Dawncar Investments Ltd v Plews

Landlord and tenant — Rent Act 1977 — Suitable alternative accommodation — Reasonableness — Weight to be placed on environmental considerations. Since 1975 the defendant has been the protected tenant of a first-floor flat at 50 Pilgrims Lane, London NW3, owned by the plaintiffs. The defendant, who was aged 42 and had one child, worked as a self-employed textile designer in Covent Garden, London. The plaintiffs sought possession of the flat on the ground that they had offered as suitable alternative accommodation a first-floor flat at 4 Iverson Road, London NW6. In the county court the judge, in dismissing the claim for possession, considered it would not be reasonable to make such an order as it would be entirely wrong to expect the defendant to live at Iverson Road, an area of noise, traffic, heavy lorries, railway lines and rough inhabitants, notwithstanding that the alternative accommodation, as accommodation, was in many ways superior. The plaintiffs appealed, contending that where environmental considerations are relevant they should be given less weight where a landlord puts its case under the Rent Act 1977, Schedule 15, Part IV, para 5(1)(a) rather than para 5(1)(b). Held: The appeal was dismissed. The court is not obliged to give less weight to environmental considerations in assessing overall reasonableness because of the way the plaintiffs choose to put their case. The weight to be put to factors which are relevant are essentially a question for the trial judge, especially where the judge has had the opportunity of seeing both flats. The following case is referred to in this report. Redspring Ltd v Francis [1973] 1 WLR 134; [1963] 1 All ER 640, CA This was an appeal from the decision of Judge Martin QC (sitting in Bloomsbury County Court), who on April 16 1992 dismissed a claim by the plaintiffs, Dawncar Investments Ltd, for possession of premises occupied by the defendant Miss Vanessa Plews. Romie Tager (instructed by JJ Goldstein & Co) appeared for the appellants; Paul Staddon (instructed by Oliver O Fisher & Co) represented the respondent. Giving judgment, LLOYD LJ said: This is an appeal from a judgment of Judge Martin QC, given in Bloomsbury County Court on April 16 1992, whereby he held that the landlords, Dawncar Investments Ltd, had failed to make out a claim for possession of a dwelling-house on the first floor of 50 Pilgrims Lane, London NW3. The defendant, Miss Vanessa Plews, is a protected tenant for the purposes of the Rent Act 1977. She is a self-employed textile designer, working in Covent Garden. She has been in occupation of the flat since 1975. She is now aged 42 and has one child. The plaintiffs’ case is that there is suitable alternative accommodation available for her on the first floor of 4 Iverson Road, London NW6. The learned judge, who is very experienced in cases of this kind, visited both flats. He formed the view, which he expressed in forthright language, that it would not be reasonable to make an order in this case. He said it would be entirely wrong to expect the defendant to live in Iverson Road and that he had reached that view without any hesitation. It is obvious, therefore, that the plaintiffs must face a difficult task in persuading this court to take a different view on the facts, unless the judge has misdirected himself in law, or taken account of some wholly irrelevant factor. The description and character of the two flats are well set out in the judgment. Briefly, Pilgrims Lane is a quiet road in a pleasant part of Hempstead. It is on the fringes of the Heath, with good-quality shops nearby. Iverson Road, on the other hand, is a busy commercial road, running between Westend Lane and Kilburn High Road. There is a lot of traffic, including heavy lorries turning into a timber yard immediately opposite the house. The noise of the bandsaw in the timber yard is described as being very intrusive. There is a railway at the front of the house and another at the back, two public houses nearby and a lot of drunkenness. In the course of her evidence the defendant said that she would not feel safe in the area. The judge accepted that evidence. He found that she would be afraid to live there and with good reason. A woman police officer gave evidence as to the crime rate in the locality. The judge summed it all up when he said in two sentences: I would be very unhappy for a woman like Miss Plews, having to live in 42 Iverson Road because of the noise, traffic, heavy lorries, proximity of railway lines, general roughness of the area and of the inhabitants. I find as a fact that it is not suitable as regards character. If one could ignore the neighbourhood all together, then the judge found that the alternative accommodation, as accommodation, was in many ways superior. But I need not go into details. I turn then to the relevant statutory provisions, which are contained in section 98 of the Rent Act 1977, and Part IV of Schedule 15. These provisions are so well known that I need not take time to read them, save only para 5 of Part IV of Schedule 15, which sets out the conditions which have to be fulfilled under para 4. Para 5 reads: (1)  For the purposes of paragraph 4 above, the relevant conditions are that the accommodation is reasonably suitable to the needs of the tenant and his family as regards proximity to place of work, and either — (a)  similar as regards rental and extent to the accommodation afforded by dwelling-houses provided in the neighbourhood by any authority [local housing authority] for persons whose needs as regards extent are, in the opinion of the court, similar to those of the tenant and of his family; or (b)  reasonably suitable to the means of the tenant and to the needs of the tenant and his family as regards extent and character, No question arises in the present case with regard to proximity to the tenant’s place of work. But Mr Tager draws our attention to the inclusion under para 5(1)(b) of a reference to the character of the alternative accommodation, as well as to its extent; whereas in para 5(1)(a) there is no reference to the character of the accommodation. Yet, it was by reason of the character of 42 Iverson Road, as affected142 by the character of the neighbourhood, that the judge found that it would not be reasonable to make an order for possession in this case. If Mr Tager had felt able to submit that the character of the house was irrelevant, when considering the question of reasonableness under section 98 of the Act, then he would have been on strong ground in arguing that we ought to disturb the judge’s decision, for the judge would, on that view, have taken account of an irrelevant consideration. But Mr Tager rightly did not feel able to press his argument that far. He accepted that reasonableness under section 98 is an overriding consideration and that in assessing reasonableness all relevant consideration had to be taken into account, including the character of the accommodation. Moreover, in the case of Redspring Ltd v Francis [1973] 1 WLR 134, this court held that what Buckley LJ called ‘environmental considerations’ are relevant under what is now section 98, as well as under para 5(1)(b) of Schedule 15. I quote from Buckley LJ’s judgment at p 138E: Under section 10 of the Act of 1968 it is possible that this sort of consideration might be regarded as coming into consideration under one of two heads: either as a consideration which affects the suitability of the accommodation as regards its character, or as being a matter which affects the question of whether it is proper for the court to regard it as reasonable to make a possession order under the section. For my part, I do not think that it very much matters under which head one regards it as coming. I am, for myself, satisfied that such environmental questions are proper matters to be taken into consideration in deciding whether or not a possession ought to be made. In other words, environmental considerations may do double service, both under para 5(1)(b) and also in assessing reasonableness under section 98. Mr Tager was, for those reasons, right to accept that the environmental considerations, which impressed the judge so much, were relevant to his decision under section 98. How then does Mr Tager put the appeal?  He says, in effect, that environmental considerations, although relevant, should be given less weight when the landlords put their case under para 5(1)(a) (as they did in this case) than when they put their case under para 5(1)(b), as they did in Redspring Ltd v Francis. He says that the judge’s failure to appreciate that distinction was an error or, alternatively, that the judge erred in giving too much weight to the environmental considerations on the facts of this case. I cannot accept either branch of that argument. I do not agree that the judge was obliged to give less weight to environmental considerations in assessing overall reasonableness, because of the way the plaintiffs chose to put their case. But, in any event, the weight to be given to factors which are, admittedly, relevant is essentially a question for the trial judge. I find it difficult to imagine a case in which this court would interfere because the judge had given, in this court’s view, too much weight to one factor, and not enough weight to another factor, unless it could be said that the judge was plainly wrong in his conclusion. This is especially so where the judge has had the opportunity of seeing both flats and the environment in which they are set, which we have not. Mr Tager has thus failed to satisfy me that the judge was plainly wrong to form the view which he did. On that short ground I would dismiss this appeal. In those circumstances, I need not consider whether the judge was right to hold, as he did, that the plaintiffs had not succeeded in bringing their case within para 5(1)(a) at all, for reasons which do not matter. I would dismiss the appeal. ROCH LJ agreed and did not add anything. Appeal dismissed.