England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)

		Royal Courts of Justice Strand London, WC2
		16 April 2003

1. LORD JUSTICE BUXTON: This appeal from a decision of His Honour Judge Marcus Edwards in the Brentford County Court concerns premises, as I will for the moment refer to them, at 5 Mount Avenue, Ealing in respect of which the local authority, Ealing Borough Council, the respondent to this appeal, has served various notices under Part XI of the Housing Act 1985.
2. The facts as to the nature of the building, said by the judge to be agreed facts, are set out at paragraphs 6 and 7 of his judgment which it is convenient to read. They are as follows:

"6. The original building was designed and constructed in the 1840s or 1850s as a dwelling house for a single family. It was and is a semi-detached property, comprising lower ground floor, ground floor, first floor, second floor, and attic.

7. The appellant is a qualified architect of 23 years' experience, who in the course of his career has been concerned in large construction projects and responsible for a number of high-profile developments. In 1990 he purchased No. 5 Mount Avenue with a view to developing it and then selling the building as a whole or by separate flats on long leases. He obtained full planning permission for the development, and in 1990/91 carried out the works. The flats comprise 11 self-contained flats, of which 6 flats are in the original building, 3 flats in a new side extension and 2 flats in the lower ground floor. The side extension with the 3 flats is structurally independent of the old building, in that it has structural walls on all sides and takes no support from the old building. Its external elevations are in keeping with those of the old building. However, the new structure does depend on the old building for access, which takes place through the front door and up the staircase of the old building. So a total of 9 units are accessed by the original entrance hallway and stairway. The remaining 2 units are comprised in the lower ground floor of the original building, extended at the rear. Each has a separate entrance. There is shared access to parking and the garden for all occupants."

3. The notices served by the local authority which give rise to these proceedings and to this appeal were served under Sections 352 and 372 of the Housing Act 1985. The Section 352 notice, in accordance with the terms of the section, requires the performance of works to render the premises fit for the number of inhabitants there to be found. The notice is extensive but it is summarised in its first schedule, which raises issues about facilities for the storage, cooking and the preparation of food, alleging that those were inadequate in the ways described; ventilation to parts of the property, equally described as inadequate; and means of escape from fire and other fire precautions, all said to be inadequate. It is not necessary further to particularise the details that were given.
4. Section 372 is concerned with works necessary to remedy neglectful management. Schedule 1 to the notice under that section sets out a series of respects in which it is alleged that the premises were not in accordance with regulations passed to implement the section. To summarise, the matters complained of included water supply and drainage, the repair of the common parts, the internal structure of the living accommodation, disrepair to windows and ventilation, an unsatisfactory fire escape route, accumulations of rubbish, lack of precautions for the safety of the residents and, possibly on a different level, the failure to display a notice in the premises (as required by Regulation 14) giving the name and address and way of contacting the manager of the premises.
5. Mr Stanley, the appellant, alleges that the extent of the works required by the local authority is not reasonable and necessary. That is a matter, as I understand it, yet to be determined. We are concerned, as was the judge, with a preliminary point. Section 372 applies to any house. Section 352 applies to houses in multiple occupation. Put shortly, it is the appellant's case that because of its arrangement and, more particularly, because of the division of the premises into self-contained units, 5 Mount Avenue is not a house for the purposes of this Act and by the same token is not a house in multiple occupation.
6. A house in multiple occupation is defined in Section 345 of the Housing Act 1985, a definition that extends to the whole of Part XI of the Act with which we are concerned. It reads as follows:

"(1) In this Part 'house in multiple occupation' means a house which is occupied by persons who do not form a single household.

(2) For the purposes of this section 'house', in the expression 'house in multiple occupation', includes any part of a building which -

(a) apart from this subsection would not be regarded as a house; and

(b) was originally constructed or subsequently adapted for occupation by a single household;

and any reference in this Part to a flat in multiple occupation is a reference to a part of the building which, whether by virtue of this subsection or without regard to it, constitutes a house in multiple occupation."

That section is in its present form because the original Section 345 of the 1985 Act was amended in 1989 by Part III of Schedule 9 to the Local Government Act 1989. In the 1985 Act what is now Section 345 (1) stood alone as a single section. The amendment was to add to it, without altering the original text, what is now Section 345 (2). That amendment plays a significant part in the argument for the appellant before this court, as I shall in due course describe.

7. The appellant's complaint about his property being found to be a house in multiple occupation under Section 345 was not only because that definition is the gateway to the application of various of the restrictive and controlling provisions in Part XI of the Housing Act 1985 (in our present case those to be found in Section 352); but also because it was, in the appellant's view in evidence that he put before the judge, bad for the valuation of the property as a whole. It is necessary to refer to this point because of an argument in respect of the European Convention on Human Rights, to which I shall come at the end of this judgment. The judge described that part of the case in paragraph 4 of his judgment in the following terms:

"The appellant is concerned that the premises should not be held to be an HMO because if they were it would materially reduce the value of the freehold, I think he said, by about £500,000, from their present value of about £1.7 million. The reason for that, he says (and I have not heard evidence on the point) is that the premises would or might be registered as being an HMO, and HMOs are put in a lower category by the market, namely the same as that for lodging houses, hostels, guest houses and the like, whereas what he developed was more up market, namely a block of flats for respectable professional tenants."

8. I have already referred to the overall nature of these premises. It is necessary to say a little more about the argument advanced on behalf of the appellant. The judge said in paragraphs 17 and 18:

"17 The appellant says that the correct description is no longer a 'house' but a block of flats. That is what the conversion was designed to achieve, and did achieve. Conversion is, he says, the proper word: what was once a house is no longer a house. It is a block of flats. On the facts of this case, I can see how the property can reasonably be described as a block of flats but I do not agree that it is no longer a house.

18 The conversion was obviously substantial, but the conversion, looked at as a whole, still leaves the building as a house."

In the next paragraphs of the judgment the judge, building upon what he had already said about the internal arrangement of the property, and more particularly the need to pass through it in order to obtain access to each individual flat, explained why it was that he reached the conclusion that 5 Mount Avenue is a house: not merely (I would emphasise) by scrutinising its external appearance, but on the basis of full knowledge of its internal construction and division.

9. The claim is that, on a proper understanding of the Act and its history, these premises, 5 Mount Avenue, are not a house at all, because of the internal division into a number of separate properties. As Mr Hyams, who argued the case for the appellant, put it, it is not a house, it is 11 houses, each flat to be regarded as a house.
10. In my judgement, there is no justification for such an approach, either in the wording of Section 345 or of any other part of the statute. Before I come to that part of the argument which, in the event, was the principal case put by Mr Hyams, it is necessary to confront authority in this court that, in my judgement, is plainly against the contention that the appellant seeks to put forward. That authority is Okereke v Brent London Borough Council [1967] 1 QB 42. That was a case where a house built originally for occupation for one family had been converted into separate self-contained dwellings. The arrangement was not identical to that of 5 Mount Avenue. It was that the basement and ground floor were each occupied by one family and the first floor was occupied by two or more families who, on that floor, shared bathroom, water closet and kitchen. The case was considered under what was then Section 15 (1) of the Housing Act 1961. Without setting that out in detail, that provision started by saying:

"If the condition of a house which, or a part of which, is let in lodgings, or which is occupied by members of more than one family, is, in the opinion of the local authority, ..... defective with respect to any of the following matters ..... "

and a series of matters are set out. That section was supported by or to be read alongside Section 21 (1) of the 1961 Act which provided as follows:

"Sections twelve to fifteen of this Act shall apply -

(a) to a building which is not a house but comprises separate dwellings, two or more of which do not have a sanitary convenience and personal washing facilities accessible only to those living in the dwelling ..... "

The importance of that provision and of the decision in Okereke upon it is that Section 15 of the 1961 Act was, in due course, codified in Section 352 of the 1985 Act, the section or one of the sections with which we are concerned in this case.

11. Section 21, which plays some part in the argument, was equally dealt with in the codifying statute by appearing in that statute as Section 352 (6), a provision in respect of which I shall again have to say something in due course.
12. It will have been observed that Section 15 related to "a house which is occupied by members of more than one family". However by Section 58 (1) of the Housing Act 1969 for that concept, of a house occupied by members of more than one family, was substituted the wording now to be found in Section 345 -

"occupied by persons who do not form a single household."

So, authority on the former expression in Section 15 (1) of the 1961 Act, as is to be found in Okereke, is by the same token authority on the latter expression now to be found in Section 345 of the 1985 Act.

13. Looking at the argument and the judgments of this court in Okereke, it becomes apparent - indeed it stands starkly out from the report - that the unsuccessful argument in Okereke was the same as the appellant's argument in this case: that is to say, that a building divided into self-contained dwellings cannot be a "house". It was further argued that that conclusion was supported by various provisions - at that time Section 21 of the 1961 Act - which extended provisions relating to houses to buildings which are not houses but which contain separate dwellings.
14. That that was the argument is apparent not only from the valuable report of the argument to be found in the Law Reports but also from the judgment of Lord Justice Davies, in particular at page 54G of the report where the Lord Justice said:

"Counsel for the respondent, however, if I understood his argument aright, while conceding that if a building had not been divided into self-contained dwellings section 15 would clearly apply to it, argued that the building as a whole is no longer a house but comprises three separate houses, namely the three parts into which it is divided, and submits that, whatever might have been the position if section 15 stood alone, that view is supported by a reference to the provisions of section 21."

Lord Justice Davies, it is important to note, made clear in the immediately following sentence of his judgment that he was going to start by examining Section 15 as if it stood alone; the same exercise, as it seems to me, as that which is imposed on the judge and on this court of scrutinising the meaning of Section 345 (1). The Lord Justice gave an unequivocal answer to that inquiry. At page 56F he said:

" ..... on a reading of section 15 taken by itself, it seems to me that the building in question was a 'house' within the meaning of the section."

Having considered authorities that might have been thought to point in a different direction, authorities not binding on that court or this, he concluded at page 57B:

"The conclusion, therefore, at which I would arrive at this stage is that the building with which this case is concerned was undoubtedly a house within the meaning of section 15."

When the Lord Justice turned to Section 21 (which, it will be recalled, had been relied on by the house owner in that case) he said at page 57G:

"It does not provide that a building which is a house within the meaning of section 15 shall in certain circumstances be deemed not to be such a house. What it does is to provide that a building which is not such a house shall in certain circumstances be treated as such a house, and for myself I am unable to see how a section which applies to 'a building which is not a house' can assist in any way what is or is not a house."

15. The same view was taken by Lord Justice Salmon. He found the argument advanced by the house owner in that case - that the provisions were inappropriate to be applied to premises such as those in question, that is to say, internally divided - an attractive one, and so said at page 62C. But having looked at the code which the 1961 Act introduced, which as we have seen is carried forward into the 1985 Act, he came to the clear conclusion that it would be wrong to exclude premises from the reach of Section 15 simply because they were internally self-divided, if otherwise they would be a house. On the argument with regard to Section 21, he entirely agreed with Lord Justice Davies. The view described by Lord Justice Davies as having been the case put before the court by the appellant was that taken by the County Court judge in Okereke, which was reversed by the Court of Appeal.
16. It is also relevant to note when looking at Okereke that the argument that the word "house" should be construed as not including premises which comprise separate dwellings was accepted by the Lord Justice who dissented in that appeal, Lord Justice Sellers at page 53F. I do not think it necessary to set that out, but he clearly accepted, differing from his brethren, that Section 15 did not apply to a house which was internally self-divided. That had to be dealt with, if at all, in Section 21.
17. In my respectful view the presence of that opinion on the part of Lord Justice Sellers, strongly persuasive on one view though it might be thought to be, underlines, because it is in a dissenting judgment, the general applicability of the conclusion reached by the majority of this court, and makes it absolutely clear that the issues with which we are confronted were fully canvassed before the Court of Appeal in Okereke and a distinct view was taken of them: distinct in a sense that is contrary to the case urged on us by the appellant. Okereke is relevant to our present task because, as I have said, Section 15 of the Housing Act 1961 which it interpreted is codified in Section 352 of the Housing Act 1985, which latter uses the concept of a house in multiple occupation.
18. Because the Housing Act 1985 is a codifying statute the expression "house in multiple occupation" means the same in Section 352 thereof as it did in the predecessor section, Section 15 of the Housing Act 1961 as interpreted in Okereke. Since Part XI of the Housing Act 1985 is to be read as a whole the expression must mean the same in every place it appears, and thus in that Part "house in multiple occupation" means the same in Section 345 as it does in Section 352 as interpreted in Okereke. Mr Hyams said that that argument had an element of the tail wagging the dog. The definition section was Section 345. It was sought to be explained by the meaning of a section which that definition section was intended to define. That categorisation, although attractive, is not correct. This argument is limited to saying that in a Part of an Act which uses common language, unless there are very strong indications to the contrary the same words must mean the same thing in all of that Part of the Act. That is the rule that has to be applied to the combination of Section 345 and Section 352.
19. Faced with the difficulty presented by Okereke, a difficulty that he acknowledged, Mr Hyams presented a bold argument in response, an argument that I think was perhaps more fully developed before us than it had been before the learned judge. On the assumption that Okereke binds this court, and binds it as to the meaning of Section 345 as it stood in the Housing Act 1985 in 1985, Mr Hyams argued that the meaning or reach of Section 345 had changed, or should be read as having been changed, in the light of the amendments of 1989, the amendments so far as Section 345 being the addition of Section 345 (2). After 1989, and in the Housing Act 1985 as then amended, a sub-divided house no longer could count as a house in multiple occupation, despite the contrary having been decided in Okereke.
20. As I understand it, there were two possible limbs to this argument: which, with respect to Mr Hyams, is of its nature not entirely easy to state. They were either that the extension of Section 345 to flats made the concept of a house in multiple occupation as a collection of flats redundant; or alternatively, that it would appear that purpose built blocks of flats were now excluded from the reach of Part XI in a way that they had not been in the past: and there was no logic in including a converted block of flats within the reach of the section but excluding a purpose built block of flats. That argument was supported by recourse to the history of Section 345 and the way in which Section 345 (2) came into being. As I shall shortly explain, I am not able to accept the conclusions that Mr Hyams draws from that history. I would also say in passing, though only in passing before embarking on that inquiry, that it is far from clear to me that the same considerations with regard to control and scrutiny of living accommodation by the public authorities apply in the case of a purpose built block of flats as they do in the case of a conversion such as we are concerned with. I do not need to resolve that question.
21. I set out what I conceive to be the reason for the amendment in 1989 and the scheme that was then produced. The addition of sub-section (2) to Section 345 appears to be a provision of a rationalising nature which sought to bring together, under the definition of "house in multiple occupation", a series of cases that in the 1985 Act in its original form, as codified, had been dealt with separately. No doubt that separate dealing was explained by the very fact that the 1985 Act is a codifying Act, with limited rationalisation of the sometimes different provisions that it dealt with. The previous scheme had been to apply the rules applying to the Section 345 definition of "house in multiple occupation" to various cases that were accepted not to be houses. Thus, Section 352 (6) applied the rules on fitness notices for a building which is not a house but which -

"comprises separate dwellings, two or more of which are occupied by persons who do not form a single household."

It will be recalled that Section 352 (6) was the codifying version of Section 21 of the 1961 Housing Act which we have seen discussed by this court in Okereke.

22. Section 374 of the 1985 Act, as originally drawn, was concerned with the application of the provisions of Sections 369 to 373 on management codes to buildings other than houses, Section 369 having started by saying:

"The Secretary of State may, with a view to providing a code for the management of houses in multiple occupation ..... [make regulations]."

Section 374 (sidelined, "application to buildings other than houses") provided for those management provisions relevant to houses in multiple occupation to be extended to three cases: (a) a building which is not a house but comprises separate dwellings, two or more of which are occupied by persons who do not form a single household; (b) a building which is not a house but comprises separate dwellings, two or more of which do not have sanitary convenience and personal washing facilities accessible only to those living in the dwelling; (c) a tenement block in which all or any of the flats are without one or more of the amenities. A tenement block was described as a building or part of a building which was constructed in the form of two or more flats: that is to say, a possibly old-fashioned way of describing what we have called in this case a purpose built block.

23. Section 374 was repealed, as was Section 352 (6), by the same provision (Part III of Schedule 9 to the Local Government Act 1989) that introduced Section 345 (2) into the 1985 Act. That was, as it seems to me, an attempt to rationalise the various overlapping provisions without going into them much in detail, not necessarily with total success.
24. For my part, I would be minded to agree with the contention advanced by Mr Hyams (though I emphasise that it is not necessary to my decision in this case) that Section 345 (2) does not extend to blocks of flats as such. That is because the block itself was not -

"originally constructed or subsequently adapted for occupation by a single household."

The reason for that provision is, I should emphasise, not to be found in the repeal of the provision about tenement blocks in the former Section 374 to which I have just referred. Contrary to Mr Hyams' submission, my clear view is that that provision - Section 374 - was repealed not to change the law but because it became, or was thought to have become, redundant when, by the application of the new Section 345 (2) to houses in multiple occupation, all of the individual flats became potentially subject to the management codes of Section 369 to 373.

25. I therefore do not accept the underlying premise of this argument, which is that in 1989 there were amendments making a significant change of policy. The basic policy so far as dealing with flats did not change. All that changed was that certain situations that had previously been addressed by applying rules relating to houses in multiple occupation to cases of non-houses were brought together in Section 345 (2), that extends the definition of "house in multiple occupation" to those cases. And even if that were not the case it would need a very great deal of persuasion to establish that Parliament had intended to change the meaning of Section 345 (1), not by altering the wording of that provision but by making a different provision in a further sub-section of that same section.
26. I am therefore satisfied that the intention and effect of Section 345 in its new form is, first, to leave in place the existing provision that a house in multiple occupation is anything that can be called a "house" which is occupied by persons who do not form a single household; and, secondly, to recognise as such houses in multiple occupation parts of any building that are not houses but which were originally constructed or adapted for occupation by a single household and which are now occupied by persons who do not live in a single household. Looked at in that way, even without the benefit of underlying history, the addition of sub-section (2) to the definition extends the definition of "house in multiple occupation" outside the core case of Section 345 (1). That process cannot be seen as impliedly limiting the extant meaning of Section 345, that extant meaning being the meaning that was discerned in Okereke.
27. Mr Hyams also sought to support his argument by referring to the provisions in respect of repair notices in Part VI of the 1989 Act. There is, in my judgement, no overlap between, and no help to be gained from, those provisions. They apply to premises that are unfit for human habitation. That is a quite separate issue in housing law from the provisions with which we are concerned in Part XI. It is not our case, because it is not suggested that 5 Mount Avenue or the flats within it are unfit for human habitation.
28. It is also important, and what I have just said demonstrates it, to remember that a codifying Act, such as the 1985 Act, deals with a wide range of issues and forms of social control which are properly separated by the draftsman by being contained in different Parts of the Act. Great caution has to be exercised before a conclusion about one Part can be drawn from another. In this case I am quite certain that the repair notice provisions add nothing to assist us.
29. On the arguments on statutory construction therefore and on the authority of Okereke, I am quite clear that this appeal must fail.
30. A further argument was advanced in respect of the European Convention on Human Rights and Article 1 of the First Protocol. It is fair to say that Mr Hyams did not vigorously pursue this. Nevertheless in deference to his written submissions I must say something briefly about it. There seem to be two different arguments: first of all, that there was objection to Section 345 itself in Convention terms; and, secondly, that the notice in this case was unjustified in Convention terms as being excessive or disproportionate. The judge properly considered those submissions and ruled upon them. It is convenient to set out what he said since part of the complaint on this appeal was originally that the judge had not engaged in the balancing consideration that the Convention jurisprudence requires. The judge said this at paragraph 38:

"(1) The appellant says that he is deprived of his possessions, because the value of his property is reduced if it is held to be an HMO. It is arguable that there is no deprivation, because what he built or developed was an HMO, and no more."

I would venture to interpose that that is perhaps not the strongest point in the judge's otherwise admirable exposition. I continue:

"But on the assumption that there was a deprivation, the terms of the provisos are 'except in the public interest' and 'control the use of property in accordance with the general interest'. There is no evidence before me that Part XI of the Housing Act 1985 is not in the public or general interest, and the evidence before me that it is, namely the terms of the statute itself and the subordinate legislation made under it, is overwhelming.

(2) There is no evidence before me that the control exercised by the State by means of the Statute is not proportionate or that a 'fair balance' has not been applied.

(3) I do not agree that interpreting the provisions of Part XI as applying to No 5 Mount Avenue would achieve little or nothing, or be disproportionate or unfair. The house was originally built for occupation for one household. It is now an extended and adapted house for occupation by eleven households. It is plainly a case where the stringent regime applicable to houses in multiple occupation ought to be applied and in my judgment are applied by Part XI of the 1985 Act and the appellant has no right under the Human Rights Act 1998 to be protected against it."

I would respectfully adopt those observations. There is a clear public interest in there being a control regime for premises such as the present. As I have already indicated, if that regime is exercised in a disproportionate or unreasonable way the owner can take proceedings, as the owner in this case has done. It is not simply an arbitrary or erratic means of control.

31. As to the disproportion of the present order, Mr Hyams contended that at least the provisions with regard to escape from fire were unnecessary because of other statutory provisions that addressed that requirement. I am not satisfied that the provisions do overlap, but in any event, as the recitation at the beginning of this judgment of the terms of the various notices indicates, they went much further than indicating concern solely on grounds of escape from fire. The short answer to this matter is that in matters of public health and control Convention jurisprudence recognises a wide discretionary area of judgement in the hands of the national authorities, not only the national legislators but also the administrative and judicial authorities. This is an area in which the judgement of the national State will, in my view, be highly regarded by Convention jurisprudence. That approach is to be found in English authority in the speech of Lord Hope in Kebilene [2000] 2 AC 326, in particular the observations at page 381 A to D. This statute and the rules that it incorporates have stood for many years in our law and are generally regarded as a valuable protection for citizens who find themselves in the particular circumstances of multiple occupation: a protection that is controlled by law, and which cannot be said to be inconsistent with the Convention.
32. For those reasons therefore, despite the assistance of Mr Hyams, I would dismiss this appeal.
33. LORD JUSTICE MANTELL: In the absence of authority I might have been sympathetic to Mr Hyams' reading of Section 345. However I am unpersuaded that we are not bound by Okereke or that Okereke can be distinguished. For the reasons given by my Lord, it seems to me that that authority puts the matter beyond doubt.
34. Accordingly, I agree that the appeal must be dismissed.
35. LORD JUSTICE KENNEDY: I agree with both judgments that have just been delivered.
Order: Appeal dismissed with the costs. Permission to appeal refused.