England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Thursday, 9th May 2002

1. MR JUSTICE JACKSON: The claimant in these proceedings is the landlord and the defendant is the tenant of part of 5 Moulsham Drive, Chelmsford, Essex ("the property"). The defendant's tenancy is now a statutory tenancy governed by the Rent Act 1977. The defendant is tenant of a ground floor room at the property. He has shared use of the ground floor kitchen and lavatory and of the first floor bathroom. The claimant and his wife occupy the remainder of the property.
2. By a re-amended particulars of claim dated 30th May 2001, the claimant sought possession of the premises pursuant to Section 98 of the Rent Act 1977. Section 98 provides:

"Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either

(a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or ..... "

3. The proposed alternative accommodation was a self-contained flat containing a kitchen and lavatory within the ground floor of the property. Building works were necessary in order to construct that.
4. After a contested hearing in October 2001 His Honour Judge Brandt in the Colchester County Court decided that there should be a declaration that the claimant's proposals for the provision of alternative accommodation are reasonable and that the premises proposed for occupation are reasonable having reagrd to Section 98 of the Rent Act 1977:

"(2) The landlord do no later than Friday 2 November 2001 serve upon the defendant detailed plans showing how the kitchen inter alia kitchen and toilet facilities are to be accommodated within the alternative accommodation.

(3) The defendant and landlord's architect do meet on the site no later than 9 November 2001 for the purpose of discussing and agreeing the precise details of the work to be done.

(4) In default of agreement both parties do have liberty to apply to the court for resolution of the areas of disagreement.

(5) In the event of disagreement, and upon completion of the works, the landlord do grant to the tenant and the tenant do accept from the landlord the grant of a new statutory tenancy. The rent to be set by the rent officer of the premises as by then constructed."

5. Disagreement followed as to the implementation of that order.
6. There was a further hearing in the Colchester County Court in January 2002. At the conclusion of that further hearing His Honour Judge Brandt gave a further judgment and made the following order:

"1. The claimant's proposal contained in the attached plan ..... as varied in the claimant's solicitor's letter of 12 November 2001 to be deemed to be acceptable alternative accommodation in accordance with Section 28 of the Rent Act 1977.

2. That the defendant do provide the claimant and/or the claimant's servants, agents and contractors with such access as the claimant may require in order to execute the work required for the alternative accommodation."

7. The claimant seeks to appeal against that order on two grounds: "The court was wrong to make the order at paragraph 2. The appellant is a statutory tenant. Section 116 (2) of the 1977 Rent Act states that the condition specified of subsection (3) has to be satisfied before a court may make such an order. As this condition was not satisfied the court should not have made the order.
8. The statement at paragraph 1 was wrong because the proposed accommodation would not be fit for human habitation within the meaning of the 1985 Housing Act."
9. Section 116 of the Rent Act 1977, referred to in the grounds of appeal, includes the following provisions:

"(1) This section applies where a dwelling-house is subject to a statutory tenancy and the landlord wishes to carry out works which cannot be carried out without the consent of the tenant.

(2) If the tenant is unwilling to give his consent, then, if the condition specified in subsection (3) below is satisfied, the county court may, on the application of the landlord, make an order empowering him to enter and carry out the works.

(3) The condition is -

(a) that the works were specified in an application for a renovation grant, a common parts grant, a disabled facilities grant or an HMO grant under chapter 1 of Part I of the Housing Grants Construction and Regeneration Act 1996 and the application has been approved."

10. In my view, it is properly arguable that the judge did not have power to make paragraph 2 of the order dated 15th January 2002. I come to this conclusion for four reasons:

(1) There did not exist in January 2002 any suitable alternative accommodation such as would have enabled the judge to make an order for possession pursuant to Section 98 (1) of the Rent Act 1977.

(2) The tenant did not consent to access being given for the purpose of carrying out building works.

(3) The condition set out in Section 116 (3) of the Rent Act 1977 was not satisfied.

(4) I can find no statutory or common law basis for the court's power to order the defendant to grant access to the landlord, his agents andhis contractors, in order to carry out the proposed building works.

11. I do not say that necessarily the defendant will succeed in his appeal. Nevertheless there are serious issues to be argued, and I would grant permission to appeal on the first of the two grounds stated in the notice of appeal.
12. Mr Adam said in his submissions this morning that, if he obtained leave to appeal on the first ground, he did not wish to pursue the second ground. In my view, that was a sensible concession.
13. In the circumstances of this case I would grant permission to appeal on the first ground only contained in the notice of appeal.
Order: Application allowed