LEE v LEEDS CITY COUNCIL, Court of Appeal - Civil Division, January 21, 2002,  EWCA Civ 6
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Case No: B2/2000/3589B2/2001/2209Neutral Citation Number  EWCA Civ 06IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM LEEDS COUNTY COURT(His Honour Judge Milford QC)Royal Courts of JusticeStrand, London, WC2A 2LL21/01/02 Before : LORD JUSTICE CHADWICKLORD JUSTICE TUCKEYand SIR MURRAY STUART-SMITH- - - - - - - - - - - - - - - - - - - - -Between : RATCLIFFE & ORS Appellants - and - SANDWELL METROPOLITAN BOROUGH COUNCIL Respondents - - - - - - - - - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - - Mr Kim Lewison QC & Mr S Knafler (instructed by Ward Dewhurst, Birmingham) for the Appellants in Lee and Ratcliffe & ors in the first and second appealsMr Andrew Arden QC, Mr C Baker & Mr C Dodd (instructed by Leeds City Council) for the Respondents in the first appealMr Andrew Arden QC & Mr C Baker (instructed by Sandwell Metropolitan Borough Council) for the Respondents in the second appeal - - - - - - - - - - - - - - - - - - - -JudgmentAs Approved by the Court Crown Copyright © Lord Justice Chadwick : 1. These two appeals raise the familiar issue whether a local authority is under any, and if so what, obligation to a tenant or occupier of a dwelling house let as part of its housing stock in circumstances where the dwelling house is or has become unsuitable for occupation by reason of condensation, damp and mould caused by some defect in design. The appellants invite the Court to revisit that issue in the light of provisions contained in the Human Rights Act 1998. 2. The factual position in each of the present appeals is indistinguishable from that described by the Law Commission in the first paragraph of its report Landlord and Tenant: Responsibility for State and Condition of Property (1996) (Law Com No 238):"An unemployed council house tenant in Pontypridd found that his council house was virtually uninhabitable because of condensation. This was attributable to a defect in the design of the property. The tenant's furniture, carpets, curtains and decorations were ruined by the damp. Although the landlord was under an implied statutory obligation to repair the structure and exterior of the premises, it was not liable for the tenant's loss, nor could it be compelled to remedy the defect. This was because the design defect did not constitute in law a "disrepair" for which it was responsible under its implied obligation." The footnote to that paragraph identifies the facts described as those in Quick v Taff Ely Borough Council  QB 809 - a decision of this Court. The absence of any civil remedy in circumstances such as those described by the Law Commission had arisen through a combination of two factors. First, the statutory obligation to ensure that a house let for human habitation is fit for human habitation had come to have little or no application to local authority tenancies. The reason is that that obligation is tied to rent limits which have remained virtually unchanged since 1957. Second, it was held in the Quick case that the statutory obligation of a landlord to keep in repair the structure of a dwelling house did not extend to the rectification of design faults; unless the effect of the design fault was that the structure was out of repair. Fitness for human habitation 4. A statutory obligation to ensure that premises let for human habitation were fit for that purpose was first imposed, in respect of tenancies at low or modest rents, by section 12 of the Housing for the Working Classes Act 1885. The Act extended to certain unfurnished lettings a condition which, some eight years earlier, the courts had been ready to imply in relation to furnished lettings - see Wilson v Finch Hatton (1877) 2 ExD 336. The obligation, both at common law in relation to furnished lettings and under the statute in relation to unfurnished lettings, was, at first, confined to the condition of the house at the commencement of the letting. Section 12 of the 1885 Act was repealed and replaced by the Housing of the Working Classes Act 1890. The obligation was re-enacted, but with increased rent limits, by section 14 of the Housing, Town Planning &c Act, 1909; and was extended, by section 15(1) of that Act, to include an undertaking that the house should, during the tenancy, be kept by the landlord in all respects reasonably fit for human habitation. Those provisions were successively re-enacted in the Housing Acts of 1925, 1936 and 1957. They are now to be found in section 8(1) of the Landlord and Tenant Act 1985. The subsection is in these terms:"In a contract to which this section applies for the letting of a house for human habitation there is implied, notwithstanding any stipulation to the contrary -(a) a condition that the house is fit for human habitation at the commencement of the tenancy, and(b) an undertaking that the house will be kept by the landlord fit for human habitation during the tenancy."5. Section 10 of the 1985 Act sets out the nine matters to which regard is to be had in determining whether, for the purposes of the Act, a house is unfit for human habitation. Those matters include "freedom from damp" and "ventilation". A house is to be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of the nine matters set out "that it is not reasonably suitable for occupation in that condition".6. Between 1909 and 1957 the rent limits by reference to which the statutory obligation to ensure that the house was fit for human habitation was made applicable remained those fixed by the 1909 Act; with some adjustment as between urban and rural lettings before 1925. The upper limit was increased twofold, in the case of lettings after 6 July 1957, by section 6(1)(c) of the 1957 Act. The 1957 limits were retained when the section was re-enacted in the Landlord and Tenant Act 1985. The effect is that the rent limits are now far below the average rents for local authority housing - and even further below the average rents for comparable housing in the private sector - as the table at paragraph 4.12 of the Law Commission report demonstrates. But that must be taken to reflect the legislative intention at the time of the 1985 re-enactment. Some three years after that re-enactment, Lord Justice Dillon observed in McNerny v London Borough of Lambeth (1988) 21 HLR 188, at page 194, that: "the limits [set by the 1957 Act] . . . are far below the normal rents for a council house or flat . . . and Parliament has conspicuously refrained from up-dating the limits in the 1985 Landlord and Tenant Acts."In Issa v Hackney London Borough Council  1 WLR 956, at page 964F-G, Lord Justice Brooke described the statutory covenant to ensure that a dwelling house be fit for human habitation (although preserved in section 8(1) of the 1985 Act) - and the consequential value to the tenant's family of section 4(1) of the Defective Premises Act 1972 - as "completely dead letters". The landlord's obligation to repair7. The statutory obligation to repair the structure and exterior of a dwelling house held under a lease was first imposed on the landlord by section 32(1) of the Housing Act 1961. It is now found in section 11(1) of the Landlord and Tenant Act 1985. The subsection is in these terms:"In a lease to which this section applies . . . there is implied a covenant by the lessor-(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water." 8. The scope of the obligation to keep in repair the structure and exterior of the dwelling house, to be implied under paragraph (a) of the subsection, was considered by this Court in Quick v Taff Ely Borough Council  QB 809. It is important to keep in mind that, in this Court, the only relevant claim was a claim in respect of condensation - see, in the judgment of Lord Justice Dillon, at page 814F. The house was fitted with central heating by a warm air ducted system. The windows were single-glazed with metal frames set in wooden window surrounds; the lintels above the windows were not faced with insulating material - ibid, at page 814H. The condensation came about from the warm air of the environment in the rooms reaching the cold surfaces of the building - ibid, at page 815F. It is against that factual background that the Court addressed the question whether the landlord was required to do the work necessary to alleviate the condensation problem - which, on the evidence, required the window frames to be replaced, the lintels to be faced with insulating material and a new radiator system to be installed in place of the warm air ducted system. 9. Lord Justice Dillon identified the appellant's contention in these terms: "that anything defective or inherently inefficient for living in or ineffective to provide the conditions of ordinary habitation is in disrepair". He described that proposition as having "very far-reaching implications indeed". He said this, at page 817G-818E:"The covenant implied under section 32 of the Act of 1961 is an ordinary repairing covenant. It does not only apply to local authorities as landlords, and this court has held in Wainwright v Leeds City Council (1984) 270 EG 1289 that the fact that a landlord is a local authority, which is discharging a social purpose in providing housing for people who cannot afford it, does...
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