British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Glen International & Anor, R (on Application of) v Greenwich [2000] EWCA Civ 81 (17 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/81.html
Cite as: [2000] EWCA Civ 81
[New search] [Printable RTF version] [Help]
CASE NO: QBCOF 1999/0380/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH
DIVISION (MR JUSTICE HIDDEN)
ROYAL COURTS OF JUSTICE
STRND, LONDON WC2A 2LL
FRIDAY 17 MARCH 2000
LORD JUSTICE PILL
LORD JUSTICE MUMMERY
AND
SIR RONALD WATERHOUSE
__________________________
The Queen
-v-
Appellants
Respondents
_________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
_________________________
Mr Andrew Arden QC and Mr Christopher Baker (Instructed by the London Borough of Greenwich, SE18 6PW) appeared for the Appellants
Mr Richard Drabble QC and Mr Gregory Jones (Instructed by Bowling & Co, E15 1NG) appeared for the Respondents
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE PILL:
This is an appeal against a judgment of Mr Justice Hidden given on 23 June 1998 whereby he quashed decisions of the London Borough of Greenwich ("the Borough") rejecting the application of Glen International Ltd ("the first respondent") and Mrs Vijaya Radia ("the second respondent") for renovation grants for properties they owned. The first respondent's properties are at 22/22A Fairthorn Road, London, SE7, and 146 Herbert Road, London, SE7 and the second respondent's property is at 31 Gurdon Road, London, SE7. The case turns upon the construction of provisions in Part VIII of the Local Government and Housing Act 1989 ("the Act") which has been repealed since the relevant applications for grant were made. The Borough, who are the local housing authority under the Act, refused to approve what were claimed to be mandatory grants in that the relevant works were done to comply with notices under section 189 or section 190 of the Act. There is a criminal sanction for non-compliance with such notices.
The points now arising are such that the basic facts can, with the help of a case synopsis helpfully provided by Mr Arden QC, counsel for the Borough, be stated briefly. Notices under one or other of the above sections of the Act were served. They required works to be done to render the premises either fit for human habitation or because they were in a state of disrepair. Dates were given by which the work was to be completed. Applications for grant were made while the relevant provisions of the 1989 Act were still in force.
Points were taken by the Borough as to the validity of the applications. These included, in the case of the Herbert Road and Gurdon Road premises, claims that the estimates from two different contractors for the cost of carrying out the relevant works, said to be necessary by reason of section 102 of the Act, had not been provided. In the case of Fairthorn Road, the single point taken, permission to take it having been given by this court, is that the renovation grant is not payable because the relevant work had been completed before the application was made. The applications were formally rejected by letters dated 5 July 1996. Following a reconsideration, a further letter rejecting the Herbert Road and Gurdon Road applications was sent on 4 August 1997.
We were told by counsel that the provision for mandatory grants in the 1985 Act involved the payment of very substantial sums of money to landlords. Two strands of thought emerge from the now repealed provisions. The first is that grants should be paid to cover the cost of works done to render premises habitable or to put them in repair. The second is that to safeguard public funds proper procedures should be followed by applicants. The Borough accept the existence of the mandatory element in the statute but claim that the conduct of the respondents, in part by their agent, has been such that the mandatory grants are not payable. Insofar as is material, section 102 of the Act provides:
"(1) No grant shall be paid unless an application for it is made to the local housing authority concerned in accordance with the provisions of this Part and is approved by them.
(2) An application for a grant shall be in writing and shall specify the premises to which it relates and contain--
(a) particulars of the works in respect of which the grant is sought (in this Part referred to as `the relevant works');
(b) unless the local housing authority otherwise direct in any particular case, at least two estimates from different contractors for the cost of carrying out the relevant works;
(c) particulars of any preliminary or ancillary services and charges in respect of the cost of which the grant is also sought; and
(d) such other particulars as may be prescribed.
(3) ... .
(4) The Secretary of State may by regulations prescribe a form of application for a grant and an application for a grant to which any such regulations apply shall not be validly made unless it is in the prescribed form."
The Secretary of State has made regulations under section 102(4) and the prescribed application form was a somewhat elaborate document requiring that a substantial amount of information is given.
By virtue of section 101(1) grants are payable "towards the cost of works required". Preliminary conditions for the making of a grant are set out in sections 103 to 106. Certain dwellings and works are excluded from grant aid by provisions of section 107, which does not apply to applications the authority "are required to approve by virtue of section 113 below". Other restrictions appear in the following sections. It is conceded that the present applications, if they are applications within the meaning of the Act, are "landlords' applications" within the meaning of section 110(1).
The respondents claim that the Borough are under a duty to approve the applications by reason of the provisions of section 113. That provides insofar as is material:
"(1) ... a local housing authority shall approve an application falling within section 110(1) above (in this section referred to as a `landlord's application') if completion of the relevant works is necessary to comply with a notice or notices under one or more of the following provisions--
(a) section 189 of the Housing Act 1985 (repair notice requiring works to render premises fit for human habitation);
(b) section 190 of that Act (repair notice in respect of premises in state of disrepair but not unfit) and:
(c) ... ."
Section 115 of the Act provides for discretionary as distinct from mandatory approval of certain other applications for a grant. Section 116 provides that the applicant shall be notified, as soon as reasonably practicable, and, in any event, not later than six months after the date of the application concerned, whether the application is approved or refused. Sub-section (2) provides, inter alia, that where an authority decides to approve an application for a grant, they shall determine the amount of the expenses which in their opinion are properly to be incurred in the execution of the eligible works and the amount of the grant. There is also provision in the section for re-determining the estimated expenses and the amount of the grant in certain circumstances. Section 117 provides for the manner of payment of grants. By virtue of sub-section (3), payment is conditional upon "(a) the eligible works or the corresponding part of the works being executed to the satisfaction of the authority; and (b) the authority being provided with an acceptable invoice, demand or receipt for payment of the works ... in respect of which the grant or part of the grant is to be paid". Section 134 makes provision for the recalculation, withholding or repayment of grants in certain circumstances.
It is also necessary to refer to section 108 even though by its terms it does not apply to applications under section 113. Insofar as is material, the section provides:
"(1) Subject to sub-sections (2) and (3) below, a local housing authority may not approve an application for a grant if the relevant works have been commenced before the application is approved and shall serve a notice of refusal to that effect on the applicant.
(2) Sub-section (1) above does not apply to --
(a) ...
(b) an application which the local housing authority are required to approve by virtue of section 113 below.
(3) Where the relevant works have not been completed, the authority concerned may approve the application for a grant if they are satisfied that there were good reasons for beginning the works before the application was approved."
For present purposes, it is not necessary to set out in detail the issues of fact between the parties. In the case of Herbert Road, the Borough accept in their decision letter that "two estimates were submitted with the grant application". They contend however that both firms of contractors were run by and were under the control of a single individual and that the requirements of section 102(1) had not been satisfied. In a further letter of 4 August 1997, the Borough have raised other questions on the genuiness of the estimate. In the case of Gurdon Road, the Borough claim that no estimate was provided by the applicant, in spite of reminders. All that had been submitted was "an invoice for completed works, after the work had been done". The Borough accept that, in other cases, they have exercised the discretion apparent in section 102(2)(b) to dispense with two estimates but they were not prepared to exercise that discretion in these cases.
The reason for the Borough refusing to pay the renovation grants is set out in the letter of 4 August 1997:
"I do not accept your analysis of section 108 of the Act; [a reference to section 113 may also have been intended] nor that, in any event, that section can be relied upon to render valid an invalid application. Whatever the timing of the application, the authority is entitled to insist upon a valid application for grant assistance. Your contention would result in the position that an applicant could submit an application in any form he chose, failing to comply with any of the statutory requirements, and that the authority would nevertheless be bound to approve the application. I do not accept that this is so."
For the respondents, Mr Drabble QC submits that in purporting to insist on two estimates before, or at least during, the carrying out of the relevant work, the Borough have misconstrued the statutory scheme. That scheme envisages applications for mandatory grants consequent upon Housing Act notices being made after the works have been commenced and even completed. The Borough should ask itself whether the applicants have expended monies in carrying out repairs required by them under the Housing Act and, if so, whether the cost was reasonable. If satisfied on both issues, they are required to pay the renovation grant. It has been no part of the Borough's decision making process that the repairs have been unsatisfactory or otherwise not in accordance with the Housing Act notices.
Mr Arden submits that there is no application within the meaning of section 113 in the absence of compliance with section 102. Failing an exercise of discretion in the applicants' favour that section requires the application to contain "at least two estimates from different contractors". The requirement for the estimates is repeated in the regulations made under section 102(4). The word "estimate" is to be distinguished from the word "invoice" and contemplates a document prepared before the work is done. It is further submitted that the Borough were entitled to decline to exercise their discretion not to require two such estimates. Estimates give the local housing authority the opportunity to consider the reasonableness of the sum later claimed as the cost of the work. Moreover, a construction of the statute which permits claims to be made after, and even long after, the work is done deprives the authority of the opportunity to consider the quality and value of the work. That might require investigation while the work is in progress. The applicant should not be entitled to claim at a time of his choosing. In certain circumstances, the amount payable under a grant may depend upon the applicant's means at the relevant time.
Mr Arden relies upon the use of the present tense (the words "is necessary") in section 113(1). Works cannot be said to be necessary if they have already been done. The present and future tenses are also used, with respect to the work, where the authority receive, without having served a section 189 or section 190 notice, an application for a renovation grant under section 112. They may determine, for example, that "completion of the relevant works will cause the dwelling to be fit for human habitation". (Section 112(2)(b)).
For the respondents, Mr Drabble accepts that the word "estimate" in section 102(2)(b) does contemplate a document which looks to future work. He accepts that section 108(1) states that an authority cannot approve a grant if the relevant works have commenced before the application is approved. He points out however that the sub-section expressly does not apply to section 113 applications (section 108(2)(b)) and, moreover, it opens the door, in sub-section (3), to approving grants in discretionary cases when works have commenced. In such circumstances, an "estimate" will be inappropriate and the requirement for estimates cannot have been intended to be universal. The more general point is made that the mandatory character of grants where section 189 or section 190 notices have been served and compliance will, in the public interest, often be necessary within a short period, requires that an application under section 113 should not to be treated as invalid by reason of the lack of the estimates mentioned in section 102.
I substantially accept the submissions of Mr Drabble and hold that the judge came to the correct conclusion. The argument that the succeeding sections in Part VIII of the Act are predicated on an application which, at the outset, complies with the terms of section 102 is not without force but regard must be had to the plain intention in Part VIII to make the approval of certain grants mandatory. That intention appears in section 113 and in the exclusion of mandatory grants from the restrictive provisions in section 108 (and section 107). These are applications which the authority are "required to approve". Moreover, the fact that the discretion in section 102(2) to waive the estimates requirement may be exercised at a later stage runs counter to the suggestion that an application which does not contain estimates is inevitably invalid.
Once it is accepted, as in my judgment the statutory scheme requires it to be, that mandatory grants are payable by operation of the provisions in sections 113, 116 and 117, section 102 cannot be read so as to require that "no grant shall be paid" if estimates were not contained within the application, when made. That requirement is not universal. Safeguards for public funds appear in the provisions of section 116(2)(b) and section 117(3). I cannot hold that the inclusion of estimates, which by definition involve an assessment of future work, are a pre-condition to the operation of the subsequent sections. The discretion the authority has in section 102(2)(b) to dispense with estimates becomes, in the case of mandatory grants, an obligation if the purpose of the scheme is to be achieved. The application is to be treated as valid and the obligation in section 113 to approve it is not defeated on the ground that the prescribed form of application did not contain two estimates.
I do not accept the submission that the use of the present tense in section 113(1) (the words "is necessary"), and elsewhere, involve a finding that the application for a grant under that section must be made before the relevant works are complete. The sub-section refers to notices served under section 189 and section 190 of the Act. When those notices are served, the "relevant work is necessary" to comply with them and the use of the present tense is appropriate to recognise that. Its use in that context does not bear upon the timing of the grant application. The Fairthorn Road application was validly made.
In relation to Herbert Road and Gurdon Road, the judge stated that the Borough "fettered its discretion in failing to consider its power under the Act to waive the requirement for two estimates under section 102. [The Borough] wrongly considered itself bound by section 102 of the Act to conclude that no grant shall be paid unless at least two estimates from different contractors of the cost of carrying out the relevant works had been provided with the grant application. That was an error of law". I would go further in these two cases. In the circumstances, and for the reasons given, I would hold that the Borough had no discretion to refuse to approve the applications by reason of the absence of estimates contained in the applications under section 113, when made.
Nothing I have said should be taken to encourage late applications or applications lacking particulars. Late applicants can expect their claims for payment to be very carefully scrutinised under sections 116 and 117 of the Act. Moreover, a form of application might be so deficient in its contents as not to be an application within the meaning of section 113.
I would dismiss the appeal.
LORD JUSTICE MUMMERY:
I agree.
SIR RONALD WATERHOUSE:
I also agree.