Dame Margaret Hungerford Charity Trustees v Beazeley

Landlord and tenant — Rent Act 1977 — Suitable alternative accommodation — Whether reasonable to grant order for possession where dwelling-house is Grade I listed building The plaintiff landlords were the trustees of a charity and the freehold owners of ancient property at Corsham, Wiltshire, consisting of the Warden’s House and school room, six almshouses and the Parish Room building. By a lease dated September 15 1980 the trustees for the charity demised to the defendant tenant for a term of five years from December 1 1978 the Warden’s House, the school room and the long attic above the almshouses, together with the garden. Since the expiry of the contractual term on November 30 1983, the defendant has had a statutory tenancy protected by the Rent Act 1977. For four years the landlords have been desirous of promoting an overall scheme for the reconstruction of the whole property, but they could not plan such a scheme, nor obtain the necessary consents and funding, without first obtaining possession of the parts of it occupied by the tenant and her family. In proceedings brought by the landlords for possession, the tenant contended that, even if suitable alternative accommodation were available, it would not be reasonable to make the possession order sought and counterclaimed that, in breach of the obligations imposed on them by section 11 of the Landlord and Tenant Act 1985, the landlords had failed to keep the structure and exterior, in particular the roof, drains, gutters and external pipes, in repair. Judge Boothman found that it was reasonable to make an order for possession and make such an order on April 4 1993. The tenant appealed. Held: The appeal was dismissed. The court would not interfere with the finding of the trial judge that the landlords had repaired the roof to a standard necessary to make the house reasonably fit for the occupation of the tenant of the class which would be likely to take it. The judge’s finding of fact that the landlords had a scheme for the properties to enable repairs to be carried out was upheld. The judge was entitled to find that it was reasonable to make the order: he had taken into account the annual income of the trust, which was no more than £2,500, and the evidence that the cost of repairing the property was some £100,000, together with English Heritage’s offer to provide half the cost. It was clear that the judge had considered the factors put forward on behalf of the tenant in deciding that it was reasonable to make an order for possession. The trial judge had weighed the hardships and the detriment that an order for possession would impose on the tenant and her family, including the fact that the alternative suitable accommodation was substantially smaller and, in other ways, inferior to the Warden’s House, on the one hand, and the desirability, if not necessity, of major expenditure on the whole building if this historically and architecturally important structure was to survive for the use and enjoyment of the people living in the area. The following cases are referred to in this report. Murray v Birmingham City Council (1987) 20 HLR 39; [1987] 2 EGLR 53; 283 EG 962, CA Proudfoot v Hart (1890) 25 QBD 42 This is an appeal from a decision of Judge Boothman who, in Chippenham County Court, made an order for possession on April 4 1993 in proceedings claiming possession brought by the respondents, the trustees of the Dame Margaret Hungerford Charity, against the appellant, Patricia Anne Beazeley. Leslie Blohm (instructed by Withy King & Lee, of Bath) appeared for the appellant; Robert Thomas (instructed by Lawrence Tucketts) represented the respondents. Giving the first judgment, NOURSE LJ said: The principal question on this appeal is whether it was reasonable for the judge in the court below to make an order for possession of a dwellinghouse subject to a protected tenancy in a case where, on a certificate of the local housing authority, the court was taken to be satisfied that suitable alternative accommodation would be available for the tenant when the order took effect: see the Rent Act 1977, section 98(1)(a) and Schedule 15, Part IV, para 3. The case gives rise to no difficult questions of law or fact. It is unusual only in that the dwelling-house is a Grade I listed building dating back to 1668. The plaintiffs are the trustees of a charity known as the Dame Margaret Hungerford Charity and, as such, the freehold owners of ancient property at Corsham in Wiltshire, consisting of the Warden’s House and school room, six almshouses and the Parish Room Building. There is a long attic above the almshouses and outside there is a garden. By a lease dated September 15 1980 and made between the Official Custodian of Charities, in whom the property is vested, of the first part, the then trustees of the charity of the second part and the defendant Patricia Anne Beazeley of the third part, the trustees in the name and on behalf of the official custodian demised to the defendant for a term of five years from December 1 1978 the Warden’s House, the school room and the long attic above the almshouses, together with the garden. The defendant, her husband and their two daughters, now adult, went to live there in 1978. They have continued to live there ever since, protected, since the expiry of the contractual term on November 30 1983, by the provisions of the 1977 Act. The accommodation, which the judge in the court below thought was far more than a family of that size would normally need, consists of some 17 rooms. The lease contained a covenant by the plaintiffs to execute such repairs as were by statute required to be executed by them. It is common ground that the effect of that covenant was to impose on the plaintiffs the obligations imposed on lessors by what is now section 11 of the Landlord and Tenant Act 1985 and that those obligations continue by virtue of the 1977 Act. As might have been expected with a building of this antiquity, its state of repair has from time to time given rise to concern. The present144 dispute is mainly concerned with the state of the roof, about which the defendant has made many complaints to the plaintiffs in recent years. Shortly stated, the plaintiffs’ case is that for the past four years or so they have been desirous of promoting an overall scheme for the reconstruction of the whole property and that they cannot plan such a scheme, nor obtain the necessary consents and funding, without first obtaining possession of the parts of it occupied by the defendant and her family. They are supported by the local housing authority, North Wiltshire District Council, who see the reconstruction as a means of providing additional small units of accommodation in the Corsham area. The defendant’s case, on the other hand, is that the proposed scheme is, as the judge recorded it, a ‘pie in the sky’; that there are too many planning hurdles to overcome; that English Heritage will not consent; that the proposals are too vague; and that there is no likelihood that the plaintiffs will be able to raise the necessary funds. She says that the only course which the plaintiffs can reasonably take is to renew the roof with the help of English Heritage, who have offered to bear half the cost of that. The almshouses can be left as they are, with modest renovations as and when funds become available. These proposals can be implemented without any need for the plaintiffs to obtain possession of the parts of the property occupied by the defendant and her family. Proceedings were issued by the plaintiffs in Chippenham County Court on December 5 1990. The particulars of claim stated that possession was claimed pursuant to section 98 of the 1977 Act, on the ground that suitable alternative accommodation, in the shape of a three-bedroomed dwelling in the Corsham area, would be made available to the defendant on the making of an order for possession on or after March 5 1991. The defence averred that, even if the court were satisfied that suitable alternative accommodation was available, it would not be reasonable to make the order sought. The defendant also put in a counterclaim, claiming that, in breach of the obligations imposed on them by section 11(1)(a) of the Landlord and Tenant Act 1985 Act, the plaintiffs had failed to keep the structure and exterior, by which was really meant the roof, drains, gutters and external pipes, in repair. She sought an order for the necessary works of repair to be carried out, and damages. The plaintiffs put in a reply denying that it would be unreasonable to make an order for possession. They also joined issue on the counterclaim. So far as material, section 98 of the Rent Act 1977 provides: (1)  Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (a)   the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect . . . (4)  Part IV of schedule 15 shall have effect for determining whether, for the purposes of subsection (1)(a) above, suitable alternative accommodation is or will be available for a tenant. Schedule 15, part IV, para 3 provides: For the purposes of section 98(i)(a) of this Act, a certificate of the housing authority for the district in which the dwelling-house in question is situated, certifying that the authority will provide suitable alternative accommodation for the tenant by a date specified in the certificate, shall be conclusive evidence that suitable alternative accommodation will be available for him by that date. The trial of the action took place before Judge Boothman in Swindon between October 5 and 8 1992. By that time the local housing authority, as the defendant accepted, had, on March 3 1992, certified that they would provide suitable alternative accommodation for the defendant. Accordingly, the issues remaining for the learned judge’s determination were, first, whether it was reasonable to make an order for possession; second, whether the plaintiffs had been in breach of their obligation to keep the roof in repair, so as to entitle the defendant to relief on her counterclaim. However, it is important to note that the defendant has throughout maintained that any breach of that obligation does not merely give her a right to damages. She says that it is also a matter, and an important one at that, to be taken into account in deciding the question of reasonableness. Among those who gave evidence at the hearing were three experts. Mr William Phillips [ARIBA], an architect of Bristol with considerable experience in almshouse schemes, and Mr A P Robinson [FRICS] of Humberts gave evidence for the plaintiffs. Mr R S Goodman [FRICS] of Brooks, chartered surveyors of Bath, gave evidence for the defendant. The principal witnesses of fact were Mr J M Lock, a chartered accountant practising in Corsham, who is one of the plaintiffs, having been the treasurer to the trustees since 1988 and their secretary since 1989; and the defendant herself. In addition to the oral evidence, the judge also had a large amount of documentary evidence before him, including reports of one kind or another. At the end of the hearing the judge reserved judgment. His written judgment was delivered to the parties on some date before November 11 1992. There was then an oral hearing at Bristol on January 4 1993, when the judge made the order against which the defendant now appeals. In his judgment the judge had held that it was reasonable to make an order for possession and that the plaintiffs had not been in breach of their obligation to keep the roof in repair. He made an order for possession on April 4. He refused a stay pending an appeal to this court. His order, as drawn, does not contain a dismissal of the counterclaim, but it is agreed on both sides that he intended to dismiss it. On April 21 Staughton LJ granted the defendant a stay of the order for possession over the hearing of her appeal, which he directed to be expedited. In considering the defendant’s appeal, I start by observing that the question of reasonableness was one to be decided by the judge on a balance of all the relevant considerations, a decision which is usually described as being within his discretion and one with which this court will interfere only in limited and well-defined circumstances. Moreover, although it is necessary, first, for a view to be expressed on two subsidiary questions raised by the defendant, each of those is primarily, if not exclusively, one of fact, with whose decision by the judge this court, again, will interfere only in limited circumstances. It is only fair to the defendant that the limited role of this court in reviewing the decisions of the judge should be emphasised at the outset. The first question of fact is whether the plaintiffs have been in breach of their obligation to repair the roof. The judge found that they had not. His principal findings were as follows. Having referred to the reports of the two surveyors, to their agreement that the roof of the whole building would have to be repaired and to their disagreement over the extent of the disrepair, he continued: In a nutshell, Mr Robinson considers that the condition of the Warden’s House is not too bad considering the age of the building. Mr Goodman paints a much gloomier picture. I have to decide which of these two witnesses I prefer. It became clear to me, during the course of Mr Goodman’s evidence, that the basis of many of his criticisms is what a prospective purchaser would want to know about the property. Because of this he had to concede, in the course of his evidence, that some of his criticisms were irrelevant. I do not doubt the professional expertise of Mr Goodman but, in the context of this case, I preferred the evidence of Mr Robinson. As I have already stated, both experts agree that a new roof is required. The existing roof is probably 150-180 years old. It is constructed with stone tiles held on wooden pegs. Many of the pegs have become rotten with the result that tiles slip from time to time. The roof timbers themselves are thought to be sound, although the full position will not be known until they are exposed. In dealing with the counterclaim, the judge asked himself whether there had been a breach of the obligation. He said: Once again I have to choose between the evidence of Mr Robinson and Mr Goodman. In my view, Mr Goodman was over critical of the standard of repair. He was, as I have already pointed out, really looking at the premises from the point of view of a prospective purchaser and not from the point of view of possible breaches of section 11. Once again, I preferred Mr Robinson’s evidence to that of Mr Goodman. I do not think Mr Goodman gave sufficient weight to subsection (3) of the section, ie regard shall be had to the age and character of the dwelling. The judge then made nine specific findings, of which the first was145 that until early 1989 the plaintiffs had regularly and prudently maintained the building. Three others of these findings must be read in full: (ii)  I am satisfied that by early 1989 the roof was in need of complete repair and that the Trustees knew of this. (iii)  I am satisfied that thereafter the Trustees carried out ‘running repairs’ as and when they were notified of a problem to the roof. These were done by a Mr Lavender who had the necessary expertise. Because it was a specialist job there was sometimes a delay before these running repairs were carried out. I am satisfied that any running repairs to the roof above the living accommodation were carried out within a reasonable time . . . (vi)  In view of the above findings I do not consider that the plaintiffs are in breach of covenant as far as the roof is concerned. Having got to the end of the nine findings, the judge repeated his conclusion that the plaintiffs were not in breach of the repairing obligation. He said that the counterclaim accordingly failed. Mr Blohm, for the defendant, has submitted that there is a conflict between findings (ii) and (vi) and that the former amounts to a finding that there had been a breach of the obligation. I disagree. If finding (ii) is read in the context of the judge’s other observations and findings, it becomes clear that he was saying no more than that it would be highly beneficial for the roof to be completely repaired and that the plaintiffs knew of that. Especially significant is his reference to section 11(3) of the 1985 Act: (3)  In determining the standard of repair required by the lessor’s repairing covenant, regard shall be had to the age, character and prospective life of the dwelling house and the locality in which it is situated. That provision is in perfect alignment with Proudfoot v Hart (1890) 25 QBD 42, on which Mr Thomas, for the plaintiffs, relies — a decision more pertinent to the present case than Murray v Birmingham City Council [1987] 2 EGLR 53*, on which Mr Blohm relies. *Editor’s note: Also reported at (1987) 281 EG 1448. Viewing his observations as a whole, I think that what the judge was saying and, moreover, was entitled to say was: ‘If I have regard to the age and character of this dwelling, I find that the obligation of the plaintiffs under section 11 has been satisfied by their carrying out running repairs as and when they were notified of a problem to the roof, albeit that since 1989 it has become highly desirable that the roof should be completely repaired.’  That this was the correct approach for him to adopt is strongly supported by some observations of Cave J in the Divisional Court in Proudfoot v Hart (1890) 25 QBD 42, at pp45-46. In that case a tenant of residential premises had agreed that he would, during the term, keep the premises in good tenantable repair and would so leave them at the expiration of the term. Cave J said: So with regard to the walls, the floor, the doors, the windows, and all the different parts of the house, the tenant is bound where there is a breakage — whether arising from his own family or from some external accident — to repair it to the best of his ability; but he is never bound, when a portion of the structure has become absolutely worn out and necessary to be replaced, to substitute a new structure in the place of it. All that he undertakes to do is to patch the thing up so long as it is, in the nature of things, right and reasonable that the thing should be patched up. But, where it has got to such a state that patching up is of no avail — and we all know that things do at last get to that state — then the tenant is not bound to put in anything new, or to pay any proportion of the cost of putting in the new thing, because the old one has become unfit to discharge its duty. Mr Blohm submits that Cave J’s formulation of the principle in that way is at variance with observations made in this court by Lord Esher MR, at p53, but I am unable to see that there is any such conflict. So I am of the opinion that the judge applied the correct test and, further, notwithstanding the submissions of Mr Blohm to the contrary, that there was evidence on which he could find that the plaintiffs had satisfied that test. Here, Mr Blohm submits that none of the experts, not even Mr Robinson, approved the method adopted by the plaintiffs of pushing back the tiles as a correct method of repairing the roof. In my view, that is not determinative of the matter. The question whether the roof had in fact been repaired to the standard necessary, namely so as to make the house reasonably fit for the occupation of a tenant of the class who would be likely to take it, was a question for the judge. It was a question that could be decided in favour of the plaintiffs on the basis that the method adopted by them had been adequate in practice and that the consequential detriment to the inhabitants of the house had been minimal. In the circumstances I am of a clear opinion that we in this court cannot interfere with the judge’s decision of the first question of fact or his consequential dismissal of the counterclaim. The second such question is whether, as the judge found, in this instance impliedly rather than expressly, the plaintiffs genuinely intended to promote an overall scheme for the reconstruction of the whole property which required vacant possession of the defendant’s premises to be given to them. This, admittedly, was a pure question of fact for the judge. However, Mr Blohm has submitted that the only conclusion open to him on the evidence as a whole was that the plaintiffs’ proceedings for possession were a sham motivated by a desire to avoid the repairing obligations to which they would otherwise have been subject. Mr Blohm accepts that that is a bold submission and thus far, and thus far only, I can agree with him. The question essentially depended on the evidence of Mr Lock, who was cross-examined at some length as to the plaintiffs’ intentions; it being put to him, among other things, that the proceedings were a sham. His evidence can perhaps be summarised by quoting the two answers he is recorded as having given in re-examination: We have no alternative but to go for a further scheme so that the property can be self-supporting. The roof will eventually cave in. Mr Blohm has attempted to show that Mr Lock’s evidence was falsified by the complete lack of documentary support and the late stage, as he submits, at which an overall scheme was first mooted to the defendant or anyone on her side. Making every allowance for these and other points in the same vein, I remain quite unable to see how we, in this court, can go behind the judge’s acceptance of Mr Lock’s oral evidence. That means that his decision of the second question of fact must, like his decision of the first, be upheld. Reverting now to the question of reasonableness, I should record, first of all, that one of Mr Blohm’s principal complaints was that the judge had omitted to take the alleged breaches of the plaintiffs’ repairing obligation into account when considering that question. That, I think, may be correct. But if it is, nothing follows from it when one bears in mind that, in the second part of his judgment, the judge found that there had been no such breach. Presumably, when constructing the first part of it, he knew what he was going to say in the second part. Why, then, should he take something into account merely in order to subtract it at a later stage?  In the event he was clearly right to have left this matter out of account. I will add only that, even if there had been breaches, I consider it very doubtful whether they could, in all the circumstances of the case, have had a decisive effect on the question of reasonableness. The factors taken into account by the judge can be summarised as follows. He referred to the annual income of the trust as being no more than about £2,500, of which £1,900 came from the defendant’s rent. No further land could be sold to raise cash. Having referred, in the passage already quoted, to the evidence of the two surveyors as to the state of the roof, he said that it would be a complicated and expensive job, estimated to cost £100,000 excluding repairs to rainwater goods and any major repairs that might be needed once the timbers had been exposed. He referred to English Heritage’s offer to provide half the cost and found that it was likely that they would impose conditions about the availability of the school room to the public. Having referred to the plaintiffs’ need to find the balance of the money required and an additional problem over the almshouses which were in obvious need of renovation and modernisation, the judge continued: 146 The plaintiffs’ solution to these practical problems is to prepare a new scheme for the whole building. The basis of their reasoning is fully set out in the proofs of evidence of Mr Lock and Mr Phillips which they adopted when they gave evidence. The scheme would provide renovated almshouses and renovated Parish Room which would generate a substantial income for the Trust. It would allow the Warden’s House to be modernised and fully repaired. It would allow the school room to be more readily available to the public. In a nutshell, the trustees say that this is the only way of preserving this listed building and continuing the purpose of the Trust. It is accepted that such a scheme will present considerable difficulties and there will be many obstacles to overcome. There are likely to be objections if the proposals for changing the layout of the almshouses are too radical. Parking and access will present a problem. Consents would be needed from English Heritage and planning permission from the local authority; building regulations would have to be complied with. Having then referred to the conflict of view between Mr Phillips and Mr Goodman as to the viability of an overall scheme, the judge said: I preferred the evidence of Mr Phillips on these points. Mr Goodman is a surveyor and does not have the knowledge or experience that Mr Phillips has. I find that, on the balance of probabilities, the trustees would be able to carry out the scheme they have proposed. It seems to me it is the only viable way, in the long run, of preserving this property and of complying with the spirit of the original Trust. I am satisfied that it would not be possible or practical to carry out this scheme if the defendant and her family remained in possession. A scheme could not be put forward with them still as tenants because the long attic, the school room and the garden will have to be incorporated into the scheme. Moreover, funding, which is vital to the scheme, would be far more difficult, if not impossible, if they were to remain in possession. A further difficulty would be that their continued occupation would make it very difficult and complicated for the work to be done. Mr Phillips will have to carry out a thorough internal examination. The work will take a long time and there will be considerable disruption. The Beazeleys have not, in the past, been entirely co-operative when repairs have had to be done. Next, the judge considered the defendant’s alternative proposal that the roof only should be repaired. Of that, he said: I am afraid that suggestion is not realistic and ignores economic reality. The landlord is not a financial institution or a property company. The trustees are a group of local people who are doing their best to preserve their local heritage. If Mr Blohm’s proposal was adopted I think it is likely that the trustees would personally have to find considerable sums from their own pockets. I take this into account when considering the question of reasonableness. Finally, the judge referred to what he described as four powerful reasons put forward by the defendant for not making an order for possession. They were, first, that the Warden’s House has been the family home since 1978; second, that a three-bedroomed council house would not be big enough for their particular needs — he listed five reasons that had been given for that; third, that a move would affect the health of both the defendant and her husband; and, fourth, that there would not be adequate parking for their cars. The judge then made a comment on those matters and expressed his decision on the question of reasonableness in these terms: Any family which is facing a forced move from a house which they have lived in for many years would find such a move very difficult to face. The Beazeley family is not unique. There are many families in the current economic climate who find themselves facing a similar prospect. Is it reasonable to make an order for possession on the findings I have made?  A number of cases have been cited to me, but they are of little assistance. On the question of reasonableness each case must inevitably turn on its own facts. The only way the trustees can continue with the upkeep and maintenance of the property and to administer the Trust is to embark on the Lock/ Phillips scheme. This can be done only if the Beazeley family leaves. Notwithstanding the powerful reasons advanced by the defendant, I have come to the conclusion that it is reasonable to make an order for possession. In coming to this conclusion I should add that I have not given any weight to the other matters relied upon by the plaintiffs. The judge then set out four matters of complaint by the plaintiffs and said that he attached no weight to any of them. Given that he has not succeeded on the earlier questions, Mr Blohm’s remaining criticism of the judge’s decision on the question of reasonableness is that he did not make any or any adequate findings as to the four matters put forward by the defendant as tending to show why she should not be required to give possession. While accepting that that was so, in the sense that the judge, having taken those ‘powerful’ reasons into account, did not spell out why they were outweighed by the factors on the other side, and while I would not myself have made the comment made by him, I cannot see that this point is anywhere near sufficient to invalidate his decision. Indeed, while I have great sympathy for the defendant and her family, I cannot see that the judge could reasonably have arrived at any other decision. The tragedy of the case from the defendant’s point of view, and I well understand that that may not be too strong a word, is that the eccentricities of the Rent Act have accustomed her and her family to accommodation of a quality and character far in excess of anything to which they can be compelled to move as an alternative. It is no great comfort for them now to be told that they have been very fortunate to be there for nearly 10 years since the contractual term expired, nor that there are many other families who, for economic reasons, find themselves facing a similar prospect, when they themselves have to face it for quite different reasons. I would dismiss this appeal. Agreeing, ROCH LJ said: The Court of Appeal will overrule a county court judge on the question of the reasonableness of making an order for possession only on very strong grounds. Further, this court will assume that the county court judge has taken all the relevant matters into account unless the contrary is clearly shown. In this case, if the judge’s conclusion that there had been no breach by the respondent lessors of their implied covenant to keep in repair the structure and exterior of the Warden’s House was correct, then it cannot be argued, and Mr Blohm does not seek to argue on the appellant’s behalf, that the judge did not take all relevant matters into account. At the end of Mr Blohm’s argument I was persuaded that the judge’s conclusion that the respondents were not in breach of their covenant was incorrect and that the judge’s finding (ii) on this aspect of the case, namely that he was satisfied that by early 1989 the roof was in need of complete repair and that the trustees knew about this, could not be reconciled with his finding (vi) that the plaintiffs were not in breach of covenant so far as the roof was concerned. Mr Thomas, in the course of his submissions, changed my opinion on this matter by referring this court to the paragraph in the judgment preceding the judge’s nine particular findings. The two particular and apparently conflicting findings can, I am now persuaded, be reconciled for the reasons given by Nourse LJ. Even if the principles stated by this court in Murray v Birmingham City Council [1987] 2 EGLR 53 were to be applied, Mr Robinson’s evidence, which the judge accepted, did not support the defendant’s contention that piecemeal repair of this roof had become impracticable, nor that the time had come for complete replacement, albeit that by 1989 it was evident to the trustees that complete replacement was needed. There was evidence that these tiles are thick and rough and will remain in place when pins fail, in cases where slates would not. This roof with running repairs was, as I understand the judge’s conclusions, still fulfilling its role to the standard to be expected of a roof of this type, which was never designed to be completely wind and watertight, on a building of this age and character. Nevertheless, if I had reached the conclusion that the judge was wrong on this issue and should have found a breach of the implied covenant, I would not have remitted the case to the county court for a fresh trial, nor to Judge Boothman, for him to reconsider whether it was reasonable to make an order for possession. Mr Blohm submitted that if this court reached the conclusion that the lessors had been in breach of their covenant then this court was obliged, by practice, to remit the matter to the county court. He relied on a passage in Megarry The Rent Acts, 11th ed, at p393 which reads: Where it is necessary to set aside a decision on reasonableness, the Court of147 Appeal will usually order a new trial, though it may remit the case merely for reasonableness to be considered. But if the court is satisfied that it is in possession of all the material facts, it may decide the issue itself, either making an order for possession, or setting such an order aside. In this case, I would have been satisfied that this court had in its possession all the material facts and was able to decide the issue of reasonableness itself. In my judgment, the judge came to the only conclusion that he could reach on the issue of reasonableness in the light of his findings of fact. The judge made findings as to the state of the roof of the whole building which Mr Blohm did not criticise. The judge then went on to find that the roof repair, that is to say the removal of all the tiles, the replacing of the wooden pegs and such other battens and timbers as required replacement and then the replacement of the tiles, would be a complicated and expensive job; it would cost in the region of £100,000. Next, the judge set out the respondent’s case, that the proposed scheme for the whole building was a practical proposition based on the evidence of Mr Phillips, and the appellant’s case, that the proposed scheme was pie in the sky based on the evidence of Mr Goodman, and then made the finding that he preferred the evidence of Mr Phillips on those points, giving his reason for doing so, namely that Mr Phillips had considerable experience of such schemes whereas Mr Goodman had none. The judge found on the balance of probabilities that the trustees would be able to carry out the proposed scheme and then said: It seems to me it is the only viable way, in the long run, of preserving this property and of complying with the spirit of the original Trust. I am satisfied that it would not be possible or practical to carry out this scheme if the defendant and her family remained in possession. A scheme could not be put forward with them still as tenants because the long attic, the school room and the garden will have to be incorporated into the scheme. Moreover, funding, which is vital to the scheme, would be far more difficult, if not impossible, if they were to remain in possession. A further difficulty would be that their continued occupation would make it very difficult and complicated for the work to be done. Mr Phillips will have to carry out a thorough internal examination. The work will take a long time and there will be considerable disruption. The Beazeleys have not, in the past, been entirely co-operative when repairs have had to be done. Mr Thomas, in the course of his submissions, demonstrated that there was evidence to justify each of those findings and observations by the judge. The judge then looked at the alternative advanced on behalf of the appellant, namely that the almshouses could be left as they were, with modest renovations as and when funds became available, and that the roof could be repaired with the help of English Heritage, the trustees finding the other £50,000 from other sources and further considerable sums to carry out other necessary repairs to the property. The judge said of that case: I am afraid that suggestion is not realistic and ignores economic reality. The landlord is not a financial institution or a property company. The trustees are a group of local people who are doing their best to preserve their local heritage. If Mr Blohm’s proposal was adopted I think it is likely that the trustees would personally have to find considerable sums from their own pockets. I take this into account when considering the question of reasonableness. In my judgment, although lack of funds on behalf of the lessors would not be a defence to a claim for breach of their covenant to keep the premises in repair, that lack of funds is a relevant factor when the judge comes to the question of the reasonableness of making the order for possession. Any facts which amount to hardship to the landlord or tenant are relevant. As it was correct for the judge to take into account the powerful reasons advanced on behalf of the appellant against the making of an order for possession, so, in my judgment, was it right for him to take into account the fact that the trustees were a group of local people who were doing their best, with the limited income earned by the trust, to preserve the local heritage by implementing a scheme which would put this building back into a condition where it would no longer require running repairs and which would increase the income of the trust, thus facilitating future maintenance of the property. In summary, it seems to me that the position which faced the judge was that suitable alternative accommodation was available for the appellant and her family, and in deciding whether it was reasonable to make an order for possession, he had, on the one hand, to weigh the hardships and the detriment that an order for possession would impose on the appellant and her family, including the fact that the alternative suitable accommodation would be substantially smaller and, in other ways, inferior to the Warden’s House, on the one hand, and the desirability, if not necessity, of major expenditure on the whole building if this historically and architecturally important structure was to survive for the use and enjoyment of the people living in the Corsham area. In my opinion, that question admitted only one solution, namely that arrived at by the judge in the light of the judge’s findings that he was satisfied that it would not be possible or practical to carry out the scheme if the appellant and her family remained in possession. What is certain is that it cannot be said that the judge’s decision on that issue, even assuming that he failed to take into account a breach of covenant by the lessors, was perverse or absurd (Mr Blohm accepted at the outset of his submission that Wednesbury principles apply, because the judge was exercising his discretion) or that there exists very strong grounds for over-ruling the judge’s decision on this issue. For these reasons and those given by Nourse LJ I, too, would dismiss this appeal. Appeal dismissed.