Saxonbest Ltd., R (on the application of) v London Borough of Bromley

J U D G M E N T

1. MR JUSTICE HENRIQUES: The appellant appeals by way of case stated against the decision of the Crown Court sitting at Croydon on 21st February 2003, dismissing its appeal against the decision of Bromley Magistrates' Court on 29th November 2002 for failure to register a property under the terms of the London Borough of Bromley's houses in Multiple Occupation Registration and Control Scheme 2001, contrary to section 348(g) of the Housing Act 1985 as amended, (the 1985 Act). The justices convicted the appellant, imposed a fine of £5,000 and ordered it to pay costs on £2,500. On appeal against sentence, the Crown Court halved the fine, but on the conviction appeal failing there were adverse costs consequences.

2. The respondent laid and prosecuted the information. The property in question is 220 Bromley High Street, Kent. The respondents made a registration scheme under section 346 of the 1985 Act, and on 10th January 2001 the scheme was confirmed by the Secretary of State pursuant to section 346 (b). The scheme came into force on 1st March 2001. The respondents contend that 220 High Street Bromley is legally required to be registered as a house in multiple occupation under the terms of the Control Scheme 2001. The aim of the scheme is to protect the health and safety of all occupiers by regulating the development and use, the conditions and practices, in relation to houses in multiple occupation.

3. Two questions were raised in the case. One, whether on a true construction of the scheme and of the Building Regulations 1985, in particular regulations 19 and 20, and on the agreed facts, they were right to hold that the scheme applied to the property.

4. Two, whether the authority, to the effect that the property is a house in multiple occupation within the meaning of part 11 of the Housing Act, is correct. The appellant has formally abandoned its appeal in relation to the second point.

5. Section 4(1) of this scheme reads as follows:

"This scheme shall not apply to -

"(h) Any house where the living accommodation consists entirely of self-contained flats and -

" ... (ii) when the flats were created:

"(aa) the building was required to comply with the requirements relevant to fire safety contained in the Building Regulations 1985 or regulations made subsequently under section 1(1) of the Building Act 1984."

6. The Building Regulations 1985 came into operation on 11th November 1985. Regulations 3 to 17 made provisions as to the control of building works. These include requirements relevant to fire safety. Regulation 19 reads:

"Subject to regulation 20, the regulations specified in Schedule 4 are revoked."

7. Regulation 20 reads:

"(1) These regulations shall not apply in relation to -

"(a) plans deposited before 11th November 1985; or:

"(b) work carried out in accordance with such plans, with or without any departure or deviation from the plans, and the regulations revoked by regulation 19 and the enactments repealed by regulation 18 shall continue to apply in relation to any such plans or work as if they had not been revoked or repealed."

8. The appellant submits that the scheme did not apply to the property by virtue of paragraph 4(1)(h)(ii)(aa). It was argued that since the works of conversion were done following a deposit of plans on a date prior to November 11th 1985, namely in November 1983, and the work was certified as complete on 27th January 1986, the date when the flats were created was not or could not be proved to be earlier than the coming into operation of the 1985 Building Regulations on 11th November 1985.

9. The works were therefore carried out subject to the regulations revoked by regulation 19 of the Building Regulations 1985, which regulations, being otherwise revoked, were operated only by virtue of regulation 20. The requirements relevant to fire safety with which the building was required to comply were therefore "contained in" regulation 20 of the 1985 regulations, and upon a true construction the property was therefore within paragraph 4(1)(h)(ii)(aa) and so exempt from the scheme.

10. It is submitted by Mr Howard that the combined effect of regulations 19 and 20 is to revoke and remake the 1976 regulations without modification for a limited class of case including the present. He refers to section 17 of the Interpretation Act:

11. "(1) Where an Act repeals a previous enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into force.

"(2) Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears -

"(a) any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;

"(b) in so far as any insubordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision."

12. This section is applied to subordinate legislation by section 23 of the Act. Accordingly, it is submitted that the effect of revocation by regulation 19 is that the 1976 regulation ceased entirely to have effect as though they had never existed.

13. Reference is made to the dicta of Lord Evershed MR in Boddington v Wisson 1951, 1 Kings Bench, page 610:

"It is well established that, apart from the Interpretation Act, 1889 (which took the place of an earlier Act of 1850), the effect of a repeal of an Act of Parliament is that the Act repealed is treated as having been ab inito non existent."

14. Accordingly, it is said that from the moment regulation 19 took effect, that is on midnight on the night of 10th/11th November 1985, the only existence the 1976 regulation had was by the operation of regulation 20 which took effect at the same time. This, it is submitted, had the effect of reviving instantly those regulations in accordance with section 16 1A of the Interpretation Act 1978. It is thus submitted that with effect from 11th November 1985, the 1976 regulations under which these works of conversion were completed were "contained in" the 1985 regulations. The requirements as to fire safety governing those works were also therefore, it is contended, contained in the 1985 regulations.

15. Miss McKeever most concisely repudiates this argument. The respondents do not agree that the combined effect of regulations 19 and 20 is to revoke and remake the 1976 regulations. Regulation 20 states in plain English that the regulations revoked by regulation 19 and the enactments repealed by regulation 18 shall continue to apply in relation to any such plans or work as if they had not been revoked or repealed. Nothing could be clearer.

16. Miss McKeever contends in her skeleton argument that it is disingenuous to state that the effect of the revocation by regulation 19 is that the 1976 regulations ceased to have effect. Such argument completely ignores the effect of regulation 20 and the necessity of reading regulation 19 subject to regulation 20.

17. In my judgment, the draughtsman manifestly anticipated the potential for Mr Howard's argument and took effective steps to counter any such contention. Regulation 19 specifically states that it must be read subject to regulation 20. Regulation 20 states that the regulation revoked by regulation 19 shall continue to apply.

18. In ordinary common sense, an interpretation of regulation 20 ensures that companies such as the appellant company, who had started work and had costed and planned their work prior to 1985 and were not therefore subject to the 1985 regulations, did not then have to resubmit their plans in order to comply with regulations not in force at the time of the original submission of their plans.

19. The 1985 Act, as Miss McKeever points out, contained many new provisions regarding means of escape from fire which were not contained in earlier legislation. It would have been onerous at best and wholly impractical at worst to expect a company such as the appellant's to restart, replan and refinance their building work.

20. I have no hesitation in accepting Miss McKeever's submission. It depends on no more than reading regulations 19 and 20 together, that is reading regulation 19 subject to regulation 20, and to the words, "Shall continue to apply in relation to any such plans or work as if they had not been revoked and repealed their ordinary and natural meaning."

21. Mr Howard's argument, ingenious as it may be, results in a conclusion which was clearly not intended by the draughtsman and which produces an illogical and impractical solution.

22. I would answer the single extant question in the case in the affirmative, and will dismiss this appeal with costs.

23. Now, Miss McKeever, can costs be summarily assessed today?

24. MISS MCKEEVER: Yes, they can. My Lord, I have a breakdown here, I do not know whether your Lordship wants the figure now.

25. MR JUSTICE HENRIQUES: I do not know. Have the summary assessment of costs provisions been complied with, that is, the assessments been exchanged and supplied to the court?

26. MISS MCKEEVER: Certainly my learned friend knows, and I spoke to my opponent this morning about them. I do not think the court at the moment has a copy of the breakdown.

27. MR JUSTICE HENRIQUES: No. Miss Reed.

28. MISS REED: Yes.

29. MR JUSTICE HENRIQUES: I do not know whether you have come prepared to deal with the question of costs, I am very conscious of the fact that you are standing in for Mr Howard.

30. MISS REED: I have come prepared and able to say that we take no issue as to the costs put forward by my learned friend.

31. MR JUSTICE HENRIQUES: So you are prepared to agree them on that basis?

32. MISS REED: We are.

33. MR JUSTICE HENRIQUES: Very well. Do you want me to make an order to a particular sum?

34. MISS MCKEEVER: My Lord, yes.

35. MR JUSTICE HENRIQUES: It would avoid your having to come back in the event of their not being paid. The amount agreed is?

36. MISS MCKEEVER: £2,414.62.

37. MR JUSTICE HENRIQUES: There will be an order for costs, then, to be paid by the appellant in the sum of £2,414.62, and Miss McKeever, I am very grateful for the assistance from you. Miss Reed, will you thank Mr Howard for his considerable assistance with his several skeleton arguments.

38. MISS REED: My Lord, I will. One last matter, I am instructed to ask for permission to appeal.

39. MR JUSTICE HENRIQUES: Permission to appeal is refused on the grounds that it has no prospect of success. If you will wait, I will complete the form. Is there anything more that you would like to say? It was purely to ask for permission.

40. MISS REED: Yes.

41. MR JUSTICE HENRIQUES: Thank you very much.