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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jones v Cleanthi [2006] EWCA Civ 1712 (12 December 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1712.html Cite as: [2006] EWCA Civ 1712, [2007] WLR 1604, [2007] 3 All ER 841, [2007] 1 WLR 1604 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEENS BENCH DIVISION
BELL J
BN304462
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE JONATHAN PARKER
and
SIR PETER GIBSON
____________________
ELIZABETH JONES |
Appellant |
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- and - |
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CHRISTOS EMMANUEL CLEANTHI |
Respondent |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Timothy Fancourt QC and Mr Tom Weekes (instructed by Griffith Smith) for the Respondent
____________________
Crown Copyright ©
Lord Justice Jonathan Parker :
INTRODUCTION
THE 1985 ACT
"352 Power to require execution of works to render premises fit for a number of occupants
(1) Subject to section 365 the local housing authority may serve a notice under this section where, in the opinion of the authority, a house in multiple occupation fails to meet one or more of the requirements of paragraphs (a) to (e) of subsection (1A) and, having regard to the number of individuals or households or both for the time being accommodated on the premises, by reason of that failure the premises are not reasonably suitable for occupation by those individuals or households.
(1A) The requirements in respect of a house in multiple occupation referred to in subsection (1) are the following, that is to say
.
(d) subject to section 365, there are adequate means of escape from fire; and(e) there are adequate other fire precautions.
(2) . the notice shall specify the works which in the opinion of the authority are required for rendering the house reasonably suitable
(a) for occupation by the individuals and households for the time being accommodated there, or(b) for a smaller number of individuals or households and the number of individuals or households, or both, which, in the opinion of the authority, the house could reasonably accommodate if the works were carried out
but the notice shall not specify any works to any premises outside the house.
(2A) .
(3) The notice may be served
(a) on the person having control of the house, or(b) on the person managing the house;
and the authority shall inform any other person who is to their knowledge an owner, lessee, occupier or mortgagee of the house of the fact that the notice has been served
(4) The notice shall require the person on whom it is served to execute the words specified in the notice as follows, namely:
(a) to begin those works not later than a reasonable date ; and(b) to complete those works within such reasonable period as is so specified.
(5) .
(5A) A notice served under this section is a local land charge.
."
" that the condition of the premises did not justify the authority, having regard to the requirements set out in subsection (1A) of that section, in requiring the execution of the works specified in the notice".
"375 Carrying out of works by local housing authority
(1) If a notice under section 352 is not complied with, the local housing authority may themselves do the work required by the notice.(2) Compliance with a notice means beginning and completing the works specified in the notice (a) if no appeal is brought against the notice, not later than such date and within such period as is specified in the notice;(b) if an appeal is brought against the notice and is not withdrawn, not later than such date and within such period as may be fixed by the court hearing the appeal; and(c) if an appeal brought against the notice is withdrawn, not later than the twenty-first day after withdrawal of the appeal and within such period (beginning on the twenty-first day) as is specified in the notice.
."
"377 Powers of the court to facilitate execution of works, etc
(1) Where
(a) a person is required by a notice under section 352 to execute works and(b) another person having an estate or interest in the premises unreasonably refuses to give a consent required to enable the works to be executed,
the person required to execute the works may apply to the county court and the court may give the necessary consent in place of that other person.
(2) If a person, after receiving notice of the intended action
(a) being the occupier of premises, prevents the owner or his officers, agents, servants or workmen, from carrying into effect with respect to the premises any of the preceding provisions of this Part, or(b) being the owner or occupier of the premises, prevents an officer, agent, servant or workman of the local housing authority from so doing,
a magistrates' court may order him to permit to be done on the premises all things requisite for carrying into effect those provisions.
(3) A person who fails to comply with an order of the court under subsection (2) commits a summary offence and is liable on conviction to a fine not exceeding level 5 on the standard scale."
THE FACTS
"The building fronts Kings Road. On the ground floor there are two shops: the east shop and the west shop. Originally the east shop extended to the rear of the building. Entrance to the building is and has always been through a door in the middle of the frontage between the east and west shops. From the door, there is a hallway which runs through the building, or at least it did, until its blockage by the construction of the wall which is the subject of this dispute. The hall goes right through to the rear of the building. About half-way along the hallway is a narrow staircase and a lift-shaft which provides access to the 13 flats in the building on six floors. Beyond the lift there is a staircase into the basement of the building and beyond that a door into the rear area. To the right of this door is another door into a storeroom at the rear of the east shop. Originally, there was no access from the west shop into the common parts of the building, but there is now a door between the rear of the west shop and the corridor just before the rear door leading into the rear area. The rear area itself is very narrow and mostly taken up with a metal fire escape running from the top of the building. This had clearly been in place for many years and was certainly in place when Mrs Jones purchased the flat 10A and when the lease was granted. Mrs Jones exhibited a schedule setting out the planning history of the building. This shows that during the period no planning permission has been granted to open up any access between the rear of the west shop and the store behind the east shop ("the store"). Mrs Jones says that when she bought her flat in 1986 there was a wall between the west shop and the hallway and there was also a doorway which allowed access from the west shop into the hall and then into the store. She asserts, as appears to be the case, that no express planning permission was granted for this doorway but, as this happened many years ago, I am only concerned with whether the door existed. It also appears that the stairs into the basement were moved at some time long ago. Since the building of the wall which is the subject of this dispute in 1995, the panelling of the wall separating the west shop from the rear hallway has been removed, exposing the wooden beams, and the area of the hall between the store and the west shop has in practice been incorporated into the shop. Mr Burt gave evidence. He said that he could not remember when the panelling was removed, but thought it was probably within two years after 1995. He said that the hallway was not retail space, although goods for sale in the shop were clearly stored in it. ."
(1) "the use (in common with the Lessor and the owners and occupiers of other flats in the Building and all other persons who may now or hereafter become entitled thereto) of the communal refuse bins in [the rear area]"; and
(2) "[t]he right for the Lessee his servants and visitors to use in common with the Lessor the owners and occupiers of any other part of the Building and their visitors and all other persons who are now or may become entitled thereto such steps staircases halls paths forecourts landings and passages and the lift forming part of the Building as afford access to and egress from the Flat and the refuse bins".
"I am fully satisfied that Mrs Jones' actions have been taken pursuant to a genuine desire to stand up for her entitlement as lessee and that she has been provoked into doing this by Mr Burt, whose approach throughout has been to do as little as he could get away with towards complying with his obligations as lessor and has regarded Mrs Jones as a thorn in his side because she stands up for herself. I find that the criticism of Mrs Jones is unfair and does not reflect the genuineness and merit of her current claim, which I will judge on the evidence and law. The fact that she was cross-examined in this way does, however, reflect to an extent on the way that Mrs Jones' genuine concerns have been responded to both by Mr Burt and by the defendant."
MULTIPLE OCCUPATION FIT FOR NUMBER OF OCCUPANTS
To: Mr Derek John Charles Burt
of: 41 Kings Road, Brighton
1. You are the person having control of the house in multiple occupation known as 41 Kings Road, Brighton ("the house").
2. In the opinion of the Brighton Borough Council, the house fails to meet such of the requirements in section 352(1A) of the Housing Act 1985 as are set out in Schedule 1 to this notice and, having regard to the number of individuals and households for the time being accommodated there, by reason of that failure, the house is not reasonably suitable for occupation by those individuals or households.
3. In the opinion of the Council, the works specified in Schedule 2 to this notice will make the house reasonably suitable for occupation by the individuals or households for the time being accommodated there.
4. Under section 352(4) of the Act the council require you to carry out the works and to begin them not later than the 24th day of February 1995 and to complete them within the period of three months of that date.
SCHEDULE 1
Requirements in section 352(1A) of the Housing act 1985
which the house fails to meet
There are adequate means of escape in case of fire.
There are adequate other fire precautions"
"Separate the ground floor shop storage area from the staircase by fire resisting materials of at least one hour".
" a reasonable lessee such as Mrs Jones would not have known from the documentation that the access to the rear area was going to be blocked off",
and that the documents did not make this at all clear to the layman. Having examined the documentation, I can well understand why Judge Simpkiss reached that conclusion. That said, however, at no stage has it been alleged on behalf of Mrs Jones that the section 352 notice was other than valid and effective according to its terms.
"Nor did Mr Burt help matters. His letter to Mrs Jones and the other lessees of 4 November 1994, which I am satisfied enclosed the fire officer's specification but did not attach the plans, does not draw to their attention the fact that the easements granted to them under the lease would cease to be exercisable."
"11. Following the construction of the wall, the area between the wall and rear door was incorporated into the west shop. Mrs Jones gave up her flat in the autumn of 2002 and moved back at the beginning of 2003. Shortly after moving in, she asked Mr Burt about rubbish because the 13 flats in the building were small and rubbish collections happened weekly. The absence of anywhere to put the bags during the week had become a problem. Mrs Jones said that Mr Burt did not care what happened to the rubbish, and that was the impression that I got of him. As a result, bags tended to accumulate in the common parts, such as the hallways, of the building. Various attempts had been made to find a solution to this problem, and the failure to resolve it has led to Mrs Jones issuing these proceedings.
12. On 24th June 2003, Mr Burt granted a lease of the west shop to his daughter, Teresa Ann Walker. The term was for 15 years from 1st April 2003, at an annual rent of £10,000 but at no premium. The demise incorporates the whole of the hallway blocked off by the wall built in 1995. On 17th December 2003 the defendant was registered as freeholder of the building, subject to the lease of the various flats, including Mrs Jones' lease of flat 10A. When he became freeholder of the building is not at all clear. The defendant says that he became freeholder in November 2003. At that stage he was a lessee of three flats in the building, although he sub-let these and never occupied the building himself. He first became a leaseholder in July 1997. His purchase of the freehold was through the enfranchisement procedure and with the support of the majority of the leaseholders, including Mrs Jones. These proceedings were issued on 20th August 2003 against Mr Burt, and by order of 15th October 2003, Mr Cleanthi was substituted as a defendant. The transfer has never been produced and I am not told why he was substituted before the date when he says he became the freeholder. However, no one has suggested that anything turns in this matter.
13. Mr Cleanthi was asked in cross-examination about its purchase. He said that he knew about Mrs Jones' litigation and that she was claiming that the easement continued. He also said that he was well aware of the terms of the leases, being a lessee himself. He also took the view that he would be able to charge the lessees for any costs of this case under the service charge. That issue is not for decision by me, but I would be surprised if he was able to do this. He further says that he has no indemnity from Mr Burt and that he decided to purchase the freehold as it was. He could not remember if he had had any legal advice."
THE PLEADINGS IN THE ACTION
EXPERT EVIDENCE
"2.7 I am also required by the instructing parties to give an opinion as to whether replacement of the said wall by a door and the reinstatement of [the rear area] for the storage of refuse would, for the relevant purposes of [the 1985 Act] and any other material provisions or regulations, mean that the property would not have adequate means of fire escape or adequate other fire precautions. On this matter it is less possible to be unequivocal.
2.8 However, it is possible to assert that those proposed measures would, in practical terms, reduce the integrity of the fire separation between the retail premises and the residential premises, since the reliability of a door to resist the passage of fire and smoke is less than that of a solid wall of equivalent fire resistance. Moreover, the storage of refuse bins on the escape route from the base of the external fire escape stairway to a place of safety would create a hazard as a result of their potential for ignition and the obstruction that they could create.
2.9 It can be further asserted that, in consequence of the above, the measures on which I am asked to advise would conflict with recognized guidance on fire precautions in houses in multiple occupation, conflict with two recognized principles of fire safety and would result in a lowering of the standard of fire precautions."
"6.6 Ultimately, of course, compliance with legislation is a matter on which only the courts can decide. However, on balance, given the two, quite distinct, aspects in which fire precautions would be reduced, at least to some extent, it is my opinion that the measures to which my instructions refer for the purpose of reinstatement of the [rear area] would result in fire precautions that would be inadequate for the protection of the occupants of 41 Kings Road and that are required under section 352 of the [1985 Act]."
THE JUDGMENT OF JUDGE SIMPKISS
"24. This leaves the question whether the s.352 notice put the lessor under a statutory obligation to build the wall, thereby making it inevitable that the easement of access would be obstructed absolutely. In my judgement, having regard to Mr Todd's opinion as set out above, it did. I therefore hold that the easement of access from the hallway to the rear area has been extinguished.
25. Mr Darton also argued that the statutory framework may have provided for a notice to be served on Mr Burt as lessor and managing agent, but it did not give him power to execute the works if it was outwith his power to do so. The remedy for Mr Burt in this situation was to appeal the notice on the ground that he could not carry out the works because to do so would interfere with the easement. This would lead to notice being served on the lessees, who could then argue whether there was an alternative, I would have more sympathy with this argument if the works required access to Mrs Jones' flat, of which the lessees had exclusive possession, but in any case that would not be consistent with the Budd Scott v Daniel decision. The works required in the present case did not involve entering the demised premises; they merely interfered with an easement."
"26. Having regard to my decision above, it is not necessary for me to consider the other issues of law raised in this case. If the easement had not been extinguished, then a question would have arisen whether Mrs Jones could obtain an injunction reinstating it. There is a problem with this because to remove the wall would affect Mrs Walker's lease of the west shop. Mrs Walker is not a party, although this point was raised in the defence and has been raised since. Mr Darton accepted in his final submissions that at this stage he was now only asking for a declaration that the rights existed and had been unlawfully interfered with. Nor could I have made any findings about Mrs Walker's knowledge of the easement without her being a party. She may have been able to advance a number of arguments in her defence. It would not have been appropriate for me to make any order affecting her, even subject to her having a right to reply absent her being a party."
THE JUDGMENT OF BELL J ON THE FIRST APPEAL
"49. Having considered all Mr Darton's arguments, it seems to me to be important to keep in mind that there was no original contract between Mrs Jones on the one hand and Mr Cleanthi, or for that matter Mr Burt, on the other. So there is no question, in any event, of Mr Burt's action, or failure to act by appealing, frustrating a contract he had made, and, even more so, there is no question of Mr Cleanthi frustrating a contract he had made. If there has been an obligation upon Mr Cleanthi at all at the time when he was substituted as defendant to Mrs Jones' claim and since then, it must be because the obligation to allow access to refuse bins in the rear area was and is a burden which runs with the reversion and affects the assign of the reversion, namely Mr Cleanthi, for the benefit of the assign of the lease of Flat 10A, namely Mrs Jones: see, for instance, Manchester, Sheffield and Lincolnshire Railway Company v. Anderson [1898] 2 Ch.394, per Chitty L.J. at page 402.
50. In this respect the obligation under the lease is, potentially at least, different from the public right of way or ancient lights in the cases of Yarmouth Corporation and [Emsley v. North Eastern Railway Co [1896] 1 Ch 418]. Those rights arose by what I might describe as "usage", and so it is easy to understand how they might be extinguished by work done under statutory powers or in compliance with a statutory duty, which is inconsistent with the continuance or survival of the right. It is not so easy to see why a covenant which runs with the land is necessarily extinguished simply because it is presently impossible to comply with the covenant because of work which the landlord for the time being was obliged by statute to effect, and because of the present state of the premises as a result of the work, in this case the building of the wall. In such circumstances, the lack of current practical use of the easement may be a far cry from extinguishment, and the fair and sensible test seems to me to be whether there is no longer any practical possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the manner contemplated by the grant. The test of whether that has occurred must be a question of fact and degree in the particular circumstances of each case. This approach is supported by Huckvale and anor. v. Aegean Hotels Ltd (1989) 58 P. & C.R. 163, and particularly Nourse L.J. at pages 168 and 170, and Chitty on Contracts (29th Edn) Vol.1, paragraphs 23-053.
51. In the circumstances of this case, in my judgment, there is no longer any practical possibility of the easement in question benefiting Flat 10A. It is true that nearly seventy-four years remain on the lease of the flat; and that the wall which obstructs the use of the easement and the associated alterations to the ground floor of the house are but ten years old, and that the lease of the enlarged west shop to Mrs Walker has less than twelve years to run. However, it seems to me that there is no ground to suppose that, now the alterations have been made, they will ever be reversed to allow what was always the limited benefit of lessees of the flats depositing their rubbish at the rear of the property.
52. In all these circumstances and for all these reasons I hold that the easement depending upon the covenant in Mrs Jones' lease has been extinguished, and Mrs Jones' appeal must, therefore, be dismissed."
MRS JONES' GROUNDS OF APPEAL
THE ARGUMENTS ON THIS APPEAL
The arguments for Mrs Jones
The arguments for Mr Cleanthi
CONCLUSIONS
" a statutory obligation to carry out works necessarily involves a statutory power to do them."
"It has been agreed that I shall try in the first place this question: Assuming the right asserted by the Defendants to have existed before the extraordinary provisions were passed under which the Plaintiffs claim, does that right still exist? In other words, has the right been taken away by the statutory powers conferred upon the Plaintiffs. I am of opinion that it has been so taken away.
The result of the construction of the pier was this, that, whereas persons had been in the habit of getting from the sea-wall at the end of Bank Street on to the shingle, there was now to be placed, on the very space which every person so doing had to pass, a permanent structure of planks through which persons could not pass. There was a physical impossibility in the persons who had exercised the alleged right continuing to exercise it in the manner in which they had previously done. The exercise of the right and the existence of the pier were absolutely inconsistent."
"One or two arguments have been adduced which I desire to notice. In the first place, it is said that an Act of Parliament cannot take away a public right of way except by express words. For that proposition no authority has been cited, and, in my opinion, it is not maintainable. I think that, when the Legislature clearly and distinctly authorize the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right."
" whether there is no longer any practical possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the manner contemplated by the grant".
"Expropriation cannot take place by implication or through intention: it is authorised or it is not authorised. And to see which, it is necessary to construe the authority."
RESULT
Sir Peter Gibson:
Lord Justice Pill: