Wates v Rowland and Anor

[1952] 1 All ER 470

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(Judgment by: Sir Raymond Evershed MR)

Between: Wates
And: Rowland and Anor

Court:

Judges:
Sir Raymond Evershed MRJenkins LJ
Hodson LJ

Subject References:
HOUSING
LANDLORD AND TENANT
RENT
Rent Restriction
Permitted increase
'Improvement' of house
Structural alteration
Repairs
Replacement of defective floor
Laying of additional concrete bed

Legislative References:
Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (c 17) - s 2(1)(a), s 2(5)

Case References:
Rabbitt v Grant - [1940] IR 323; 2nd Digest Supp
Strood Estates Co Ltd v Gregory - [1936] 2 All ER 355; [1936] 2 KB 605; 105 LJKB 726; 155 LT 82; affd HL [1937] 3 All ER 656; [1938] AC 118; 106 LJKB 752; 157 LT 338; 31 Digest, Replacement, 667, 7660

Hearing date: 5-6 February 1952
Judgment date: 7 February 1952

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Judgment by:
Sir Raymond Evershed MR

I am of the same opinion, and I only add some observations of my own because we are differing from the view of the judge and because of the part that Rabbitt v Grant played in his arriving at his conclusion. I have found the case difficult, and certainly it is on its facts unusual, for the question is whether the landlord can claim the benefit of s 2(1)(a) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, in respect of the cost incurred by him in making what is, undoubtedly, a structural alteration, and is, undoubtedly, in any ordinary sense an improvement, namely, the making of a new concrete sub-structure capable of meeting a new physical condition. I say "a new physical condition" because it seems clear that at some stage since the house was built, and probably since the tenancy started, a change took place in the water level, and it was in order to meet that change that this alteration was made. The judge clearly regarded himself as bound by the authority of Rabbitt v Grant, that is to say, bound in the sense that (though the case was an Irish decision) it had an authority from which he should not depart. The basis of the decision of Rabbitt v Grant, as I follow it, was that the substitution of a modern water-closet for an earth privy was merely a repair within the meaning of the section, because only by that substitution could the sanitary notice that had been served be satisfied. On that basis the judge felt bound to hold in this case that the building of the new concrete bed and the putting of the new floor on top of it was the only satisfactory way of complying with the notice that had been served. The judge in the circumstances did not go into the question, and there is no finding whether the restoration of the floor alone could have been done without doing this much more substantial work.

The difficulties that I feel in accepting the authority of Rabbitt v Grant are, first, that the second finding of fact made by Geoghegan J in that case seems to me to be open to objection, for I cannot regard it as a finding of fact, strictly, at all. It involved a decision, which is not a matter of fact, on the effect of the words of the Act "for the purpose of keeping premises in good and tenantable repair". I also feel difficult in accepting the test which was applied in Rabbitt v Grant, namely, that if the work done was the only way, or the only satisfactory way, of satisfying the sanitary notice, notwithstanding any changes in social conditions or in the standards of human habitation, it must be a "repair" only.

The decision in Strood Estates Co Ltd v Gregory clearly involves the proposition that the substitution of a modern drainage system for a more antique character of drainage could be an improvement within the section, although in the sense of Rabbitt v Grant it might be the only way of complying with the required standard of habitability; but the particular problem discussed before us was not, so far as I can see, debated in Strood Estates Co Ltd v Gregory, and so we have to deal with the matter, I think, as res integra. In the course of the argument examples were given showing that what was undoubtedly repair might yet involve some degree of improvement, in the sense of the modern substitute being better than that which had gone before. At the other end of the scale it was also clear that work done to satisfy modern standards, although it might involve restoration, and might be said to be restoration in the Rabbitt v Grant sense, yet clearly would be an improvement. Between the two extremes it seems to me to be largely a matter of degree, which in the ordinary case the county court judge could decide as a matter of fact, applying a common-sense man-of-the-world view. The judge in this case did not do that because he thought he should follow the case of Rabbitt v Grant.

I think that the argument of counsel for the tenants, though it has been attractive, comes near to involving the proposition that, if an improvement is not a repair, it must be unnecessary. I am not suggesting that he so argued, still less conceded that that was so, but, as Jenkins LJ has pointed out, I think that clearly there must be improvements, in the way of structural alterations or otherwise, which are necessary, but which cannot satisfactorily be regarded as merely "repairs" within the meaning of the definition. I think, on the whole, that this is such a case, and I, therefore, agree that this appeal should be allowed.