Griffiths v English

Rent Act 1977, section 12 — Whether resident landlord provisions excluding a tenancy from being a protected tenancy applied — Sole question in present case was whether the tenant’s dwelling-house formed ‘part only of a building’ within the meaning of section 12(1)(a), in which case the tenant had a restricted contract only and not a protected tenancy — Held that the whole property, in spite of having a centre portion with extensions on both sides, having no internal connection with the centre, constituted one building — Bardrick v Haycock considered and principles applied, although on the facts that decision went the other way — Appeal from decision of county court judge, who made an order for possession in favour of landlords, dismissed This was an appeal by the tenant against an order for possession of a dwelling-house which constituted the left-hand extension of a property known as ‘Wessex Manor’, described by Eveleigh LJ as a ‘quite small’ property. The structure of the property, with the main house in the centre and extensions on each side, is described in the judgment of Eveleigh LJ. The appellant (defendant in the court below) was Richard English; the respondent (plaintiff) was Thomas Percy Griffiths. K F Wylie (instructed by Jasper & Vincent, of Eastleigh, Hants) appeared on behalf of the appellant; J A H Haig-Haddow (instructed by Bell, Pope & Bridgwater, of Southampton) represented the respondent. Giving judgment, EVELEIGH LJ said: The property which we have to consider in this case appears clearly from the photograph before the court. Looking at the photograph we see the front of the property — the centre of which can be described as neo-Georgian — with a centre doorway fronted by a porch and one room on either side of that doorway. To the left, as we look at the photograph, there is a single-storey extension which goes along for approximately 20 ft and then turns at an angle of about 60º  to the rear for another 10 ft or so. The exact measurements are not of importance. The front of the main house itself is some 25 ft, or so it would appear. To the right of the property there is another extension which travels for about 5 ft. That, too, is single storey and that extension then turns at a right angle to the main house and goes towards the road a distance of some 25 or 30 ft or thereabouts. That extension has a gabled roof. The extension to the left of the property has a flat roof. That flat roof is used as a terrace. The extension itself on the left is probably some 15 ft in depth and so the terrace is a substantial one. It is accessible from the main house and it is surrounded by an attractive modern terrace rail. The extension to the left of the property has a main doorway approximately in the centre of the wall before it turns off at 60º , as I have said. There is no communication between that extension and the main house. There is, indeed, no communication between the extension on the right and the main house. There had been a doorway and that has been blocked up. The extension on the left is occupied by the defendant. It is his dwelling-house. The main house itself is divided into flats and the terrace is available for use by the occupant of a flat. The extension on the right, as we look at the building, with the gabled roof is occupied by the landlord, the plaintiff. The property was not always in the condition in which we now see it, for immediately to the left of the house there originally existed a garage. It was attached to the house, and away to the left of the garage there was an air-raid shelter. Reconstruction work was undertaken, which connected the air-raid shelter to the garage. Windows and doors were put in and rooms were formed within those exterior walls. The air-raid shelter was turned into a bathroom and kitchen. These reconstructed premises were now available to be let as a dwelling-house. There is no longer a garage there. The learned county court judge made an order for possession, although the defendant had claimed that his was a protected tenancy. The order was made on the basis that the premises were not protected by virtue of section 12 of the Rent Act 1977. That section lays down a number of conditions which have to be fulfilled in order to take a tenancy out of the Act for the purposes of security of tenure, but the relevant one with which this case is concerned is contained in section 12(1)(a). It reads as follows: The dwelling-house forms part only of a building and . . . the building is not a purpose-built block of flats. No question of a purpose-built block of flats has been raised in this case and the sole question is whether the defendant’s dwelling-house forms part only of a building. Perhaps it is not quite accurate to put it as simply as that, because it is also necessary for it to be established that the landlord himself occupied the building; but the question was raised before the learned judge in the simple form, as indeed was appropriate. Is the whole of the property that I have described a building or does it consist of more than one building? Counsel for the appellant has recognised that this involves a question of fact and the learned county court judge visited the premises and came to the conclusion that they were one building. There is no appeal to this court on a question of fact in a case such as the present because its rateable value is such that it does not come within the provisions of section 109 of the County Courts Act, which allows an appeal on a question of fact where the rateable value of the premises is £500 or over. The rateable value in this case is less than that. But it has been submitted on behalf of the defendant that the learned judge misdirected himself in a number of respects which are set out in the grounds of appeal. Before turning to those specific allegations I would consider the matter of fact myself — although, indeed, it is not necessary to do so unless one comes to the conclusion that the learned judge did misdirect himself. This property, looking at it, did it not have the centre door to the defendant’s premises, could easily be regarded as follows. Here we have a house which has a single-storey extension running away to the left: an extension that might well be providing a garden room or something like that to be used in connection with a terrace and garden at the back. To the right the property gives the appearance of a substantial extension to the main house for use as domestic offices, possibly for use as storerooms, but also for use for personal occupation. But in my judgment, the appearance is that of one property, and I would go further and say one building. I would not readily recognise any part as being that of a separate97 building. One may add, in addition to the description I have already given, that the front forecourt of the property is contiguous with the whole of the premises: the defendant’s dwelling-house, the centre house and the wing on the right. In a similar way the garden is contiguous with the perimeter of the property at the back. It should be emphasised, I think, that this property is really quite small. It is called ‘Wessex Manor’ and that might lead one to think that the property is of substantial dimensions. It is not. Now, I myself would have come to the same conclusion as that of the learned judge and, saying that, it is really unnecessary or academic to consider the particular criticisms made of the judgment in the course of the appeal. Suffice it to say that, in my opinion, they do not demonstrate that the learned judge misdirected himself. It is no disrespect to the very careful and helpful argument of counsel for the appellant if I do not deal with each one specifically; but take as an example the ground of appeal which complained that the learned judge had regard to an expression of opinion of the plaintiff himself when he said that he would not have let the property if he thought that it was other than a single building and thus entitled to the benefit of the provisions of section 12 of the Act. It is true the learned judge did refer to that expression of opinion, but he was doing so after having formed and expressed his own opinion and, in my judgment, he merely stated it, as it were, as lending some support generally to the view that he independently had formed. It was an unnecessary remark but this was an extempore judgment. Judges sometimes do make such remarks; and it seems to me that the other grounds of appeal, broadly speaking, are explicable upon the same basis. These cases are very much questions of fact and for the decision of the learned judge. This is made quite clear in a case which has been quoted to this court, Bardrick v Haycock (1976) 31 P & CR 420. Cairns LJ said this at p 425: When an Act of Parliament uses the word ‘building’ without defining it there must be some structures or pairs of structures which as a matter of law could be said to be two buildings within the meaning of the Act and some which as a matter of law could be said to be one building. If a judge held, for example, that two quite separate houses constituted one building, he might be said to have erred in law. On the other hand, if a judge held that two floors in the same house constituted separate buildings, that might be said to be erroneous in law. There must, however, be some borderline cases as to which it is a question of fact whether there is one building or two. All the grounds of appeal here are to the effect that the judge erred in law. Some guidance as to what Parliament meant by ‘building’ in the particular Act may be gained by considering the context in which the word is used. I do not find in the context of the Act here any such indication as would enable me to say that where a new habitable structure is built adjoining an existing house which is divided into flats, but with no internal communication, the main structure together with that house constitutes one building. I consider that this is one of those borderline cases where the question is one of fact, as with a pair of semi-detached houses: see the decision of the Divisional Court in Humphrey v Young [1903] 1 KB 44 to which Scarman LJ has referred. The facts of that case were mentioned to the court because the decision went the other way; but it is emphasised in the judgments delivered that the question is one of fact. As I have said, I myself in this case would have taken the view that this was one building and, that being so, I hope I am right in saying that that deprives counsel of the advantage of the further ground of appeal on which he relies that, upon the evidence in this case, no reasonable person could come to the conclusion that this was one building. I would dismiss this appeal. Agreeing, BRANDON LJ said: I would just mention that the provisions of section 12 of the Rent Act 1977 under the wording of that section apply only to tenancies of dwelling-houses granted on or after August 14 1974; but, with the assistance of counsel, we were able to see that the provisions were made to apply to tenancies granted earlier by Schedule 24, paragraph 6, to the 1977 Act. There was, therefore, no dispute below and no dispute here that these furnished tenancies were governed by the provisions of section 12. I would direct myself entirely by the judgment of Cairns LJ in Bardrick v Haycock, which my Lord, Eveleigh LJ, read. I think it clear that there may be some cases where no reasonable judge at first instance could conclude that premises constituted a single building, and other cases where it would be quite impossible for him reasonably to conclude that they did not constitute a single building; and in these cases it could be said that, if the judge comes to a conclusion which is wholly unreasonable, then he has erred in law. But in between those cases there must be a band of cases where different views can perhaps be taken reasonably by different judges. That being so, in so far as a judge in what might be described as a borderline case comes to a conclusion one way or the other as to whether there is one building or more than one building, then the matter is one of fact and no appeal to this court is available in respect of his decision. I think this case comes within that concept. It is a case where there were plausible arguments capable of being put forward that the defendant’s flat was a separate building, and there were plausible, and perhaps more than plausible, arguments capable of being put forward that it was all part of the whole structure known as Wessex Manor. The judge decided that the flat was part of the whole structure; that was a decision of fact and, in my view, we would have no power to interfere with it even if we disagreed with the conclusion to which the learned judge came. Like my Lord, Eveleigh LJ, however, if I were asked to re-try the case as if I were a judge at first instance, on the material before us, I think that I should come to the same conclusion as did the learned judge. It was contended in the notice of appeal that the learned judge had regard to a number of matters which he should not have taken into account and had failed to take into account matters which he should have taken into account. Of course, if that were established, that would show an error of law on the part of the learned judge; but I find it difficult to see how these complaints can be justified. In paragraph 2 of the notice of appeal it is complained that: The learned judge was wrong in treating as irrelevant the fact that a substantial part of the defendant’s dwelling was at one time part of an air raid shelter standing separate from, independent of and predating the main part of Wessex Manor. In my view, the previous history of the building and evidence that at one time it was in a different form from the form in which it is now were not relevant to the decision whether the present structure is a single building or not. Then it is said that: The learned judge was wrong in treating as irrelevant the fact that at no time was the defendant’s dwelling internally connected to the rest of Wessex Manor. I do not know that there is any reason to suppose that the judge did treat it as irrelevant. What I think that he did say, or meant to say, was that it was not a conclusive matter. It could not by itself outweigh all the other matters which he thought pointed in a different direction. Then it is said that: The learned judge was wrong in treating as irrelevant the history of the construction of the parts of Wessex Manor. Here again, it seems to me that what the judge has to deal with was the building as it now stands and not the history of how it came into being. Then it is said that: The learned judge was wrong in taking into account facts irrelevant to the question of whether the defendant’s dwelling was part only of a larger building, namely (a)  the fact that it had no separate garden; (b)  the fact that the plaintiff had a greenhouse and shed at the back of the defendant’s dwelling; (c)  the fact that the whole complex known as Wessex Manor was once in single occupation; and (d)  the fact that the plaintiff had not expected to grant a protected tenancy to the defendant. To my mind, in deciding the question of fact which the learned judge had to decide, a very large number of circumstances can be relevant and all of them should be taken into account. I certainly think that the absence of a separate garden and the presence of a98 greenhouse and shed at the back of the defendant’s dwelling and the fact that the whole complex of buildings had once been in single occupation were all material facts that the trial judge was entitled to take into account. With regard to the last matter, the fact that the plaintiff had not expected to grant a protected tenancy to the defendant, I agree with what my Lord, Eveleigh LJ, has said. What I think the learned judge was intending to say when he referred to that was that the attitude which the plaintiff had adopted was consistent with the intention of the legislature in respect of this provision as explained by Scarman LJ (as he then was) in Bardrick v Haycock. He said at p 424: Therefore, the mischief at which the section was aimed was the mischief of that sort of social embarrassment arising out of close proximity — close proximity which the landlord had accepted in the belief that he could bring it to an end at any time allowed by the contract of tenancy. All the judge was saying was that the plaintiff did regard the tenancy of this flat, if it was a protected tenancy, as giving rise to the sort of close proximity which, according to Scarman LJ’s judgment, this provision was intended to avoid. Then, in paragraph 6 of the notice of appeal, it was suggested that: The learned judge was wrong in holding that the respective dwellings of the plaintiff and the defendant, parts of each of which were freestanding buildings before the central section of Wessex Manor was built, could become parts of the same building within the meaning of section 12 of the Rent Act 1977 by the gradual construction of the said central section. I find this a ground of appeal that is totally untenable. It seems to me that, if you have two buildings which are separated and you then join them together with another building between the two in a manner which ordinary people would regard as creating a single building, then what you have got left is a single building. I think that I have dealt with all the points in the notice of appeal except the final one, which is: . . . the conclusion was one that could not reasonably be reached, and was inconsistent with the evidence heard and accepted by the learned judge. Since both Eveleigh LJ and I consider that we would have arrived at the same conclusion as the learned judge, it follows that neither he nor I can possibly regard that ground as having any substance in it at all. For the reasons which I have given and those already given by Eveleigh LJ, I agree that the appeal should be dismissed. O’CONNOR LJ said: I agree with both judgments which have been delivered and have nothing to add. The appeal was dismissed with costs up to the date of the legal aid certificate, the costs to be referred to the registrar of the South-ampton County Court, both as against the appellant and the Law Society. Further stay of execution for 28 days was granted.