Yewbright Properties Ltd v Stone and others

Rent Acts–Appeal from decision of county court judge refusing order for possession–Main issue suitability of alternative accommodation offered by landlords–Whether accommodation was reasonably suitable to the needs of the tenant as regards proximity to place of work–Appellant a freelance clothes designer who, apart from short visits abroad, carried out her work at the customers’ premises or at home in the subject premises, both her customers’ premises and her home being in the London SW6 area–Alternative accommodation offered in East Dulwich–County court judge held that her place of work was the SW6 area and that the accommodation offered at East Dulwich was not reasonably suitable as regards proximity to place of work–Judge entitled to come to this conclusion on the evidence–Various criticisms of decision rejected–Observations on state of disrepair of the East Dulwich premises which, even if appellants had succeeded otherwise, would have prevented the Court of Appeal from doing more than remitting case to county court judge–Appeal dismissed This was an appeal by the plaintiffs, Yewbright Properties Ltd, the landlords, from a decision by Judge Hayman at the West London County Court refusing the plaintiffs a possession order in respect of a maisonette at 35 Mirabel Road, London SW6. The respondent was Miss Jean Stone, who had been held by the county court judge to be the tenant of the maisonette. Two other ladies, Miss Mills and Miss Checkter, were found by the judge to be licensees of the tenant. Miss Stone had been described in the action as the first defendant and the other two ladies collectively as the second defendant. There was no appeal against the judge’s finding that the latter were licensees. Richard Fernyhough (instructed by Friedman, Fredman & Co) appeared on behalf of the appellants; Simon Levene (instructed by Russell-Cooke, Potter & Chapman) represented the respondent. Giving judgment, MEGAW LJ said: This appeal from the judgment and order of Judge Hayman in the West London County Court arises out of an action by the plaintiffs, Yewbright Properties Ltd, claiming possession of a maisonette at 35 Mirabel Road, London SW6. The order of the learned judge was made on December 4 1979. A written reserved judgment giving the reasons for the decision was, at the request of the plaintiffs, delivered by the learned judge on January 7 1980. The judge refused the claim for possession on two grounds. The first defendant is Miss Jean Stone who, at the time when the action for possession began, had become a statutory tenant of the premises. She had lived there as a tenant since 1967, the landlords in earlier years being the plaintiffs’ predecessors in title. There are two other defendants, Miss Mills and Miss Checkter, who are described in the title to the proceedings collectively as the second defendant. The judge held, contrary to the submission of the plaintiffs, that those two ladies were licensees of the tenant, Miss Stone, the first defendant. That finding defeated certain of the grounds on which the plaintiffs claimed possession. There is no appeal against that finding or the judge’s rejection of those grounds. Because of the view which I take on one of the several issues raised in the appeal–being an issue on which, unless the plaintiffs show that the judge was wrong, the appeal must fail irrespective of the answer on the other issues sought to be raised–I do not think it necessary to go into the facts in any great detail. Many of the matters canvassed in evidence at the trial are not relevant to the issue on which I think this appeal can and should be decided. Because of the poor state of repair of the premises at 35 Mirabel Road and because of repeated notices from the local authority requiring repairs to be carried out, at some time in the summer of 1979 the defendants agreed to the plaintiffs’ request that they should temporarily move out from 35 Mirabel Road in order to enable the required work to be done. That was agreed on the basis, as I understand it, that, for the purposes of the then contemplated legal proceedings by the plaintiffs, the defendants should be treated as though they were actually residing in the premises. If the contemplated claim for possession should fail they would return on the completion of the repairs. If an order for possession were to be made meanwhile they would not return to the maisonette. On July 20 1979 the plaintiffs served a formal notice to quit. On its expiry Miss Stone became, as I have said, a statutory tenant. The proceedings for possession were begun in the county court on August 29 1979. The grounds on which the claim was originally made are no longer relevant. They have all fallen by the wayside but, on November 14 1979, which was the first date of the hearing in the county court, the plaintiffs amended their particulars of claim to add a further ground: the availability of suitable alternative accommodation. The hearing before the judge took two days, November 14 and December 4 1979. At the end of the hearing the judge announced that the claim for possession would be dismissed and, as I understand it, he gave brief oral reasons. He fairly and courteously said that, if either party were to wish for fuller reasons for the judgment, he would be prepared to give them at a later date. The plaintiffs took advantage of that offer, hence the full and careful written judgment actually delivered on January 7 1980. The judge held against the plaintiffs on other grounds which are not relevant to this appeal. He also held against them on the two issues sought to be raised in this appeal: first, that the alternative accommodation offered was not suitable and, second, that it would not be reasonable to make the order for possession. The relevant statutory provisions are contained in the Rent Act 1977. Section 98, so as far as it is relevant, reads as follows: (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 and then I need not trouble with (b). Subsection (4) reads: 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. Part IV of Schedule 15 provides, so far as is relevant, in paragraph 4 as follows: . . . accommodation shall be deemed to be suitable for the purposes of section 98(1)(a) of this Act if . . . in the opinion of the court, the accommodation fulfils the relevant conditions as defined in paragraph 5 below. Paragraph 5, so far as it is relevant, 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– and then it goes on to make provision for other matters which I need not read, having regard to the view that I have formed in this case. It follows that, if the plaintiff landlord (the onus being on him) fails to satisfy the court that the alternative accommodation offered is reasonably suitable to the needs of the tenant as regards proximity to place of work, the claim to possession must fail. So also, even if the judge were satisfied as to that, because of the express provisions of section79 98(1) the judge would have to consider whether it was reasonable to make the order and, if the answer to that were ‘No,’ then the claim also would fail. The plaintiffs put forward two flats or maisonettes as being suitable alternative accommodation. The judge rejected both of them. As regards one of them, in Harrowby Street, W1, we are not concerned in this appeal. The plaintiffs do not ask us to say that the judge was wrong as respects that accommodation. The other alternative accommodation offered was a maisonette at 28 Friern Road, East Dulwich. Counsel for the plaintiffs submits that, on paragraphs 4 and 5 of Part IV of Schedule 15, the plaintiffs have to show that the alternative accommodation offered satisfies each of seven tests. Those include tests prescribed in a part of paragraph 5 which I do not find it necessary to read. The judge held that the Friern Road maisonette passed four of those tests. One of the three which it did not pass in the judge’s view on the evidence was that it should be reasonably suitable to the needs of a tenant as regards place of work. Unless the judge was wrong as to that, the claim for possession, as I have said, necessarily failed. At the end of the submissions of counsel for the plaintiffs on that point we were satisfied that the plaintiffs had failed to show that the judge was wrong. We did not find it necessary, nor did we think it would be profitable, to hear submissions on the other issues, the other hurdles which the plaintiffs would have had to surmount. The relevant evidence as to suitability for the needs of the first defendant as regards place of work is summarised in the written judgment of the learned judge. As we have been shown all the relevant parts of the notes of evidence, it is right that I should say that it is, as one would expect, admirably accurately summarised by the learned judge. I look first at p 5 of the judgment: With regard to the first defendant personally, her evidence was as follows. She is a freelance clothes designer by occupation. Most of her customers are in the Fulham-Chelsea-Kensington area (described, during the course of the hearing, as ‘the SW6 area,’ and I shall hereafter refer to it as such). The first defendant has lived in that area all her life. She does not have any work in the Oxford Street area nor does she like the West End. She does some work abroad, mainly in Spain, but does not spend more than about two months a year out of the United Kingdom. When commissioned to do a job, the first defendant carries out the work either at the premises of the customer in question or at home. As the judge has found that most of her customers are in the SW6 area, then, when the learned judge says ‘When commissioned to do a job, the first defendant carries out the work either at the premises of the customer in question or at home,’ the premises of the customer in question would, in the majority of cases, be in the SW6 area. The further relevant passage in the judgment is at p 6. The judge says: I turn to the conditions laid down in Part IV of Schedule 15 to the 1977 Act. First, proximity to place of work. On the first defendant’s evidence, I find that the SW6 area is her place of work. The fact that she also works at home–and, indeed, abroad–does not, in my judgment, affect the position. I further find that Friern Road is not reasonably suitable to her needs as regards proximity to her place of work. I should say that there was evidence which the learned judge was entitled to take into account and did, no doubt, take into account both from the first defendant herself and, I think, another witness as to the length of time that it would take to go from East Dulwich to the SW6 area. For the plaintiffs, counsel submits that the judge was wrong for a number of reasons which are, in some degree at any rate, interrelated. First, as I understood his submissions as he made them yesterday in the course of his address, he says that, as a matter of construction of the wording of paragraph 5(1) of Schedule 15, Part IV–the needs of the tenant and his family as regards proximity to place of work–a place of work has to be a place such as one factory or office. It cannot be an area. If that proposition is indeed put forward, that the place of work has to be one building, I must say that I see no basis for accepting it. The only authority cited to us was the case of Dakyns v Pace [1948] 1 KB 22. So far as that judgment of Hilbery J is relevant, in my view it tells against the proposition and in favour of the view that, where one’s work requires one to leave, as it were, one’s base and, in the course of the work, to travel to a number of places in a surrounding area, that surrounding area can be a place of work for the purposes of this statutory provision. I think that is right. It is in each case a question of fact and degree. Then it is contended that, at least, the fact that the work is carried out not in one particular building but at various places makes it less easy to find that there is a place of work consisting of an area. It may be so. It is a question of fact and degree and I see no reason to find that the learned judge has erred in any way here in the conclusion that he reached on the question of fact and degree on the evidence in this case. There were two other factors on which counsel for the plaintiffs particularly relied supporting his submission that, in this case, the judge was wrong in holding that there was a place of work and that, if there was a place of work, that place was what he called the SW6 area. One of those factors was that the evidence of the first defendant showed that she worked also in other places outside the SW6 area; for example, she worked abroad in Spain when she went on holiday for perhaps two months of the year. When she was there she did some work, combining business with pleasure. Also, her evidence showed, when one looks at the notes of the evidence, that her work took her to a shop in Oxford Circus outside the SW6 area and perhaps elsewhere outside that area. That, in my judgment, is a factor on the question of fact and degree. It is for the judge to assess on the evidence whether and to what extent the carrying out of work at a place or places which are outside the claimed area of place of work prevents the claimed area from being the place of work for the purposes of the Act. The other of the two factors relied upon by counsel for the plaintiffs in his submission on this aspect was that Miss Stone, as she said in her evidence, did some of her work at home. Counsel submitted that, in so far as the work was done at home, it could equally well be done at home in Friern Road in East Dulwich as at Mirabel Road in West Fulham. Again, that, I should have thought, was a relevant factor and might, in some cases, be an important factor depending, no doubt, in some degree at any rate on the extent, or proportion, to which the work was done at home as compared with doing it, using the home as a base and going to other places outside the home. The fact that some work is done at home is no more than one possible relevant factor, and I see no reason to doubt that the learned judge had his mind directed by counsel’s argument to that factor so far as it ought to be thought relevant on the evidence here. I see no reason to think that the judge misdirected himself or to fault his conclusion on that question of fact. Then it was said by counsel for the plaintiffs that, on the evidence here, the judge ought to have taken the view, and that this court ought to take the view, that, if there could be more than one place of work, it ought to be regarded as the defendant having had no less than four places of work. One was the place where she gets her commissions, that is where her customers are to whom she goes, the majority of whom, according to the evidence, were in SW6, but some may have been elsewhere. Any place outside the SW6 area where she happened to see a customer and get a commission, counsel suggests, would be another place of work for the purposes of this statutory provision. Another was at home, because she did some of her work at home and another place of work was abroad, because when she went on holiday she did some work in Spain. 80 I am quite unable to accept that, on the ordinary and sensible construction of this Act and on the evidence as it was in this case, it can properly be regarded as there being four places of work which are relevant for the provisions of the Act. The relevant place of work, the judge found and was entitled to find for the purposes of this provision, was the SW6 area. It would follow that the various submissions which counsel elaborated, referable to the proposition that there were here four places of work, do not arise. His submission was that the judge misdirected himself because, there being four places of work, the judge ought to have taken into account the question of the proximity of the alternative accommodation to each one of those alternative places of work. Whether the learned judge was invited by counsel in submissions made to him to consider that matter I do not know. The fact that, in this careful judgment, that submission has not been referred to would make me wonder whether it had been made clear to the learned judge. If it were not, it would not be open in this court properly to criticise the judge for having misdirected himself in respect of a way of putting the case which had not been put to the judge. But let me assume in favour of the plaintiffs that it was put to the judge: he was, I think, right and entitled and, indeed, on the evidence before him, bound to reject it, because there was not here more than one relevant place of work for the purposes of this statute on the evidence as it stood. The final submission which counsel for the plaintiffs made was that, if he is wrong on all the other matters, nevertheless accommodation in East Dulwich could not properly have been held by the judge not to have been reasonably suitable to the needs of the first defendant as regards her place of work, the place of work being accepted for this purpose as the SW6 area. On that submission I would simply say that I have no hesitation in agreeing with the judge’s view. I therefore think that the plaintiffs fail to show that the judge was wrong in holding that the offered alternative accommodation in Friern Road did not fulfil the requirements of the Act. Therefore, the appeal must fail on that ground. I should add, however, that, as I see it, whether or not either of the parties desired to raise the point, it would have been impossible for this court to do as the plaintiffs asked in their notice of appeal: that is, to make an order for possession on the ground that suitable accommodation had been offered. The judge did not have to consider whether he could make such an order or, if he could, what form such order would take. It may be that he could have adjourned the proceedings. In the circumstances I do not desire to go into this matter at length, but the Friern Road accommodation was unquestionably not suitable in the condition in which it was when the judge at the hearing was asked to make an order for possession on the basis of an offer of suitable alternative accommodation. Quite apart from any other objections the accommodation offered in Friern Road had been in a state of disrepair. This is what the judge said about it at p 4 of the judgment: With regard to the flat in Friern Road, I think it was accepted by the plaintiffs–if not, I find–that that accommodation is not fit for occupation until certain work has been carried out to it. In other words, the flat is not available for occupation at the present time. I will have more to say about this at a later stage. Then at p 5 of the judgment, the judge said: The flat has been unoccupied for at least a year and probably a good deal longer than this. It is damp; fungus is present; and there is a large structural crack in one of the walls. I accept that the plaintiffs have offered to carry out such work to the premises as is reasonably required by the first defendant. She expressed the view, when giving evidence, that work more extensive than mere decorative work is required to render the premises fit to live in. I accept that. I was not told how long such work would take to carry out, but I infer from the evidence that it would be quite a considerable time. The most that the judge could have done, if he could have done so, would have been to make a future and conditional order, conditional upon the repairs being done presumably within some stated time, and the maisonette having by then been put into a condition in which it would objectively have been regarded as suitable. There are, no doubt, cases where, although the offered accommodation is not immediately available, the judge can properly make an order to take effect at a future date. Whether the judge could or should have found it possible to take such a course on the facts as they were before him, and the facts that remain unknown, on the evidence in this case I do not need to speculate. But, so far as this court is concerned, it is clear that, even if the plaintiffs had succeeded on every other issue in the appeal, we could not properly have made the order asked in the notice of motion and the notice of appeal–a simple order for possession. I doubt whether we could properly have done more than, if we could have done so much as, to remit the action to the judge for a further hearing, leaving it to him to decide, possibly on further evidence, what order, if any, he could make. But, as the appeal, in my judgment, fails on the ground which I have mentioned, I do not find it necessary to pursue that matter further. Agreeing BRANDON LJ said: I would like to add a few words with regard to the true meaning and effect of paragraph 5(1) of Part IV of Schedule 15 to the Rent Act 1977. That paragraph provides: 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 . . . . It was argued by Mr Fernyhough, on behalf of the appellants, that, in considering reasonable suitability to the needs of the tenant as regards proximity to place of work, the court should look only at the distance between the proposed alternative accommodation and the tenant’s place of work, and that it was irrelevant that, although the distance might be such-and-such, the journey from the one to the other involved very considerable time and possibly the use of more than one form of transport. In my view, to interpret this provision as referring only to distance as the crow flies would be absurd. The proper way to interpret the provision is to construe proximity and suitability in a commonsense way, taking into account not only what the distance is along such routes as are available but the means of transport available to the tenant concerned and the amount of time and the degree of inconvenience involved in making the journey. So, in the present case, it would be right for the judge to consider, as anyone who knows this area at all well would know, that it would be impossible for the first defendant to travel from the proposed alternative accommodation to her place of work or the other way without either using two buses, or a train and a bus, or two trains, and occupying a time certainly as much as an hour and perhaps considerably more than an hour on occasions. It seems to me that these are all matters which have to be taken into account when applying this provision in a commonsense way and that any judge who did not approach the matter in that way would be in error. It seems to me that the judge in this case must have taken into account the reality of the matter: that is to say, how the first defendant would have to go from the one place to the other, what means she would have to use, how long it would take her and how inconvenient it might be. In arriving at his conclusion he took those matters into account and it seems to me that he was fully justified in reaching the conclusion that he did. OLIVER LJ also agreed. The appeal was dismissed with costs. The respondent being legally aided, legal aid taxation was ordered.