmental Protection Act, which involved possible criminal penalties.

The local authority’s appeal was allowed. It would be wrong to refuse to convict merely on the basis that no reliable acoustic evidence had been produced. The evidence of an environmental enforcement officer or any other lay witness could be relied on.

Newham’s appeal by way of case stated was allowed. The magistrates had wrongly applied a subjective rather than an objective test. The correct test as to what constituted a statutory nuisance was whether the average person living in the defendant’s neighbourhood would consider the noise to be a nuisance: Murdoch v Glacier Metal Co Ltd [1998] Env LR 732. The magistrates were required to have regard to the expert evidence of Newham’s enforcement officer, but did not have to follow it if there were good reasons not to.

The Divisional Court quashed the justices’ finding. It is not necessary for EHOs to have medical qualifications to assess whether premises are prejudicial to health. The magistrates had wrongly substituted their own views for those of an appropriate expert. As there was no contradictory evidence and the issue was in fact one for expert evidence, the justices should have taken the EHOs’ evidence into account and accepted it. (See Southwark LBC v Simpson (Southwark LBC v Simpson).)

The Divisional Court dismissed the appeal. It would only be in an exceptional case that the council would be liable on such facts (eg, where the building had been designed or provided by the council in such condition, or so modified, as to be ‘doomed’ to dampness: Greater London Council v Tower Hamlets LBC (Greater London Council v Tower Hamlets LBC)). In the case of an ordinary house which could, with objectively reasonable heat input, avoid condensation dampness, the council would not be liable if such dampness arose: Farrar v Dover DC (Farrar v Dover CC).

Ms Quigley’s appeal was dismissed. There was no evidence of a statutory nuisance and, if there had been a statutory nuisance, she had unreasonably refused alternative accommodation that was clearly suitable. Under section 82(4)(a) a landlord can assert that he is not the person responsible for the nuisance where a tenant has refused an offer of suitable alternative accommodation while works are done. That defence can be relied on even where the refusal of accommodation occurred before the landlord was put on notice under section 82(6) and (7). The 1990 Act should be used responsibly, and not capriciously and irresponsibly as it had been in bringing this appeal.

The tenants’ appeals were allowed. The councils had been properly served. The notices had been sent to the councils as landlords and ‘the person to be served’ in section 160(5) was the council. Section 160(3) did not mean that the ‘secretary or clerk’ of a council was the only person who could specify another address for service. Another person could specify on behalf of a council an address for service of section 82 notices and in these cases had done so. The procedure under sections 79 and 82 was supposed to be simple and speedy. The councils had informed tenants how and where to report statutory nuisances and the s82 notices were accordingly served in accordance with section 160(5). The court added

The Divisional Court allowed the tenants’ appeals. Environmental Protection Act 1990 s82(12), which provides that the court ‘shall order the defendant … to pay to the person bringing the proceedings such amount as the court considers is reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings’, is a mandatory provision. Magistrates are not entitled to refuse costs if they are satisfied that a nuisance existed at the time of the complaint. There was no power to disallow costs where the court thought that proceedings need not have been brought. The only discretion vested in magistrates is to decide whether or not costs are excessive. The court also stated that the power to grant adjournments should not be exercised in such a way as to deprive a litigant of rights conferred by statute. The effect of the adjournment in Ms Hollis’s case had been to deprive her of the right to compensation under the Powers of Criminal Courts Act 1973 s35. The court has no power to adjourn without taking a plea simply to allow the landlord to carry out works.

Granting certiorari to quash the costs order, the Divisional Court (Watkins LJ and Rougier J) held that, following the repeal of the Costs in Criminal Cases Act 1973 s2(1), the justices had no general discretion on the question of costs. Provisions relating to costs are now to be found in Prosecution of Offences Act 1985 ss16 to 19. Section 19 (which was not relied on by the justices) restricts awards for payment of costs from tenant to council to cases of ‘unnecessary or improper’ conduct by the tenant. Accordingly, the costs order had been made without jurisdiction.

The Divisional Court granted an order of mandamus to compel the issue of the summons. After considering Quick v Taff Ely BC (Quick v Taff-Ely BC), the court was satisfied that section 82 proceedings would enable the court to make orders for improvement works to remedy condensation dampness which could not be achieved in civil proceedings.

The complainant sought judicial review. Dismissing the application, the court held that there is no ‘offence’ for s82 purposes unless a nuisance is proved to exist on the date of hearing. It followed that compensation could be awarded only in respect of that offence as alleged in the information. The earliest date that could be the subject of compensation would be the date of expiry of a 21-day notice (s82(6)) if the complaint had not by that date been rectified, because that was the first date on which the prospective offence could be prosecuted. The latest date would be the date of hearing.

Forbes J held that, applying R v Carrick DC ex p Shelley [1996] Env LR 273, the issues under Environmental Protection Act 1990 ss79 and 80 were matters of fact not discretion and if the authority was satisfied, on the balance of probability, that there was a statutory nuisance then it was under a duty to serve an abatement notice. In considering the rationality of the decision taken, the court would review the way in which the relevant investigations were carried out and their adequacy. As the subject matter was the claimant’s home and private life (each protected by Article 8(1) ECHR ), the court would subject the rationality of the decision and the process leading up to it to ‘anxious scrutiny’. Applying Cunningham v Birmingham CC (Cunningham v Birmingham CC), the test in measuring prejudice to health was an objective one (ie, not whether the claimant had been made ill, but ‘whether the health of the average person would be prejudiced’). On the facts, the investigations into the complaint were properly conducted, the conclusions were adequately reasoned and the decision made was neither irrational nor unreasonable.

His application was dismissed. The contention that a lack of adequate sound insulation could cause premises to be in such a state as to be prejudicial to health for the purposes of 79(1)(a) was no longer sustainable following R v Bristol CC ex p Everett (R v Bristol CC ex p Everett) and Birmingham CC v Oakley (Birmingham CC v Oakley). The premises in the present case were not themselves in such a state as to be injurious or likely to cause injury to health. They were not defective, unwholesome, filthy, verminous etc. It was simply that, when noise was caused in adjoining premises, they did not prevent the transmission of that noise. Parliament had provided for a separate statutory code under which local authorities had express powers and, in the most serious cases, duties to deal with sound insulation. In addition, the government had introduced the decent homes scheme by which planned improvements to the social and private housing stock would be made by 2010. The immense financial burden that would be imposed on social and private landlords if the court were, by the statutory nuisance route, to require the immediate upgrading of properties generally to a standard of sound insulation not required when they were constructed or adapted was also very real. Imposing burdens on that scale was a matter of housing management not environmental health. The council’s decision not to serve an abatement notice on the housing trust was not merely lawful, but legally correct.

The council’s appeal was allowed. The magistrates were not entitled to have regard to the hearsay evidence adduced by the chartered surveyor. Although they were entitled to consider questions of fact and, in doing so, to use their own knowledge, the question of whether a property was prejudicial to health required expert opinion and was not something on which they could draw their own opinion (see Patel v Metab (1982) 5 HLR 80). Experts are not required to have any medical expertise, simply expertise in their particular field. Surveyors are capable of being experts for these purposes if they have first-hand expertise in the field but, in this case, the chartered surveyor had specifically disavowed himself of any such experience and was simply relying on hearsay evidence.

HHJ Binning and justices dismissed the council’s appeal against conviction. The court was satisfied by the expert evidence of the link between the beetles and the pigeon carcasses and rejected the proposition that the council was not ‘responsible for’ the infestation. A nuisance order was made requiring a complete re-roofing within six months. The magistrate’s orders for compensation of £1,000, a fine of £50 and costs of £12,250 were confirmed.

He was fined £40,000 and ordered to pay £44,500 costs with 18 months’ imprisonment to be served in default of payment.

HHJ Connor and justices dismissed the appeal. The association was the ‘person responsible for’ the premises within section 82(4)(a). The conviction and abatement order were upheld and a further £4,000 was added to the costs payable.

The justices disagreed and awarded the tenant compensation of £1,119, representing £36.10 per week from 2 August.

Lay justices made a compensation order of £650 and a costs order for £3,172.

The justices convicted. Following R v Liverpool Crown Court ex p Cooke (R v Liverpool Crown Court ex p Cooke), the tenant sought compensation only from the date of issue of the information (the earliest date specified in it) to the date of the resumed hearing (3 months 2 weeks). The claim was not in respect of any specific damage but for the ‘anxiety and distress’ (see Bond v Chief Constable of Kent [1983] 1 WLR 40; [1983] 1 All ER 456, DC). They made a compensation order of £600 and a costs order for £4,044.

Stipendiary Magistrate White convicted, holding that to prevent recurrence the tenants would have to put in ‘wholly disproportionate effort and expense’. The council agreed an order for extensive works, including full gas central heating, and paid the tenants’ costs.

After a six-day hearing, between March 2004 and January 2005, the magistrates upheld the complaint and found that a statutory nuisance existed and was likely to recur. They ordered the council to abate the nuisance in eight weeks, to pay Ms Ogunlowo and her family compensation of £2,500 and costs which totalled many thousands of pounds.

The justices found that section 82(8) in mandatory terms required both a fixed initial and a continuing daily fine from the date of conviction (15 October 1996). It imposed fines totalling £45,500

Applying Greater London Council v Tower Hamlets LBC (Greater London Council v Tower Hamlets LBC) and rejecting the council’s evidence, Metropolitan Stipendiary Magistrate Bates held that without background heating the condensation was liable to recur. He entered a conviction, awarded costs of £3,500 and made a nuisance order requiring the provision of background heating. On the tenant’s application for a compensation order, the council argued that, as Environmental Protection Act 1990 Part 3 created no ‘offence’ until it had been established that there was a nuisance at the date of hearing or the likelihood of recurrence, there should be no compensation order in respect of loss suffered before the hearing. The magistrate rejected the submission and awarded £3,000 compensation.

On this last occasion the council was fined £1,000, ordered to pay costs of £800 and made the subject of a daily fine of £500 (the amount prescribed by s82(8)). The justices directed that the tenant should restore the matter to court on completion of the works so that the number of days for which payment was due could be ascertained.

Deputy District Judge Lightman refused to strike out and the council appealed. HHJ Reynolds dismissed the appeal. He held that the clearest evidence would be needed to establish that the compromise extended not simply to the criminal proceedings but to any prospective civil claims arising from the same matters. On construction of the documents, such an extensive compromise was not made out.