Jones v Cleanthi

This is an appeal by Mrs Elizabeth Jones, the claimant in the action, against an order made by Bell J on 6 December 2005 dismissing her appeal against an order made by HHJ Simpkiss, in the Brighton County Court, on 22 April 2005.

Mrs Jones is tenant of Flat 10A, 41 Kings Road, Brighton under a 99-year Lease dated 19 March 1979 and made between the then freeholder of the building at 41 Kings Road and a predecessor in title of Mrs Jones as tenant (“the Lease”). The defendant in the action is Mr Christos Cleanthi, who now owns the freehold reversion in the building. In the action, Mrs Jones seeks declaratory and injunctive relief against Mr Cleanthi to enforce certain rights in the nature of easements granted by the Lease, viz. rights for the tenant for the time being under the Lease and his or her servants and visitors to use the communal refuse bins in an area at the rear of the building (“the rear area”), coupled with a right of access to the rear area for that purpose via the common parts in the building.

It is common ground that the rights in question were expressly granted by the Lease. It is also common ground that in 1995 Mr Cleanthi’s immediate predecessor in title, Mr Derek Burt, erected a wall across a passage on the ground floor of the building leading to the rear area, thereby blocking off all access by residents of flats in the building to the rear area, and to the communal refuse bins which had previously been kept there; and that he did so pursuant to a notice served on him by Brighton Borough Council, as local housing authority, under section 352 of the Housing Act 1985 (as amended) (“the 1985 Act”) requiring him to do so in order to maintain adequate fire precautions in the building.

Mr Cleanthi (who acquired the freehold of the building in November 2003) contends by way of defence to Mrs Jones’ claim that by virtue of the section 352 notice Mr Burt was under a statutory duty to erect the wall; and that by operation of law his performance of that statutory duty extinguished once and for all Mrs Jones’ right of access to the rear area and her right to use the communal refuse bins. Alternatively, if (contrary to his primary contention) those rights were not extinguished once and for all, Mr Cleanthi relies on the existence of the alleged statutory duty for the contention that in erecting the wall Mr Burt committed no actionable interference with Mrs Jones’ rights. In the further alternative, Mr Cleanthi contends that even if by reason of his erection of the wall Mr Burt became liable to Mrs Jones for having interfered with her rights, he (Mr Cleanthi) is under no such liability.

Before Judge Simpkiss there were three issues: (1) had the rights in question been extinguished once and for all by the erection of the wall; and if not, (2) had there been an interference with those rights which was actionable at the suit of Mrs Jones against Mr Cleanthi, and (3) what relief (if any) should be granted on Mrs Jones’ claim. On the first issue, Judge Simpkiss accepted Mr Cleanthi’s case based on the existence of a statutory duty and held that the erection of the wall pursuant to the section 352 notice had extinguished the rights in question once and for all. Accordingly, it was not necessary for Judge Simpkiss to consider the other two issues. He did, however, observe that there would in any event have been a problem about granting injunctive relief in that since 1995 one of two shops on the ground floor of the building had been relet, and the current lessee was not a party to the action.

Accordingly, by his order dated 22 April 2005 Judge Simpkiss dismissed Mrs Jones’ claim.

On Mrs Jones’ appeal to the High Court, Bell J upheld Judge Simpkiss’ decision on the first issue (extinguishment). However, he went on to say that had he held that the rights had not been extinguished he would in any event have held that the fact that the wall was erected pursuant to a statutory duty was a good defence to Mrs Jones’ claim; and that in those circumstances he would not have granted declaratory relief.

Mrs Jones now appeals to this court. Permission for a second appeal was granted by Jacob LJ on the papers on 14 February 2006.

I begin by turning to the relevant provisions of the 1985 Act, which are to be found in Part XI of the Act.

Part XI (which comprises sections 345 to 400) deals with houses in multiple occupation, that is to say (according to the amended definition) “house[s] which [are] occupied by persons who do not form a single household” (see section 345(1)). It is common ground that the building at 41 Kings Road falls within this definition.

Part XI was substantially amended by the Local Government Act 1989 (“the 1989 Act”): see in particular section 165(1)(a) of the 1989 Act and Part III of Schedule 9 to that Act.

As originally enacted, section 352 gave a housing authority power to serve a works notice where a house in multiple occupation was defective as regards lighting, ventilation, water supply and other sanitary matters. The 1989 Act brought fire safety within the scope of section 352 for the first time.

The whole of Part XI was repealed with effect from 6 April 2006 by the Housing Act 2004, which substitutes a new regime of licensing for houses in multiple occupation with provisions for enforcement by way of improvement, prohibition and hazard awareness orders. However, the repeal of Part XI does not affect the issues which fall for decision in this case. For the purposes of this case, the relevant statutory provisions are to be found in Part XI of the 1985 Act as amended by the 1989 Act. Accordingly, references hereafter in this judgment to sections of the 1985 Act are references to those sections as amended by the 1989 Act.

I turn, then, to the relevant sections.

Sections 352 to 357 are headed: “Fitness for the number of occupants”.

Section 352 provides as follows (so far as material):

“352 Power to require execution of works to render premises fit for a number of occupants

(1)

Subject to section 365 the local housing authority may serve a notice under this section where, in the opinion of the authority, a house in multiple occupation fails to meet one or more of the requirements of paragraphs (a) to (e) of subsection (1A) and, having regard to the number of individuals or households or both for the time being accommodated on the premises, by reason of that failure the premises are not reasonably suitable for occupation by those individuals or households.

(1A) The requirements in respect of a house in multiple occupation referred to in subsection (1) are the following, that is to say –

….

(d)

subject to section 365, there are adequate means of escape from fire; and

(e)

there are adequate other fire precautions.

(2)

…. the notice shall specify the works which in the opinion of the authority are required for rendering the house reasonably suitable –

(a)

for occupation by the individuals and households for the time being accommodated there, or

(b)

for a smaller number of individuals or households and the number of individuals or households, or both, which, in the opinion of the authority, the house could reasonably accommodate if the works were carried out

but the notice shall not specify any works to any premises outside the house.

(2A) ….

(3)

The notice may be served –

(a)

on the person having control of the house, or

(b)

on the person managing the house;

and the authority shall inform any other person who is to their knowledge an owner, lessee, occupier or mortgagee of the house of the fact that the notice has been served

(4)

The notice shall require the person on whom it is served to execute the words specified in the notice as follows, namely:

(a)

to begin those works not later than a reasonable date …; and

(b)

to complete those works within such reasonable period as is so specified.

(5)

….

(5A) A notice served under this section is a local land charge.

….”

Section 398(5) defines “person having control” as including the person who receives the rack-rent of the premises. Section 398(6) defines “person managing” as meaning (for present purposes) “the person who, being an owner or lessee of the premises … receives … rents or other payments from persons who are tenants of parts of the premises …”. Section 398(3) defines “owner” as meaning “a person (other than a mortgagee not in possession) who is for the time being entitled to dispose of the freehold interest of the premises whether in possession or in reversion” and as including “a person holding or entitled to the rents and profits of the premises under a lease having an unexpired term exceeding three years”.

A notice under section 352 must be in a prescribed form which informs the person on whom it is served of (among other things) the right of appeal conferred by section 353.

Section 353(2)(a) gives a person on whom a notice is served under section 352, or any person who is an owner, lessee of mortgagee of the premises to which the notice relates, a right of appeal on the ground (among others):

“… that the condition of the premises did not justify the authority, having regard to the requirements set out in subsection (1A) of that section, in requiring the execution of the works specified in the notice”.

Section 353(4) provides that if on an appeal the court is satisfied that the number of persons living in the premises has been reduced and that adequate steps have been taken to prevent that number being again increased, the court may if it thinks fit revoke the notice or vary the list of works specified in the notice.

Section 365 empowers a local housing authority in certain circumstances to accept an undertaking or to make a closing order as an alternative to serving a notice under section 352.

Section 369 empowers the Secretary of State to make regulations providing a code of management of houses in multiple occupation. Such regulations may require the “person managing” the house to (among other things) “make satisfactory arrangements for the disposal of refuse and litter from the house”.

Section 375 provides as follows (so far as material):

“375 Carrying out of works by local housing authority

(1)

If a notice under section 352 … is not complied with, the local housing authority may themselves do the work required by the notice.

(2)

Compliance with a notice means beginning and completing the works specified in the notice –

(a)

if no appeal is brought against the notice, not later than such date and within such period as is specified in the notice;

(b)

if an appeal is brought against the notice and is not withdrawn, not later than such date and within such period as may be fixed by the court hearing the appeal; and

(c)

if an appeal brought against the notice is withdrawn, not later than the twenty-first day after withdrawal of the appeal and within such period (beginning on the twenty-first day) as is specified in the notice.

….”

Section 376 contains summary penal sanctions against a person on whom a section 352 notice has been served who wilfully fails to comply with the notice, and references in that section to “compliance” are to be construed in accordance with section 375(2) (above).

Section 377 provides as follows (so far as material):

“377 Powers of the court to facilitate execution of works, etc

(1)

Where –

(a)

a person is required by a notice under section 352 … to execute works and

(b)

another person having an estate or interest in the premises unreasonably refuses to give a consent required to enable the works to be executed,

the person required to execute the works may apply to the county court and the court may give the necessary consent in place of that other person.

(2)

If a person, after receiving notice of the intended action –

(a)

being the occupier of premises, prevents the owner or his officers, agents, servants or workmen, from carrying into effect with respect to the premises any of the preceding provisions of this Part, or

(b)

being the owner or occupier of the premises, prevents an officer, agent, servant or workman of the local housing authority from so doing,

a magistrates’ court may order him to permit to be done on the premises all things requisite for carrying into effect those provisions.

(3)

A person who fails to comply with an order of the court under subsection (2) commits a summary offence and is liable on conviction to a fine not exceeding level 5 on the standard scale.”

I can now return to the facts as admitted or as found by Judge Simpkiss.

41 Kings Road consists of a basement, ground floor, and five upper floors. The upper floors have been converted into thirteen residential flats. Mrs Jones’ flat, number 10A, is on the fifth floor. In 1994 and 1995 (when the events with which the action is concerned took place) the freeholder of the building was Mr Burt. He transferred the freehold to Mr Cleanthi in November 2003.

Judge Simpkiss described the geography of the building as follows (in paragraph 3 of his judgment):

“The building fronts Kings Road. On the ground floor there are two shops: the east shop and the west shop. Originally the east shop extended to the rear of the building. Entrance to the building is and has always been through a door in the middle of the frontage between the east and west shops. From the door, there is a hallway which runs through the building, or at least it did, until its blockage by the construction of the wall which is the subject of this dispute. The hall goes right through to the rear of the building. About half-way along the hallway is a narrow staircase and a lift-shaft which provides access to the 13 flats in the building on six floors. Beyond the lift there is a staircase into the basement of the building and beyond that a door into the rear area. To the right of this door is another door into a storeroom at the rear of the east shop. Originally, there was no access from the west shop into the common parts of the building, but there is now a door between the rear of the west shop and the corridor just before the rear door leading into the rear area. The rear area itself is very narrow and mostly taken up with a metal fire escape running from the top of the building. This had clearly been in place for many years and was certainly in place when Mrs Jones purchased the flat 10A and when the lease was granted. Mrs Jones exhibited a schedule setting out the planning history of the building. This shows that during the period no planning permission has been granted to open up any access between the rear of the west shop and the store behind the east shop (“the store”). Mrs Jones says that when she bought her flat in 1986 there was a wall between the west shop and the hallway and there was also a doorway which allowed access from the west shop into the hall and then into the store. She asserts, as appears to be the case, that no express planning permission was granted for this doorway but, as this happened many years ago, I am only concerned with whether the door existed. It also appears that the stairs into the basement were moved at some time long ago. Since the building of the wall which is the subject of this dispute in 1995, the panelling of the wall separating the west shop from the rear hallway has been removed, exposing the wooden beams, and the area of the hall between the store and the west shop has in practice been incorporated into the shop. Mr Burt gave evidence. He said that he could not remember when the panelling was removed, but thought it was probably within two years after 1995. He said that the hallway was not retail space, although goods for sale in the shop were clearly stored in it. ….”

Prior to 1995 the corridor to which Judge Simpkiss refers was also used to access the basement of the building, which was used as a storage area in conjunction with the west shop.

The Lease granted the following rights:

(1)

“the use (in common with the Lessor and the owners and occupiers of other flats in the Building and all other persons who may now or hereafter become entitled thereto) of the communal refuse bins in [the rear area]”; and

(2)

“[t]he right for the Lessee his servants and visitors to use in common with the Lessor the owners and occupiers of any other part of the Building and their visitors and all other persons who are now or may become entitled thereto such steps staircases halls paths forecourts landings and passages and the lift forming part of the Building as afford access to and egress from the Flat and the refuse bins”.

The leases of the other flats in the building contained similar grants.

There is a history of litigation between Mrs Jones and Mr Burt, and before Judge Simpkiss it was suggested to Mrs Jones in cross-examination on behalf of Mr Cleanthi that in resorting to litigation on so many occasions she was acting unreasonably and, by implication, irrationally. Judge Simpkiss rejected that suggestion, commenting that Mrs Jones had clearly experienced little or none of the care that a landlord should show towards his tenants, and that she had had to resort to litigation in order to obtain any reasonable response from Mr Burt. He continued (in paragraph 4 of his judgment):

“I am fully satisfied that Mrs Jones’ actions have been taken pursuant to a genuine desire to stand up for her entitlement as lessee and that she has been provoked into doing this by Mr Burt, whose approach throughout has been to do as little as he could get away with towards complying with his obligations as lessor and has regarded Mrs Jones as a thorn in his side because she stands up for herself. I find that the criticism of Mrs Jones is unfair and does not reflect the genuineness and merit of her current claim, which I will judge on the evidence and law. The fact that she was cross-examined in this way does, however, reflect to an extent on the way that Mrs Jones’ genuine concerns have been responded to both by Mr Burt and by the defendant.”

Judge Simpkiss went on to find that prior to the erection of the wall refuse bins were kept in the rear area, into which the residents of the flats put their rubbish, and that the rubbish was collected on a weekly basis. Prior to 1989 the dustmen would collect the rubbish directly from the rear area, but from 1989 onwards rubbish was collected only from Kings Road (that is to say, from the front of the building), which meant that the bins had to be placed outside the front of the building to await collection. However, Judge Simpkiss found that from 1989 until the wall was built some use was made of the rear area by residents.

In March 1990 Mr Burt proposed that the rear area should no longer be accessible to residents, and he threatened to change the lock on the door leading to the rear area. Mrs Jones and a number of other residents objected to this, on the ground that they had nowhere else to put their rubbish. Judge Simpkiss accepted Mrs Jones’ evidence that by this time Mr Burt was “determined to close the access to lessees” (i.e. to residents). He found that Mr Burt went ahead with his plan to block the access, restoring it only on receipt of a solicitor’s letter.

In 1992 Mrs Jones moved out of her flat and sublet it to students. Judge Simpkiss found that she did so as a result of the difficulties she was having with Mr Burt. She did not resume occupation of her flat until early 2003.

On 4 November 1994 Mr Burt wrote to the lessees (including Mrs Jones) reporting that the fire officer had inspected the building and that he had made recommendations “as per the enclosed schedule”, and saying that he proposed to instruct his surveyor to prepare a specification and to obtain estimates for the work. The schedule which he enclosed was a copy of the specification which subsequently accompanied the section 352 notice. Mr Burt did not enclose any plans with his letter.

By the section 352 notice dated 28 November 1994 Brighton Borough Council, as local housing authority, notified Mr Burt that in its opinion the building failed to meet the requirements of the 1985 Act that there should be adequate means of escape from the building in case of fire and otherwise that there should be adequate other fire precautions, and required him to carry out certain specified works including the erection of a wall across the hallway in place of the door giving onto the rear area, such wall to be made of a material which would resist fire for at least one hour.

We are told by Mr Timothy Fancourt QC (leading Mr Tom Weekes, for Mr Cleanthi) that it was the proximity of retail to residential use which was considered by the Council to create a fire hazard and which led the Council to require that access from the common parts to the rear area be blocked off.

The section 352 notice reads as follows:

“HOUSING ACT 1985

SECTION 352

NOTICE TO EXECUTE WORKS TO MAKE A HOUSE IN

MULTIPLE OCCUPATION FIT FOR NUMBER OF OCCUPANTS

To: Mr Derek John Charles Burt

of: 41 Kings Road, Brighton

Schedule 2 to the notice contained a specification of the works to be carried out (in the terms of the specification which Mr Burt had previously sent to the lessees), including (at paragraph 1.6):

“Separate the ground floor shop storage area from the staircase by fire resisting materials of at least one hour”.

Plans were also enclosed with the notice, including a plan of the ground floor. The plan of the ground floor shows a line across the hallway blocking access to the rear area, with a figure ‘60’ written on it (presumably a reference to the one hour fire-resistant material of which the wall was to be constructed).

Mrs Jones accepts that she received a copy of the section 352 notice and the schedules to it, together with a plan of her flat. She did not recall seeing a plan of the ground floor. However, Judge Simpkiss found that it was more likely that she did receive the plan of the ground floor, although he was at pains to describe her as “an honest and impressive witness who was not prepared to let her landlord walk over her”. He was also satisfied that if she had realised that access to the rear area was going to be blocked off, she would have reacted. He went on to find (in paragraph 8 of his judgment) that:

“… a reasonable lessee such as Mrs Jones would not have known from the documentation that the access to the rear area was going to be blocked off”,

and that the documents did not make this at all clear to the layman. Having examined the documentation, I can well understand why Judge Simpkiss reached that conclusion. That said, however, at no stage has it been alleged on behalf of Mrs Jones that the section 352 notice was other than valid and effective according to its terms.

Judge Simpkiss continued (in paragraph 8 of his judgment):

“Nor did Mr Burt help matters. His letter to Mrs Jones and the other lessees of 4 November 1994, which I am satisfied enclosed the fire officer’s specification but did not attach the plans, does not draw to their attention the fact that the easements granted to them under the lease would cease to be exercisable.”

In January 1995 Mr Burt wrote again to the lessees, referring to a specification dated 25 November 1994 and to three estimates he had obtained for the works. He said that he proposed to accept the estimates and invited the lessees to comment. The specification made it clear that the works included the blocking off of the access to the rear area, and Mrs Jones accepted that had she received it she would have realised that that was going to happen and would have contacted the author of the specification (a Mr Draycott). However, the judge found that the specification was never sent to Mrs Jones or to the other lessees, and that Mr Burt did not inform the lessees in terms that access to the rear area would be blocked off.

In evidence, Mr Burt accepted that he had not informed the fire officer or the Council of the existence of rights of access by the lessees to the rear area. His evidence was that the fire officer and the Council were simply unaware of the existence of those rights.

In early 1995 the wall was built, pursuant to the section 352 notice, and access by residents to the rear area was thereby completely blocked off.

Judge Simpkiss found that Mrs Jones was unaware of the erection of the wall, and could not reasonably have become aware of it until she moved back into her flat in early 2003. He also found that Mr Burt had deliberately refrained from making any serious effort to tell her about it “as he wished to downplay the effect of the works so as to avoid the fuss that would inevitably have been made by her if he had”. Mr Burt was at this time in occupation of both the shops on the ground floor, and the judge found that it was to his advantage to have the access blocked off. However, Judge Simpkiss made no finding as to whether that formed part of his motive in not telling Mrs Jones in terms about the erection of the wall.

What happened thereafter is recorded by Judge Simpkiss in paragraphs 11 to 13 of his judgment, as follows:

“11.

Following the construction of the wall, the area between the wall and rear door was incorporated into the west shop. Mrs Jones gave up her flat in the autumn of 2002 and moved back at the beginning of 2003. Shortly after moving in, she asked Mr Burt about rubbish because the 13 flats in the building were small and rubbish collections happened weekly. The absence of anywhere to put the bags during the week had become a problem. Mrs Jones said that Mr Burt did not care what happened to the rubbish, and that was the impression that I got of him. As a result, bags tended to accumulate in the common parts, such as the hallways, of the building. Various attempts had been made to find a solution to this problem, and the failure to resolve it has led to Mrs Jones issuing these proceedings.

12.

On 24^th June 2003, Mr Burt granted a lease of the west shop to his daughter, Teresa Ann Walker. The term was for 15 years from 1^st April 2003, at an annual rent of £10,000 but at no premium. The demise incorporates the whole of the hallway blocked off by the wall built in 1995. On 17^th December 2003 the defendant was registered as freeholder of the building, subject to the lease of the various flats, including Mrs Jones’ lease of flat 10A. When he became freeholder of the building is not at all clear. The defendant says that he became freeholder in November 2003. At that stage he was a lessee of three flats in the building, although he sub-let these and never occupied the building himself. He first became a leaseholder in July 1997. His purchase of the freehold was through the enfranchisement procedure and with the support of the majority of the leaseholders, including Mrs Jones. These proceedings were issued on 20^th August 2003 against Mr Burt, and by order of 15^th October 2003, Mr Cleanthi was substituted as a defendant. The transfer has never been produced and I am not told why he was substituted before the date when he says he became the freeholder. However, no one has suggested that anything turns in this matter.

13.

Mr Cleanthi was asked in cross-examination about its purchase. He said that he knew about Mrs Jones’ litigation and that she was claiming that the easement continued. He also said that he was well aware of the terms of the leases, being a lessee himself. He also took the view that he would be able to charge the lessees for any costs of this case under the service charge. That issue is not for decision by me, but I would be surprised if he was able to do this. He further says that he has no indemnity from Mr Burt and that he decided to purchase the freehold as it was. He could not remember if he had had any legal advice.”

Lastly, so far as the facts are concerned, I must refer to two letters from Mr Nigel Divers, Senior Environmental Health Officer of the Council (which had by then become Brighton & Hove City Council), to Mrs Jones’ solicitors. I refer first to a letter from Mr Divers to Mrs Jones’ solicitors dated 22 June 2004. In that letter, Mr Divers indicated a willingness on the part of the Council to discuss what arrangements might be made for the storage of refuse in the rear area, consistent with the maintenance of adequate fire precautions in the building. One of the possibilities which he listed in his letter was the insertion of a fire-resistant door and frame in the wall erected by Mr Burt. However, in a later letter (dated 1 February 2005) Mr Divers stated that to reinstate the rear area as a refuse bin area would in his opinion create a fire hazard.

As stated earlier, Mrs Jones claims a declaration as to the continuing existence of the rights in question, and an injunction preventing the defendant (the original defendant being Mr Burt) from interfering with them.

By his Defence, Mr Cleanthi admits that Mrs Jones’ lease granted the rights claimed. He also admits and avers (by paragraph 4.2.5) that the erection of the wall prevented residents from using the rear area and thus from using the refuse bins, and “that there was no realistic prospect that such use would, in the foreseeable future, resume”. Relying on the fact that in erecting the wall Mr Burt was acting pursuant to the section 352 notice, he asserts that Mrs Jones’ rights were thereby extinguished. He goes on to deny that he has done anything to interfere with the easements. He further denies that the erection of the wall was unlawful, asserting that Mr Burt was “required by law to undertake such work”. He accordingly denies that Mrs Jones is entitled to the relief claimed. Alternatively, he invites the court to exercise its discretion by refusing injunctive relief on grounds of (among other things) delay by Mrs Jones in bringing her claim. He also relies, as a ground for refusing injunctive relief, on the fact that Ms Walker (the current tenant of the west shop) is not a party to the action.

By her Reply, Mrs Jones accepts that an easement may be extinguished by statutory implication, but contends that in the instant case Mr Burt should have made all reasonable endeavours to provide for alternative means of refuse disposal by residents and/or the installation of fire protection measures which were both acceptable to the Council and which preserved access for residents to the rear area. She goes on to plead a letter from the Council dated 21 April 1994 from which (as she asserts) it is clear that had the Council known of the residents’ easements in relation to the rear area they would have undertaken a wider consultation before serving a section 352 notice requiring access to the rear area to be blocked off. She alleges that Mr Burt merely acquiesced in the section 352 notice since the erection of the wall enhanced his commercial interest in the retail shops on the ground floor (a reference to his use of the rear area as part of the shop on the western side).

It is to be noted that Mrs Jones’ pleadings proceed on the footing that the section 352 notice was valid and effective according to its terms. Nor (as I mentioned in paragraph 42 above) was the contrary suggested on behalf of Mrs Jones in either of the courts below.

Brighton County Court appointed a single joint expert, a Mr Todd of C. S. Todd & Associates Ltd, surveyors, of Farnham, Surrey. In February 2005 Mr Todd provided a written report to the court. In answer to the question whether the effect of the section 352 notice was to “require” the erection of the wall (a question which was in my judgment for the court, rather than an expert, to answer), he concluded that it was. Asked whether if a door were inserted in the wall there would still be adequate fire precautions in the building, he was more equivocal, but concluded that there would not. In Part 2 of his report (“Executive Summary”), he said this:

“2.7

I am also required by the instructing parties to give an opinion as to whether replacement of the said wall by a door and the reinstatement of [the rear area] for the storage of refuse would, for the relevant purposes of [the 1985 Act] and any other material provisions or regulations, mean that the property would not have adequate means of fire escape or adequate other fire precautions. On this matter it is less possible to be unequivocal.

2.8

However, it is possible to assert that those proposed measures would, in practical terms, reduce the integrity of the fire separation between the retail premises and the residential premises, since the reliability of a door to resist the passage of fire and smoke is less than that of a solid wall of equivalent fire resistance. Moreover, the storage of refuse bins on the escape route from the base of the external fire escape stairway to a place of safety would create a hazard as a result of their potential for ignition and the obstruction that they could create.

2.9

It can be further asserted that, in consequence of the above, the measures on which I am asked to advise would conflict with recognized guidance on fire precautions in houses in multiple occupation, conflict with two recognized principles of fire safety and would result in a lowering of the standard of fire precautions.”

In Part 6 of his report (“Conclusions”) Mr Todd said this:

“6.6

Ultimately, of course, compliance with legislation is a matter on which only the courts can decide. However, on balance, given the two, quite distinct, aspects in which fire precautions would be reduced, at least to some extent, it is my opinion that the measures to which my instructions refer for the purpose of reinstatement of the [rear area] would result in fire precautions that would be inadequate for the protection of the occupants of 41 Kings Road and that are required under section 352 of the [1985 Act].”

As noted earlier, there were three issues before Judge Simpkiss, the first of which was whether in the events which had happened Mrs Jones’ rights in relation to the rear area and the refuse bins had been extinguished. Addressing that issue, Judge Simpkiss began by concluding (as had the court appointed expert) that by virtue of the section 352 notice Mr Burt came under a statutory obligation to carry out the works specified in the notice.

The judge then referred to the decision of Fry J in Yarmouth Corporation v. Simmonds [1878] 10 Ch D 518, a decision on which Mr Weekes (for Cleanthi) strongly relied. In that case, the Corporation had constructed a pier under the authority of an order made pursuant to statute, and the pier when erected prevented access by the public to the beach at that point. The defendant (with others) claimed that the public had a right of way to and from the beach at that point, and threatened to dismantle part of the pier. The Corporation sued for a perpetual injunction. The defendant pleaded the existence of the public right of way and counterclaimed for injunctive relief. Fry J granted a perpetual injunction as sought by the Corporation, and dismissed the counterclaim. He held that where a statute “clearly and distinctly authorises the doing of a thing which is physically inconsistent with the continuance of an existing right, the right has gone because the thing cannot be done without abrogating the right”. I shall return to this authority later in this judgment.

Judge Simpkiss then turned to authorities relied on by Mr Clifford Darton (for Mrs Jones), viz. Newby v. Sharpe [1878] Ch D 36 and Budd-Scott v. Daniel [1902] 2 KB 351. He distinguished both those authorities. He continued (in paragraphs 24 and 25 of his judgment):

“24.

This leaves the question whether the s.352 notice put the lessor under a statutory obligation to build the wall, thereby making it inevitable that the easement of access would be obstructed absolutely. In my judgement, having regard to Mr Todd’s opinion as set out above, it did. I therefore hold that the easement of access from the hallway to the rear area has been extinguished.

25.

Mr Darton also argued that the statutory framework may have provided for a notice to be served on Mr Burt as lessor and managing agent, but it did not give him power to execute the works if it was outwith his power to do so. The remedy for Mr Burt in this situation was to appeal the notice on the ground that he could not carry out the works because to do so would interfere with the easement. This would lead to notice being served on the lessees, who could then argue whether there was an alternative, I would have more sympathy with this argument if the works required access to Mrs Jones’ flat, of which the lessees had exclusive possession, but in any case that would not be consistent with the Budd Scott v Daniel decision. The works required in the present case did not involve entering the demised premises; they merely interfered with an easement.”

Judge Simpkiss concluded his judgment as follows (in paragraph 26):

“26.

Having regard to my decision above, it is not necessary for me to consider the other issues of law raised in this case. If the easement had not been extinguished, then a question would have arisen whether Mrs Jones could obtain an injunction reinstating it. There is a problem with this because to remove the wall would affect Mrs Walker’s lease of the west shop. Mrs Walker is not a party, although this point was raised in the defence and has been raised since. Mr Darton accepted in his final submissions that at this stage he was now only asking for a declaration that the rights existed and had been unlawfully interfered with. Nor could I have made any findings about Mrs Walker’s knowledge of the easement without her being a party. She may have been able to advance a number of arguments in her defence. It would not have been appropriate for me to make any order affecting her, even subject to her having a right to reply absent her being a party.”

Addressing the first issue (extinguishment), Bell J said this (in paragraphs 49 to 52 of his judgment):

“49.

Having considered all Mr Darton’s arguments, it seems to me to be important to keep in mind that there was no original contract between Mrs Jones on the one hand and Mr Cleanthi, or for that matter Mr Burt, on the other. So there is no question, in any event, of Mr Burt’s action, or failure to act by appealing, frustrating a contract he had made, and, even more so, there is no question of Mr Cleanthi frustrating a contract he had made. If there has been an obligation upon Mr Cleanthi at all at the time when he was substituted as defendant to Mrs Jones’ claim and since then, it must be because the obligation to allow access to refuse bins in the rear area was and is a burden which runs with the reversion and affects the assign of the reversion, namely Mr Cleanthi, for the benefit of the assign of the lease of Flat 10A, namely Mrs Jones: see, for instance, Manchester, Sheffield and Lincolnshire Railway Company v. Anderson [1898] 2 Ch.394, per Chitty L.J. at page 402.

50.

In this respect the obligation under the lease is, potentially at least, different from the public right of way or ancient lights in the cases of Yarmouth Corporation and [Emsley v. North Eastern Railway Co [1896] 1 Ch 418]. Those rights arose by what I might describe as “usage”, and so it is easy to understand how they might be extinguished by work done under statutory powers or in compliance with a statutory duty, which is inconsistent with the continuance or survival of the right. It is not so easy to see why a covenant which runs with the land is necessarily extinguished simply because it is presently impossible to comply with the covenant because of work which the landlord for the time being was obliged by statute to effect, and because of the present state of the premises as a result of the work, in this case the building of the wall. In such circumstances, the lack of current practical use of the easement may be a far cry from extinguishment, and the fair and sensible test seems to me to be whether there is no longer any practical possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the manner contemplated by the grant. The test of whether that has occurred must be a question of fact and degree in the particular circumstances of each case. This approach is supported by Huckvale and anor. v. Aegean Hotels Ltd (1989) 58 P. & C.R. 163, and particularly Nourse L.J. at pages 168 and 170, and Chitty on Contracts (29^th Edn) Vol.1, paragraphs 23-053.

51.

In the circumstances of this case, in my judgment, there is no longer any practical possibility of the easement in question benefiting Flat 10A. It is true that nearly seventy-four years remain on the lease of the flat; and that the wall which obstructs the use of the easement and the associated alterations to the ground floor of the house are but ten years old, and that the lease of the enlarged west shop to Mrs Walker has less than twelve years to run. However, it seems to me that there is no ground to suppose that, now the alterations have been made, they will ever be reversed to allow what was always the limited benefit of lessees of the flats depositing their rubbish at the rear of the property.

52.

In all these circumstances and for all these reasons I hold that the easement depending upon the covenant in Mrs Jones’ lease has been extinguished, and Mrs Jones’ appeal must, therefore, be dismissed.”

Bell J concluded his judgment by saying that had he reached a different view and held that the easement had not been extinguished he would have held that Mrs Jones has no present remedy in nuisance since the wall was erected pursuant to a statutory duty, and that in the absence of any other remedy declaratory relief should not be granted.

By grounds 1 to 3 of her grounds of appeal to this court Mrs Jones contends that Bell J was wrong to hold that her rights had been extinguished, and that he should have held that it remained extant following service of the section 352 notice since (i) the section 352 notice did not entitle him to break his contractual obligations to her or to interfere with her property rights, (ii) Mr Burt had the right to appeal against the notice, and (iii) Mr Burt could have applied to the court under section 377 for an order dispensing with Mrs Jones’ consent on the ground that it was being unreasonably withheld. She further contends that the provisions of the 1985 Act and of the section 352 notice were not inconsistent with the rights granted to her by the Lease since Mr Burt could have complied with section 352 notice by carrying out other work which did not interfere with those rights.

By ground 4 she contends that Bell J wrongly applied Yarmouth. By grounds 5 and 6 she contends that a statute will only operate so as to discharge a lessor from his contractual obligations to his lessee in circumstances where the statute frustrates the performance of the obligation; that the instant case is not such a case; and that in any event a lessor cannot rely on frustration which is self-induced. By ground 7 she contends that Bell J was wrong to conclude that assignees of a lease are not protected by the principles of frustration to the same extent as the parties to the original contract. By ground 8 she challenges Bell J’s finding that as a consequence of the erection of the wall there was no practical possibility of Mrs Jones’ rights being revived. By ground 9 she contends that Bell J ought to have had regard to the possibility of a change in the use of the building or in the fire regulations, and of improvement in fire safety equipment which might alter the Council’s view on the need to erect the wall.

For Mrs Jones, Mr Darton submits that the judgments in the courts below failed to observe what he describes as an important distinction between a statutory power and a statutory obligation. He submits that a statutory obligation to do a particular act does not necessarily carry with it a statutory power to do that act. He relies on Budd-Scott for the proposition that a landlord may be in breach of covenant notwithstanding that he has acted in performance of a statutory obligation. Seeking to distinguish Yarmouth, he submits that the 1985 Act does not “clearly and distinctly” authorise the doing of an act which is inconsistent with Mrs Jones’ rights.

Mr Darton relies on section 377(1)(b) of the 1985 Act as indicating in clear terms that a section 352 notice is not intended to override property rights of third parties save (possibly) in cases where (1) the third party is acting unreasonably in withholding consent to the carrying out of the works in question, and (2) the recipient of the notice has obtained a court order to that effect. He also relies on the existence of a right of appeal under section 353.

In support of grounds 4, 5 and 6 of Mrs Jones’ grounds of appeal, Mr Darton stresses that, besides creating property rights, a lease remains a contract. The consequence of that, he submits, is that even if the 1985 Act empowered Mr Burt to obstruct the exercise of Mrs Jones’ property rights, interference with those rights nevertheless constitute an actionable breach of contract unless it could be said that service of the section 352 notice operated as a frustrating event. However, on the facts of the instant case, he submits, the exercise of Mrs Jones’ rights was not frustrated since (among other things) Mr Burt brought about the service of the notice by his use of the ground floor for retail purposes. He further submits that Mr Burt ought to have appealed the notice, and that he could have complied with the notice by other means not involving an obstruction to the exercise of Mrs Jones’ rights. He also submits that the duration of Mrs Jones’ rights (the Lease expires in 2078) could extend long beyond the statutory requirements which led to the service of the section 352 notice.

In support of ground 7 of Mrs Jones’ grounds of appeal Mr Darton submits that on purchasing the freehold reversion in the building Mr Cleanthi became bound by the covenants in the Lease and liable for any continuing nuisance caused or permitted by his predecessor in title. He submits that obstruction caused by the presence of the wall is both a continuing breach of covenant and a continuing nuisance.

As to grounds 8 and 9 of the grounds of appeal, he submits, relying on Huckvale & Anor. v. Aegean Hotels Ltd (1989) 58 P & CR 163 CA, that so long as there is a possibility that circumstances may arise in the future which would allow for the exercise of Mrs Jones’ rights, those rights remain extant. He submits that on the facts found by Judge Simpkiss such circumstances were not merely possible but likely, in so far as the Council was willing to consider alternative fire precautions involving replacing the wall with a fire door.

Mr Fancourt submits that Part XI of the 1985 Act empowers a local housing authority to make orders overriding proprietary rights in the interest of fire safety. He notes, in this context, that a section 352 notice is registrable as a local land charge (see section 352(5A)). He submits that once works are carried out pursuant to a section 352 notice, they are to be treated as permanent.

Addressing the first issue (extinguishment), Mr Fancourt submits that an intention should be imputed to Parliament, in enacting the 1985 Act (and the 1989 Act), to extinguish rights the exercise of which would necessarily be inconsistent with the works to be done. He submits that works required by the section 352 notice were, by definition, strongly in the public interest; that they were permanent in nature; that they were wholly inconsistent with the exercise of Mrs Jones’ rights; and that the survival of Mrs Jones’ rights would leave inconsistent legal rights in existence, thereby creating undesirable legal uncertainty and a disincentive for the recipient of a section 352 notice to carry out and thereafter to maintain the works required by the notice.

Mr Fancourt submits that section 377(1) of the 1985 Act, when read in the context of the entirety of Part XI, was clearly intended to deal merely with ancillary practical matters such as the provision of access to enable the specified works to be carried out; and that it does not have the significance which Mr Darton sought to attach to it. He points out that section 377 does not purport to restrict the entitlement of a recipient of a section 352 notice to carry out the specified works or otherwise to define the circumstances in which he may do so lawfully.

He submits that Bell J rightly held that the statutory obligation to comply with the section 352 notice gave Mr Burt a statutory power to carry out the works, such that the reasoning in Yarmouth applies. On the fact of the instant case, he submits, a wall was reasonably necessary in order to provide fire safety; it was a permanent structure, and it wholly blocked access to the rear area. He submits that Bell J was also right to conclude that it makes no difference, so far as extinguishment is concerned, whether the right in question originated in contract or whether, for example, it arose by prescription; and that on the facts there was “no longer any practical possibility of the covenanted right ever again benefiting the dominant tenement”.

In any event, Mr Fancourt submits, in erecting the wall Mr Burt did not commit an actionable interference with Mrs Jones’ rights since in doing so he was discharging a statutory duty. Thus, he submits, even if Mrs Jones’ rights survived the erection of the wall, Mrs Jones had no cause of action against Mr Burt for interfering with those rights.

As to the position of Mr Cleanthi, Mr Fancourt submits that even if (contrary to his earlier submissions) Mrs Jones had a cause of action against Mr Burt arising from the erection of the wall, she has no such cause of action as against Mr Cleanthi unless it be established that Mr Cleanthi ought reasonably to have removed the wall. He points out that that has never been alleged against Mr Cleanthi, and he submits that in any event on the facts (and, for that matter, in the light of the court appointed expert’s report) such an allegation could not be maintained. He also points out that by the time Mr Cleanthi acquired the freehold reversion the west shop (including that part of the former passage which lies between the wall and the rear area) had been let to a third party. Accordingly it has never been in Mr Cleanthi’s power to remove the wall and reconstitute the passage.

So far as extinguishment is concerned, I begin by rejecting Mr Darton’s proposition that a statutory obligation does not necessarily imply a statutory power to perform that obligation. In my judgment, it plainly does. A statutory obligation goes further than a mere statutory power. In the former case, the act must be done: in the latter, it may be done. Where Parliament requires that an act be done, that is to say where it imposes an obligation on a person to do an act, it necessarily empowers that person to do the act.

In the instant case, Judge Simpkiss and Bell J were, in my judgment, clearly right to conclude that the section 352 notice imposed a statutory obligation on Mr Burt to carry out the specified works, including the erection of the wall. It must follow, in my judgment, that he had statutory power to do so. As Bell J succinctly put it (in paragraph 41 of his judgment):

“… a statutory obligation to carry out works necessarily involves a statutory power to do them.”

The question then is whether Mr Burt’s performance of that statutory obligation had the effect of extinguishing Mrs Jones’ rights once and for all. The starting-point in answering that question is the decision of Fry J in Yarmouth. I have already summarised the facts of that case (see paragraph 57 above). In the course of his judgment, Fry J said this (at p.526):

“It has been agreed that I shall try in the first place this question: Assuming the right asserted by the Defendants to have existed before the extraordinary provisions were passed under which the Plaintiffs claim, does that right still exist? In other words, has the right been taken away by the statutory powers conferred upon the Plaintiffs. I am of opinion that it has been so taken away.

The result of the construction of the pier was this, that, whereas persons had been in the habit of getting from the sea-wall at the end of Bank Street on to the shingle, there was now to be placed, on the very space which every person so doing had to pass, a permanent structure of planks through which persons could not pass. There was a physical impossibility in the persons who had exercised the alleged right continuing to exercise it in the manner in which they had previously done. The exercise of the right and the existence of the pier were absolutely inconsistent.”

Later in his judgment, Fry J said this (at p.527):

“One or two arguments have been adduced which I desire to notice. In the first place, it is said that an Act of Parliament cannot take away a public right of way except by express words. For that proposition no authority has been cited, and, in my opinion, it is not maintainable. I think that, when the Legislature clearly and distinctly authorize the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right.”

The facts of Yarmouth were stark. The statute authorised the erection of a substantial structure which was intended to be permanent and the existence of which was physically inconsistent with the public right of way in that it prevented access onto the beach at that point. By necessary implication, therefore, the exercise of the statutory power extinguished the public right of way.

In the instant case, however, the position is not so stark. In the first place, the fire safety regime introduced into Part XI of the 1985 Act by the 1989 Act is directed not so much at the erection of permanent structures as with minimising the risk of fire in houses in multiple occupation; and the particular risk which prompted the inclusion of the wall in the works required by the section 352 notice was (as we were told by Mr Fancourt) the proximity of retail use to residential use. So, for example, if at some time in the future the retail use of the ground floor and basement were to cease, there might no longer be a statutory requirement to block the passage in order to maintain adequate fire precautions within the building, with the consequence that the wall could be removed, or a door inserted in it, without thereby breaching any statutory obligation. Accordingly, whilst it may be that the wall cannot sensibly be called a temporary structure, it is not a structure which has the same degree of permanence as the pier in Yarmouth.

Secondly, it is implicit in section 377(1) of the 1985 Act that a person having an estate or interest in the premises in question, and whose consent is “necessary…to enable the works to be executed”, may in certain circumstances reasonably refuse such consent, and by such refusal prevent the works being carried out. I do not find it altogether easy to imagine circumstances where the withholding of consent to measures designed to minimise the risk of fire in a building could be said to be reasonable, but the point for present purposes is that the 1985 Act plainly recognises that such circumstances may exist. It may well be that what was uppermost in the draftsman’s mind when he drafted section 377(1) was the need to provide some mechanism whereby practical difficulties (e.g. difficulties in obtaining access to parts of the building in order to carry out the works) might be overcome, but the fact remains that the effect of the subsection is to allow a person whose consent is required a degree of latitude (however narrow it may be) in deciding whether or not to give such consent.

Thirdly, I bear in mind the well-known common law principle, variously expressed, that an Act should not be construed so as to injure or interfere with a person’s rights without compensation unless the court is obliged so to construe it (see A-G v. Horner 14 QBD 245 at 246 per Lord Esher MR); that an intention to take away a person’s property without compensation should not be imputed to Parliament unless expressed in unequivocal terms (see Commr. of Public Works v. Logan [1903] AC 355 at 363 per Lord Davey, delivering the judgment of the Privy Council); and that if an Act is to have the effect of taking away a property right, “it must be by plain enactment or necessary intendment” (see Bond v. Norman [1939] 1 Ch 847 per Simonds J) – a principle which largely reflects Article 1 of the First Protocol to the European Convention on Human Rights, incorporated into domestic law by the Human Rights Act 1998.

Having regard to those three factors, I conclude that Part XI does not impliedly authorise or require the expropriation of property rights once and for all.

That may not be the end of the matter, since if the property right in question is of limited duration, it may be that in practical terms the carrying out of the specified works will mean that the right will never again be exercisable. However, in the instant case the Lease has another 72 years or thereabouts to run: plenty of time for circumstances to change so far as requirements for fire safety measures in the building are concerned.

In the circumstances of the instant case, therefore, I am not prepared to hold that the erection of the wall pursuant to the section 352 notice had the effect of extinguishing Mrs Jones’ rights once and for all. In my judgment the court should recognise the possibility (albeit it may be a remote possibility) that at some time during the remainder of the term granted by the Lease, whether as a result of a change of use or of a change in the relevant legislation or for some other reason, there may no longer be any statutory impediment to the exercise of Mrs Jones’ rights and that they may once again become exercisable.

In paragraph 50 of his judgment Bell J formulated the test for extinguishment of an easement as being:

“… whether there is no longer any practical possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the manner contemplated by the grant”.

In my judgment, however, there is a prior question as to whether, on the true construction of the relevant statutory regime, the effect of doing the act which Parliament has authorised is to expropriate property rights which are inconsistent with the doing of that act. As Lord Wilberforce said in Sovmots Investments Ltd v. Secretary of State for the Environment & Anor. [1979] AC 144 at p.171F-G, in the context of compulsory purchase:

“Expropriation cannot take place by implication or through intention: it is authorised or it is not authorised. And to see which, it is necessary to construe the authority.”

If the answer to that question is yes, that is the end of the matter. The right is expropriated. If the answer is no, then practical considerations may come into play.

In my judgment, for reasons already given (see paragraphs 80 to 83 above), Part XI of the 1985 Act does not, on its true construction, authorise the once and for all extinguishment of rights which are rendered unexercisable by the carrying out of works in compliance with a section 352 notice.

Turning then to the practical considerations, and addressing the question posed by Bell J (see paragraph 86 above), I would hold, in respectful disagreement with Bell J, that there is in the instant case a practical possibility of Mrs Jones’ rights reviving at some time during the remainder of the term of the Lease.

That said, however, it seems to me to be clear beyond argument that in carrying out the works which he was required by the section 352 notice to carry out Mr Burt committed no actionable wrong vis a vis Mrs Jones (or, for that matter, the other tenants), nor did he thereby render himself liable to her for breach of his contractual obligations under the Lease.

In the first place, I have no hesitation in accepting Mr Fancourt’s submission that, absent any finding of negligence (and no such allegation is made), the fact that in erecting the wall Mr Burt was discharging a statutory obligation is a complete defence to any claim in nuisance at the suit of Mrs Jones (see Dept of Transport v. N. W. Water Authority [1984] 1 AC 336 at 359E-H per Lord Fraser of Tullybelton).

Secondly, I reject Mr Darton’s submission that in complying with the section 325 notice Mr Burt was committing an actionable breach of the covenant for quiet enjoyment in the Lease. In Budd-Scott (on which Mr Darton relied in support of this submission) the statutory obligation on the landlord to paint the outside of the demised premises was in place prior to the creation of the tenancy, and (as Lord Alverstone CJ pointed out at p.358) had she chosen to do so she could have protected herself against liability for disturbance caused to the tenant by her performance of that statutory obligation by including an appropriate provision in the tenancy agreement. In the event she forgot to do so, and for that reason her defence based on the existence of the statutory obligation failed. That consideration is not present in the instant case, since the obligation to erect the wall arose some 25 years after the grant of the Lease. Mr Darton submitted that it was reasonably foreseeable in 1979 that at some stage during the 99-year term of the Lease a statutory obligation to erect the wall would arise. However, even if that were so, the fact remains that, in contrast to the situation in Budd-Scott, the introduction of the fire safety regime into the 1985 Act was a supervening event over which the landlord had no control.

In any event, given that the objective of the statutory regime, and of the specific obligation created by the section 352 notice, is to benefit (among others) residents of flats in the building by reducing the risk of fire, it would to my mind be a strange result if compliance with such an obligation constituted an actionable breach of contract giving rise to a claim for damages (even nominal damages) at the suit of a member of the class so benefited.

In answer to the second issue, therefore, I conclude that in erecting the wall Mr Burt committed no actionable interference with Mrs Jones’ rights in relation to the rear area.

In the light of those conclusions, it is unnecessary for me to address the third issue (viz. whether any liability on the part of Mr Burt has passed to Mr Cleanthi).

Although that is sufficient to dispose of the appeal, I cannot but express some sympathy with Mrs Jones, given the findings of fact made by Judge Simpkiss to which I referred earlier (see paragraphs 42 to 47 above). In particular, the section 352 notice itself did not make it sufficiently clear that access to the rear area would have to be blocked off; Mrs Jones never received Mr Draycott’s specification (which would have made that clear); and Mr Burt, for his own reasons, deliberately did not alert her to the fact that compliance with the notice would mean that access to the rear area would no longer be available to her.

These unfortunate circumstances seem to me to underline not only the need for care on the part of the local housing authority in ensuring that a section 352 notice (and the documentation accompanying it) spells out in clear terms the nature and extent of the works required to be carried out, but also the need for a recipient of a section 352 notice who may be uncertain as to its meaning or its implications to lose no time in notifying the local housing authority of his or her interest in the matter and in making the appropriate inquiries of the local housing authority as to the effect of the notice.

I would dismiss this appeal.

I agree.

I also agree.