[Buy ICLR report:  QB 134]
[Buy ICLR report:  3 WLR 968]
||BAILII Citation Number:  EWCA Civ 2
Court of Appeal
B e f o r e :
Lord Justice NEILL and Lord Justice RALPH GIBSON
||BRISTOL CITY COUNCIL
David Fletcher (instructed by Julie Glynn, of Bristol, agent for Bristol City Council) appeared on behalf of the appellants; Declan O'Mahony (instructed by Cooke Painter & Co, of Bristol) represented the respondent.
- Giving the first judgment at the invitation of Neill LJ, RALPH GIBSON LJ said: This is an appeal by the defendants, Bristol City Council, from the decision of the assistant recorder, Miss Linda Sullivan, of July 6 1990 given at Bristol County Court, whereby the plaintiff, Mrs McAuley, recovered damages for personal injuries in the agreed sum of £ 4,500 with interest of £ 270.
- Mrs McAuley, then aged 20, broke her ankle on October 31 1984 when she fell in the back garden of the house where she lives with her husband as joint tenants of the council. The ground of liability of the council which the recorder held to have been proved was breach of the duty of care imposed by section 4 of the Defective Premises Act 1972.
- The council now appeal and contend that, upon the proper construction of the terms of the tenancy agreement and of the statutory provisions, they were under no relevant duty of care to the plaintiff. If they fail on that point they contend that, having regard to the course of the proceedings, they should not have been ordered to pay the plaintiff's costs.
- Mr and Mrs McAuley in January 1984 became tenants of 8 Hinchcliffe Road in Bristol, which is a house owned by the city council. Behind the house, there is a garden which rises steeply with two flights of steps and a landing between them, which run up the centre of the garden away from the house. Mr and Mrs McAuley discovered, on moving into the house, that a step at or near the top of the garden - it has been called step no 11 - was unstable: the step consisted of concrete set in the earth; it was not fixed to the next step; and it moved under a person's weight. Mr McAuley, according to the findings of the recorder, complained to the repairs clerk of the council at the West Town Lane housing office in March 1984 about the state of the step but his complaint was made in such a way that the clerk, Mr Moriarty, understood that the complaint was, in substance, about a 'garden path' and not a 'set of steps' and therefore not the responsibility of the council. Nothing, therefore, was then done by the council and, it seems, nothing was done by Mr and Mrs McAuley.
- On October 31 1984 Mrs McAuley was hanging out washing on a line at the top of the garden steps. She knew of the instability of the step. The recorder held that she was standing on step no 11, which rocked forward under her weight, so that she lost her footing and fell. The recorder rejected the defendants' allegations that, if the accident happened as Mrs McAuley described, she had been guilty of contributory negligence.
- Any liability of the council to the plaintiff must, as was recognised from the outset by the plaintiff's advisers, be based upon the terms of the tenancy agreement. The tenancy was a four-weekly tenancy. The plaintiff and her husband, as tenants, were given a tenant's handbook of some 34 pages which contained at p 31 the conditions of tenancy. The handbook also contained an explanation of the responsibilities of the council as landlord and the obligations of tenants with much useful advice and information. The handbook is, in my respectful opinion, an admirable document which demonstrates not only the care which the council have taken to discharge their obligations as a housing authority but also the desire of the council to carry those obligations out as well and as fully as possible.
- In addition to the usual terms as to notice, the payment of rent, user, transfer and subletting etc, the terms relevant to the issue in this appeal are as follows. Clause 6:
The tenant shall:
(a) Keep the premises, including gardens, in a clean and orderly condition, and shall pay to the Council the cost of any special cleansing rendered necessary by his failure to comply with this condition.
(b) Maintain the interior of the premises in a reasonable decorative condition. (The tenant is advised to consult officers of the Housing Department if he is in doubt as to the most suitable materials to use.)
(c) Give the Council's agents and workmen all reasonable facilities for entering upon the premises at all reasonable hours for any purpose which may from time to time be required by the Council.
(d) Pay to the Council the cost of making good all damage to the premises (other than that resulting from ordinary fair wear and tear) including broken windows, or the fixtures and fittings therein, and of clearing stoppages in drains due to carelessness.
- There was nothing in the conditions of tenancy with reference to repairs by either side save those set out above. In the handbook, under the heading 'Duties of the City Council', after reference to security of tenure, there appears on p 9:
Repairs - the Council undertakes to maintain the structure and exterior of the property in good repair, not including any internal decorations or repairs attributable to the tenant's misuse.
- Reference must be made to the course of the proceedings because of the appeal on costs. The action began by plaint on April 3 1987. The particulars of claim alleged that, by the tenancy agreement, the council undertook to keep the premises, including the concrete steps, in good repair or, in the alternative, that such a duty was owed at common law. The breach of duty alleged was failing to repair the step after notice of the defect given by Mr McAuley's complaint. The defendants disputed the alleged duties and the making of the complaint. In May 1987 the defendants asked for particulars of any implied term or statutory provision relied upon by the plaintiff. The answer, settled by counsel and dated September 10 1987 was to the effect that the term by which the council undertook to repair the premises, including the steps in the garden, was an express term, namely that at p 9 of the handbook which is set out above, and, in the alternative, that it was to be implied by operation of law.
- In April 1990 those advising the council, who were well aware of the possible relevance of section 4 of the Defective Premises Act 1972 to this case, tried again: a further request invited the plaintiff to state whether reliance was placed upon a term implied by statute and, if yes, to identify it. The reply, on May 25 1990, made no mention of the 1972 Act: it asserted that the term, ie as to the council's repairing obligation, was to be implied at common law or, in the alternative, pursuant to section 32 of the Housing Act 1961. The provisions of that section, headed 'Repairing obligations in short leases of dwelling-houses', are now contained in section 11 of the Landlord and Tenant Act 1985, which is a consolidation Act.
- At the trial there was an application for leave to amend the claim to add to the particulars the following new para 5A:
The concrete steps and path were part of the premises (within the meaning of section 4 of the Defective Premises Act 1972). Further, by virtue of clause 8(c) of the conditions of tenancy the defendants had a right to enter on to the premises to carry out maintenance or repair to the premises. The defendants owed the plaintiff a duty of care by virtue of section 4(1) and (4) of the 1972 Act to take reasonable steps to see that the premises were reasonably safe for the plaintiff. In breach of this duty the defendants failed to repair or maintain the said steps in spite of being warned of the dangerous conditions of the same.
The reference to clause 8(c) was to a print of the conditions of tenancy attached to the original offer of transfer of home made by the council to the plaintiff and her husband. It is the same clause as clause 6(c) in the handbook to which I have referred above.
- At the trial, after reference to numerous authorities including Barrett v Lounova (1982) Ltd  1 All ER 351*; Sleafer v Lambeth Borough Council  1 QB 43; Brown v Liverpool Corporation  3 All ER 1345; Duke of Westminster v Guild  QB 688† ; Hopwood v Cannock Chase District Council  1 WLR 373 and Liverpool City Council v Irwin  AC 239, counsel for the plaintiff acknowledged that the plaintiff could not rely upon section 32 of the 1961 Act. That concession was made, as I understand it, upon the basis that, under section 32, the obligation imposed upon the landlord is to keep in repair the structure and exterior of the dwelling-house, including drains, gutters and external pipes, and that that obligation could not be extended to a step in the back garden.
- It was submitted for the plaintiff that a contractual obligation to repair the premises let, including the garden step, should be implied in law. The recorder rejected that submission and the plaintiff does not by cross-notice seek to rely upon the submission in this court. It is to be noted that what was rejected was an implied obligation in the council to repair and not, by contrast, an implied right to repair.
- As to section 4 of the 1972 Act, upon which the recorder held that the plaintiff was entitled to succeed, I will, before stating the reasoning by which the recorder reached her conclusion, set out the relevant parts of the section.
- The section, which was enacted substantially in the terms of clause 4 of the draft Bill annexed to Report No 40 of the Law Commission, of December 1970, Civil Liability of Vendors and Lessors for Defective Premises, is headed 'Landlord's duty of care in virtue of obligation or right to repair premises demised' and provides:
(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.
(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.
(3) In this section 'relevant defect' means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises . . .
(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right . . . he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.
(5) For the purposes of this section obligations imposed or rights given by any enactment in virtue of a tenancy shall be treated as imposed or given by the tenancy.
- The words in subsection (3) dealing with 'the material time' have been omitted as nothing in this case turns upon them.
- It has not been disputed that the plaintiff, as a joint tenant, was a person to whom the duty under subsection (1) was owed, if that duty arose; and it has not been suggested that the state of the step constituted any failure by the plaintiff as joint tenant to comply with clause 6(c) as to keeping the garden in a clean and orderly condition.
- The learned recorder proceeded in her judgment by the following steps. Under subsection (4) the first question was whether clause 6(c) of the tenancy agreement gave to the council the right to enter the premises to carry out any description of maintenance or repair of the premises. As to the submission for the council that the words 'for any purpose . . . required by the council' in clause 6(c) meant that the council had the right only to enter for doing such repairs as the council were obliged to do under the tenancy agreement and for no other purposes, the recorder rejected the submission because, on the ordinary meaning of the words in subsection (4) and of clause 6(c), this tenancy agreement did give to the council the right to enter the premises to carry out any description of maintenance or repair of the premises.
- The words 'any description of maintenance or repair' were, in the recorder's view, apt to cover the maintenance and repair which the council were required to carry out in accordance with their statutory duty. The council were at all material times in the position to exercise the right of entry. The council were therefore under the duty of care imposed by subsection (1). It seems, therefore, that, in the view of the recorder, if the council had the right to enter and to carry out repairs of any description, ie under the section 32 obligation, then section 4(4) was satisfied in respect of the defect in the garden step although the obligation under section 32 did not extend, as the plaintiff had conceded, to that step.
- The recorder then proceeded to review the evidence and to find that the council were in breach of the duty so imposed. If there were such a duty, there is no appeal by the council as to the finding of breach of it.
- In support of the appeal Mr Fletcher has argued that the right of entry given by clause 6(c) cannot be held to extend to entry to repair the step which is not covered by any statutory obligation of the council; but, more cogently, he also argued that there is no ground for holding that the council had any right to carry out repairs to the garden, including the step, because there is no express right and no basis for implying any such right.
- The court was invited to apply a purposive construction: the purpose of section 4(4), it was said, was to protect the public in a situation in which a landlord may have conveyed the impression that he intends to repair the premises because he has reserved a right of entry for that purpose; but, on these facts, no such impression could be made by the wording of clause 6(c). It was urged upon the court that it would be unfortunate if the wording of a condition of this kind, which, it was said, is commonly to be found in council tenancy agreements, should be held to give rise to automatic statutory liability under the 1972 Act wider than the liability imposed upon the council by section 32 of the Housing Act 1961, now section 11 of the Landlord and Tenant Act 1985.
- Mr O'Mahony, for the plaintiff, submitted that the express right to enter was wide enough to give a right of entry to the premises as a whole including the garden and that the reasoning of the recorder
should be upheld: that is to say, since there was a right to enter to do some repairs the requirements of section 4(4) are satisfied. Further, it was argued that an implied right to enter and to do repairs to the garden, including the step, should be implied at law: see Mint v Good  1 KB 517. The council, in the circumstances of this case, should be held to have had the implied right to do any repairs which they wished to any part of the premises: see Smith v Bradford Metropolitan Council (1982) 44 P & CR 171.
- In answer to the submission based upon Smith v Bradford MC, Mr Fletcher relied upon the statement of principle in Woodfall's Landlord and Tenant, para 13.070:
The landlord has an implied right to enter for the purpose of complying with his own repairing obligations. Beyond this, and except in the cases . . . where there is a statutory right of entry, he has no right to enter his tenant's premises to repair them in the absence of an express term to that effect. This is so even though the breach by the tenant is clear; even though the landlord is himself liable to forfeiture under a superior lease; and even though the entry is by leave of sub-tenants. In any of these cases he commits a trespass which can be restrained by injunction. (Stocker v Planet Building Society (1878) 27 WR 877 CA; Regional Properties v City of London Real Property (1980) 257 EG 65, Oliver J).
- Mr Fletcher invited the court, in effect, upon that basis to hold that the decision in Smith v Bradford MC must either be held to be restricted to its special facts or to have been made per incuriam. We were not referred to any particular decisions with which the decision in Smith was said to be inconsistent.
- Before examining section 4 of the 1972 Act, and its application to the facts of this case, it must be noted that this case was argued below for the plaintiff and decided by the judge on the basis that, apart from section 4(4), any liability of the council for repair of the step must be found in the statutory obligations of the council. That approach was based upon the proposition that the words at p 9 of the handbook, which are set out above and which were not printed as part of the conditions of the tenancy on pp 31-33, were part of the 'following information [which] explains . . . the responsibilities of the council' and that therefore those words, namely '. . . the Council undertakes to maintain the structure and exterior of the property in good repair . . .', did not constitute a separate contractual promise, which required to be construed as such in its context, but were no more than a reference to the statutory obligation imposed by section 32 of the 1961 Act, namely 'to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)'. On that basis, the obligation was limited to the extent established by such decisions as Hopwood v Cannock Chase DC and would not extend to the garden step because the step was not part of the exterior of the dwelling-house even if it might be argued to be part of the 'exterior of the property'. In this court Mr O'Mahony accepted that position. I do not suggest that that approach was wrong. It seems to me to have every appearance of being right.
- Subsection (1) applies where the landlord is under an obligation to repair. A duty of care is imposed upon the landlord, assuming proof of knowledge or means of knowledge under subsection (2) in respect of a 'relevant defect', that is to say a defect which constitutes a failure to carry out the repairing obligation. Subsection (4) extends the basis of liability by treating the landlord as being under an obligation to repair when in fact he is not. The extension is made when the landlord is given a right to enter 'to carry out any description of maintenance or repair' but the extension of liability is not general. The landlord, when he is given a right to enter to carry out 'any description of maintenance or repair' is to be treated as if he were under an obligation to the tenant 'for that description of maintenance or repair', not all and any description of maintenance or repair.
- Thus, in this case, assuming that there was no actual obligation, contractual or statutory, to repair the garden step, the plaintiff, to succeed under section 4, must show that the defect in the garden step was a 'relevant defect', ie that it was a defect in the state of the premises which constituted a failure by the council to carry out repair of a description for which the council had a right to enter the premises.
- There is, I think, no warrant for a wide construction of the words of the section. They apply to all landlords, and not merely to local authorities, and can operate so as to impose a substantial burden upon a landlord in respect of premises under the immediate control of the tenant and in respect of which the landlord has assumed no contractual obligation.
- Clause 6(c) applies 'for any purpose which may from time to time be required by the Council': it does not say 'for any purpose for which the council may be required to enter'. I do not accept that the right of entry is limited to entry for the purpose of discharging the obligations of the council. The words are not, I think, perfectly drafted but the meaning seems to me to be clear, namely 'any purpose for which from time to time entry may be required by the council'. There are, of course, limits to the purposes for which the council may require entry under the clause. They can, in my judgment, require entry only for a purpose which the council may lawfully carry out, as between the tenant and the council. Examples are, of course, entry to perform an obligation of the council, for example repair of the exterior of the dwelling-house; and entry to carry out work expressly contemplated by clause 6(a), special cleansing rendered necessary by the tenant's failure to keep the premises and garden in a clean and orderly condition; and entry to make good all damage to the premises, not including damage resulting from ordinary fair wear and tear under clause 6(d). The words of clause 6(c) would clearly not, in my judgment, give the right to the council to enter to carry out works of alteration or improvement without the consent of the tenant, eg the replacement of an ill-tended lawn by a neat area of concrete.
The implied right to repair the steps in the garden
- On the evidence before the recorder, was it open to her to find that a right to repair the garden was to be implied in this tenancy agreement? There is no doubt that an obligation to carry out repair will readily cause to be implied a right to enter to do that repair: see Halsbury's Laws of England, vol 27, para 266: Edmonton Corporation v W M Knowles & Son Ltd (1961) 60 LGR 124, McNair J. Here there is an express right to enter and that right can be exercised in respect of any obligation to repair if any can be implied.
- It is necessary to consider on what principles the court is to determine whether a right to repair should be implied. There is, of course, an element of unreality in such an inquiry in a case of this nature. If a landlord wished to enter to carry out repairs to parts of the premises outside the 'exterior of the dwelling-house' it is highly unlikely that any tenant would refuse. That fact, I think, is not conclusive and is of little weight. The test is not whether the landlord could in probability have obtained permission or whether he has in the past been given permission, but whether, if the tenant were unwilling to permit the work to be done, the landlord could insist and, if need be, obtain an injunction. The possibility of refusal is not fanciful, not least where the court is concerned with the garden or backyard and the walls, fences, outbuildings there situated. A tenant might strongly object to the interference with the layout and planting in his garden likely to result from the execution of repairs which he might judge to be quite unnecessary for the proper enjoyment by him of his garden.
- There is no doubt of the principles applicable to the implying of an obligation to do repairs. They were considered and explained by the House of Lords in Liverpool City Council v Irwin  AC 239. The court does not have power to introduce into contracts a term merely upon the ground that the court thinks it reasonable. In defining the test, Lord Wilberforce at p 254F said:
. . . such obligation should be read into the contract as the nature of the contract itself implicitly requires, no more, no less: a test, in other words, of necessity.
- In that case the court was concerned with the letting by a council of a flat in a large block. With reference to the common parts retained in the occupation of the council, in respect of which there were implied easements in favour of the tenant, there was held to be an implied obligation upon the council as regards the maintenance of those common parts. Lord Wilberforce continued:
The relationship accepted by the corporation is that of landlord and tenant: the tenant accepts obligations, accordingly, in relation inter alia to the stairs, the lifts and the chutes. All these are not just facilities, or conveniences provided at discretion: they are essentials of the tenancy without which life in the dwellings, as a tenant, is not possible. To leave the landlord free of contractual obligation as regards these matters, and subject only to administrative or political pressure, is, in my opinion, inconsistent totally with the nature of this relationship. The subject-matter of the lease (high-rise blocks) and the relationship created by the tenancy demand, of their nature, some contractual obligation on the landlord.
- The Liverpool City Council case was distinguished in the Duke of Westminster v Guild  QB 688. The letting was of commercial premises. Slade LJ, giving the judgment of the court, referred to the distinction between two classes of case where the courts are prepared to imply terms in contracts: the first is where the court lays down a general rule of law that, as a legal incident of all contracts of a certain type (sale of goods, master and servant, landlord and tenant and so on), some provision is to be implied. The second class is where there is no question of laying down any prima facie rule applicable to all cases of a defined type, but the court is being asked in effect to rectify a particular contract by inserting in it a term which the parties have not expressed. In that second class the court must be able to say that the insertion of the term is necessary to give 'business efficacy' to the contract and that, if its absence had been pointed out, both parties, assuming them to have been reasonable men, would have agreed without hesitation to its insertion: see per Lord Cross of Chelsea in the Liverpool City Council case at p 258B. Slade LJ then pointed out that, in Liverpool City Council v Irwin, the majority of the House of Lords clearly regarded that case as falling within the first class of case described by Lord Cross: the term was implied as 'a legal incident of this kind of contract'. At p 699B Slade LJ continued:
The present case is in our judgment distinguishable from Liverpool City Council v Irwin  AC 239 in at least two material respects. First there is a formal lease which, on the face of it, represents the apparently complete bargain between the parties. Secondly, this present case is not in our opinion a type of landlord-tenant situation, which gives rise to special considerations, such as the case of a high-rise building in multiple occupation, where the essential means of access to the unit are retained in the landlord's occupation, thus making it appropriate for the court to imply any particular term as a legal incident of the contract.
- I see no reason why the principles by reference to which the court determines whether a right can be implied in favour of a landlord, which he may assert against the tenant, should differ from those applicable for implying an obligation to be imposed upon a landlord which the tenant may assert against the landlord. At this point in the examination of authority, I find it difficult to see how on ordinary principles the court could imply a right in favour of the council against the tenant to carry out repairs to the garden, whether as a legal incident of the kind of contract or as a term necessary to give business efficacy: the council could, it might be said, do whatever repairs they wished to do to the garden to the extent that the tenants give permission.
- Reliance, however, was placed on behalf of the plaintiff on the decision of this court in Mint v Good  1 KB 517. In that case the plaintiff was injured by the collapse of a wall which separated a highway, on which it abutted, from the forecourt of a house owned by the defendant. The house was let on a weekly tenancy. No right to enter was expressly reserved by the owner. The defective condition of the wall could have been ascertained with reasonable examination by a competent person but, as the owner had not expressly reserved the right to enter the premises, he was held at trial not liable at common law for the injuries caused by the nuisance. It was held by this court that a right to enter must be implied in the circumstances and that, therefore, the owner was liable for the injury caused by the nuisance. Somervell LJ, with whose judgment Birkett LJ agreed, heldght get relief against forfeiture, in which case the lease would be reinstated from the time of the forfeiture. So until there is judgment in the forfeiture action there is a period, which Mr Johnson called a twilight period and others have called a period, when the matter is in limbo.
- As regards that, Mr Johnson submits that this is the position:
- Although the status of the lease in the twilight period between issue and service of forfeiture proceedings, and determination by the court of the proceedings aalled upon to do repairs and both sides must have contemplated that the house would be kept in a reasonable and a habitable condition and that that would be done by the landlord. Third, in the case of such a tenancy, business efficacy
certainly will not be effected if the house is allowed to fall in disrepair and no one keeps it in reasonable condition; and it seems to me, therefore, necessary for business efficacy that the landlord should have the right which I have defined.
He continued at p 522:
This house, or, rather, the wall of its forecourt, adjoins a highway . . . Any house which . . . has something about it which may become a nuisance adjoining the highway, will render the occupier prima facie liable if the nuisance causes damage; and that gives the occupier another reason for desiring that the landlord should at any rate have the power to keep the place in proper repair and so prevent his becoming liable to passers-by for nuisance.
Denning LJ at p 527 said:
I cannot think that the liability of the owner to passers-by depends on the precise terms of the tenancy agreement between the owner and the tenant, that is to say, on whether he has expressly reserved a right to enter or not. It depends on the degree of control exercised by the owner, in law or in fact, for the purpose of repairs. If a landlord is liable when he reserves an express right to enter, he is also liable when he has an implied right; and even if he has no strict right, but has been given permission to enter whenever he asked, it should make no difference. The landlord has in practice taken the structural repairs on himself and should be responsible for any disrepair.
- It is to be noted that there was, in this case, no evidence of any risk of public nuisance arising from any defect in the garden. No such risk arose from the defect in the step. That defect, however, could cause injury to visitors to the premises as well as to the tenants and the tenants could, in theory at least, be liable to those visitors. Reliance has not been placed upon previous carrying out of repairs to the garden.
- In Smith (Arthur) v Bradford Metropolitan Council the question again arose under a local authority tenancy agreement. Condition 6 of a weekly tenancy of a council house provided:
The tenant shall . . . (ii) give the council officers agents, contractors and workmen reasonable facilities for inspecting the premises and their state of repair and for carrying out repairs.
Condition 9 defined 'premises' as 'the dwelling-house or flat let to the tenant and where the context so admits shall include any garage, outbuilding, garden or yard let to the tenant'. There was a concrete yard at the back of the house. The concrete surface of the yard needed repair and was in a potentially dangerous state. The plaintiff had made complaints. He fell because of the condition of the concrete yard and broke his leg. The judge held that the council was not 'caught' by the provisions of section 4(4) of the 1972 Act. The plaintiff appealed and two of the grounds must be noted: first, that the judge was wrong in law in construing condition 6(ii) of the conditions of tenancy so as to exclude therefrom the concrete yard of the premises and so as to find that the council had no right to enter the yard and there carry out repairs and, second, that, alternatively, the judge was wrong in law in not implying into the tenancy an implied right on the part of the council to enter the garden and concrete yard and there carry out repairs. Stephenson LJ, giving the first judgment, allowed the appeal on the ground that the express clause, namely condition 6(ii), properly construed, gave the council the right to enter and there do the repairs to the concrete yard. Donaldson LJ and Sir David Cairns agreed. Donaldson LJ, however, added (p 177):
. . . even if I am wrong in thinking that condition 6(ii) can and should be held . . . to include [the concrete yard], I would hold that there must be an implied right in the council to repair any part of their property which they wish to repair, and to enter the demised premises for that purpose.
Sir David Cairns also said:
. . . I am of opinion that the council would have the right to enter to repair any part of the garden if they chose, and accordingly that there would be an obligation on them within the provisions of section 4(4).
- For my part, I am unable to accept that the decision in Smith v Bradford MC can be regarded as a decision of this court that, in the case of a weekly letting by a local authority of a dwelling-house upon the sort of tenancy agreement there described, the local authority has an implied right to do any repairs which it wishes to carry out, whether as a term implied to give business efficacy to the agreement or as a 'legal incident of this kind of contract': see the passage in Duke of Westminster v Guild per Slade LJ cited above. In my judgment, their lordships are to be taken to have been expressing their view as to an alternative basis for implying a right to carry out repairs on the facts of that case.
- In imposing the obligations stated in section 4 of the 1972 Act, where there is no obligation to repair, whether contractual or statutory, Parliament required proof of a tenancy which 'expressly or impliedly gives the landlord the right to enter the premises to carry out any description of . . . repair'. If such a right is proved, the landlord is, if the other conditions are satisfied, to be treated as under an obligation to the tenant for that description of repair. Parliament thus legislated by reference to the common law. If the common law says that the right to repair is implied, the statute imposes the obligation. The provisions apply to any tenancy agreement. The fact that, for this purpose, it would suit the tenants very well to have implied against them a right in favour of the landlord enforceable against the tenants does not, in my judgment, enable the court to imply such a right in circumstances where it could not properly do so upon the relevant principles.
- The decision of this case seems to me to turn upon the correct application of the principles stated by this court in Mint v Good. The circumstances in this case are not the same. There is no question of public nuisance. This is a weekly tenancy but the express terms of it were stated in writing at the time when the house was offered to the plaintiff and her husband and were set out in the tenant's handbook. Those express terms listed matters which the tenant was required not to do and matters which he was required to do, but there was no list of the purposes for which the council might from time to time require entry to the premises under condition 6(c). There was, in short, no term or provision of the express conditions with which an implied right to do repairs to the step would be inconsistent.
- Next, applying the test of business efficacy, it can be argued that the tenancy agreement without the implied right to repair would work satisfactorily and that it is unreal to imply a right in favour of the council in order to secure a cause of action in favour of the tenant against the council. If the tenant should ask the landlord to do the repair and the landlord refuses, the tenant is made aware of the situation. If the landlord should express a willingness to do the repair, the tenant, no doubt, in most likely circumstances would be willing to permit the landlord to do any work to the garden and would not prevent it. If the landlord becomes aware of the need for repair of the garden and asks for permission to do the repair, but the tenant refuses, the tenant again is made aware of the need and any danger to visitors to the property would depend upon what action the tenant thereafter takes by way of repair or warning. Further, it is difficult to see that any apparent legislative purpose can affect the principles by which the court must proceed or the answer to be given in a particular case. It is common ground that, if the council had inserted into the tenancy agreement an express provision that the council should have no right to do repairs to the garden but would consider doing so if requested by the tenant, section 4 would not be applicable. There is no question of the tenant's having been misled, or of failing to take action effectively to wedge this step which she or her husband might otherwise have taken by reason of the terms of this tenancy.
- The decisive question in this case, therefore, is whether the court can properly hold that the council impliedly reserved a right against the tenant to carry out repairs to the garden. This court considered the grounds for implying into a lease a reservation in Sandom v Webb  1 Ch 808 in a case dealing with a very different sort of letting, namely of commercial premises, and the question arose with reference to advertising material on an exterior wall. Lord Evershed MR, in a passage cited by McNair J in Edmonton Corporation v Knowles Ltd, said at p 816:
If the court were satisfied that, in order to make the transaction between landlord and tenant sensible and effective according to its terms, they must have intended some particular right to be reserved to the landlord, it might be possible to imply an appropriate reservation.
- I would adopt and apply that approach in this case in the light of the decision in Mint v Good. After some hesitation, I have reached the conclusion that the necessary reservation should be implied in restricted terms. The defect in the step exposed the tenants and visitors to the premises to the risk of injury. In this case, as much as in Mint v Good, the basis of the agreement was that the premises would be kept in reasonable and habitable condition and that, apart from interior decorative work and work to keep the garden in a clean and orderly condition, the work would be done by the council. The council had expressly reserved the right to enter 'for any purpose for which from time to time entry may be required', if I have correctly construed the term, and the agreement did not expressly identify those purposes. If there should be a defect in the garden which exposed the tenants and lawful visitors to the premises to significant risk of injury, then I think that, to give business efficacy to the agreement, as Somervell LJ put it in Mint v Good, a right should be implied in the council to carry out repairs for the removal of that risk of injury. A reasonable tenant could not sensibly object to such a right. If the council became aware of a dangerous defect in the steps of a steep garden, as in this case, and asked the tenant for access to repair it, in the interest of all persons who might be expected to be affected by the defect, the court could, in my judgment, properly require the tenant to allow such access upon the basis of an implied right in the council to do the work. So limited, I would hold that the implied right to enter to do the necessary repair was proved and the appeal should be dismissed.
- As to the appeal on costs, I am unable to see that the learned recorder went wrong in the exercise of the court's discretion. The recorder was, I think, entitled to proceed upon the basis that the case would have been contested as it was contested even if a correctly pleaded case had been presented from the outset. For my part, I think that I would have wished to make a more carefully defined order for costs so as not to put upon the defendants the costs of some imperfect pleading and some avoidable interlocutory steps. Nevertheless, I think it is impossible to say that the recorder is shown to have been wrong in principle with reference to the order for costs which she made. I would dismiss that part of the appeal as well.
- Agreeing, NEILL LJ said: I agree that this appeal should be dismissed for the reasons given by Ralph Gibson LJ. I add a few words of my own because the appeal raises a question of some importance as to the construction and effect of section 4 of the Defective Premises Act 1972 ('the 1972 Act').
- Section 4(1) of the 1972 Act imposes a duty on a landlord where he is under an obligation to his tenant for the maintenance or repair of premises. Section 4(1) is in these terms:
Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.
- Section 4(2) states the circumstances in which the duty is owed. It is in these terms:
The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.
- The term 'relevant defect' is defined in section 4(3) as meaning:
a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises . . .
- It is now common ground that the city council were not under 'an obligation' to carry out repairs to the defective step at the end of the garden which was the cause of Mrs McAuley suffering her injuries. The sole question is whether the city council were liable by reason of the extension of their duty of care brought about by section 4(4) of the 1972 Act. Section 4(4) provides:
Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.
On the facts of the present case it seems clear:
(a) that the concluding words of section 4(4) do not apply because no obligation to repair the step was imposed on the tenant;
(b) that the tenancy did not give the landlord an express right to enter the premises to carry out the maintenance of or repair to the garden steps.
The crucial point is whether the landlord had an implied right to enter the premises to carry out such maintenance or repair.
- The tenancy agreement itself does not provide any solution to this question. Clause 6(c) of the agreement imposes on the tenant an obligation to 'give the Council's agents and workmen all reasonable facilities for entering upon the premises at all reasonable hours for any purpose which may from time to time be required by the Council', but these words cannot be construed so as to give the council the right to enter upon the premises for any purpose they like. On the other hand, clause 6(a) of the agreement is of some assistance as showing that the 'premises' includes the garden.
- Like Ralph Gibson LJ I find important guidance as to the rights of a landlord to enter on premises and to carry out repairs to remedy defects which may exist in premises of this kind in the decision of the Court of Appeal in Mint v Good  1 KB 517. In that case the plaintiff was injured by the collapse of a wall which separated a highway, on which it abutted, from the forecourt of a house owned by the defendant. The house was let on a weekly tenancy. It was held by the Court of Appeal that the principle that a landlord, who has expressly reserved the right to enter the demised premises and do repairs, is liable in nuisance for injuries caused by the defective state of the premises to a person passing along the highway on which they abut applies to cases where the landlord has impliedly reserved that right.
- For the purpose of the present case the importance of the decision lies in what was said by Somervell LJ as to the circumstances in which a right to enter to carry out repairs might be implied. In a passage in his judgment (which was later cited and explained by Morris LJ in Sleafer v Lambeth Borough Council  1 QB 43 at p 57) Somervell LJ said at p 521:
It seems to me that the same principle must apply if a landlord has impliedly reserved to himself the same right. I cannot see any principle by which a landlord should be in one position in the case of an express reservation, and in a different position in the case of an implied reservation. The question, therefore, would be whether, in the circumstances as stated, a right to enter on and view the premises and do necessary repairs is to be implied. I would have said that, in the absence of evidence which excluded it, there is no term which would be more easily and more necessarily implied by law in a tenancy of this kind than a right in the landlord to enter, or to re-enter, to examine the premises and to do necessary repairs. It must be in the contemplation of both parties to such a weekly tenancy that the tenant will not be called upon to do repairs. The Rent Restriction Acts have rather altered the position; but in the old days it would have been absurd for either side to contemplate that a man who was only a weekly tenant should be called upon to do repairs. Both sides, I think, must contemplate as the basis of the contract that the house will be kept in reasonable and habitable condition; that that will be done by the landlord and not by the tenant; and, although he does not bind himself to do so, that he will have the right to enter and look after his own property by doing repairs.
- In the present case we are concerned with a four-weekly tenancy. By clause 6 of the agreement the tenant is under an obligation to keep the premises, including the gardens, in a clean and orderly condition. He is also under an obligation to maintain the interior of the premises in a reasonable decorative condition. I do not find in the tenancy agreement, however, any provision which imposes on the tenant an obligation to carry out repairs. Indeed clause 6(d) appears to contemplate that it is the council which will carry out repairs even though in certain circumstances the cost of doing so can be recovered from the tenant. Clause 6(d) is in these terms:
[The tenant shall] pay to the Council the cost of making good all damage to the premises (other than that resulting from ordinary fair wear and tear) including broken windows, or the fixtures and fittings therein, and of clearing stoppages in drains due to carelessness.
- In my judgment, in order to give business efficacy to this tenancy agreement, the landlord had an implied right to enter the premises to carry out repairs to remedy any defects which might expose visitors to the premises (or the tenant himself) to the risk of injury.
- For my part I would not wish to extend this implied right beyond the right to enter and carry out repairs of defects which might cause injury. But that limited implied right is sufficient to dispose of the present appeal.
- Accordingly, I agree that this appeal on liability should be dismissed. I also agree with the decision of Ralph Gibson LJ on the question of costs.
The appeal was dismissed with costs; application for leave to appeal to the House of Lords refused.
The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.
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