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Grand v Gill [2011] EWCA Civ 554 (19 May 2011)
Whether plaster on a wall is part of the "structure" (and therefore part of the landlord's duty to keep it in repair) has been long-running.
In Quick v. Taff Ely Borough Council [1986] QB 809, the landlord council conceded for the appeal that the plaster in the house was part of its structure, so that decision provided no authority on the point.
In Staves & Staves v. Leeds City Council (1991) 23 HLR 107, a decision of the court of appeal, a like concession was also made by the landlord council. Given the concession, that case cannot be regarded as an authority on the point.
In Niazi Services Ltd v. van der Loo [2004] 1 WLR 1254, an issue came before the court of appeal as to whether plasterwork forms part of 'the structure' of a dwelling-house within the meaning of section 11 of the 1985 Act. Having recognised it as a difficult question, the court decided not to answer it.
The point was, however, the subject of the decision by Mr Recorder Thayne Forbes QC in Irvine v. Moran (1992) 24 HLR 1; [1991] 1 EGLR 261. The lease in question was one to which section 32 of the Housing Act 1961 applied, but section 11(1) of the 1985 Act is, so far as material, in identical terms.
Before the judge were preliminary issues as to which of several items – including 'internal wall plaster' – were part of 'the structure and exterior of the dwellinghouse' and so within the landlord's repairing covenants imposed by section 32 [now section 11 L&T 1985].
Mr Recorder Thayne Forbes was guided to some extent by and followed the approach suggested by Lord Justice Megaw in Campden Hill Towers Limited v. Gardner [1977] 1 QB 823 and said this:
'… As I have said, section 32(1)(a) and the words "structure of the dwellinghouse" mean something less than the dwellinghouse overall and limited to the essential material elements that go to make up the structure of the dwellinghouse. It seems to me that internal wall plaster is more in the nature of a decorative finish and is not part of the essential material elements which go to make up the structure of the dwellinghouse. I therefore hold that internal wall plaster and, for the same reasons, the door furniture do not form part of the structure of the dwellinghouse, bearing in mind I have held that those words mean something less than the overall construction.'
Therefore, this was the general consensus that plaster was not part of the structure and was "more in the nature of a decorative finish".
Ms Grand was formerly Mr Gill's tenant of the second floor (top) flat in a three-storey building. She originally had a 12-month assured shorthold tenancy from 21 November 2004, which continued as a periodic tenancy. Ms Grand occupied the flat with her daughter Alison.
The flat comprises two bedrooms, a living room, kitchen, bathroom and lavatory. Mr Gill has a long leasehold interest in the flat but no interest in the remainder of the building.
The appeal is essentially related to three main points that were being appealed from the previous hearing:
A. Damp and Mould
Ms Grand's main complaint was of dampness and mould throughout the flat. The damp was apparent shortly after she moved in and worsened over time. It was evident on the walls of the living accommodation and became so bad that the smaller bedroom (Alison's) became uninhabitable, and Alison had to move into the living room. Curative works on the damp problem were only done in April 2009. The earlier judge found the complaint about the damp to be established.
B. Water ingress
Another complaint – found by the earlier judge to be associated with the damp and mould and causally connected with it -- was about the undisputed ingress of water into the flat through the ceiling, which was from two sources. The first was a leaking roof above the ceiling. The second was the guttering at the level of the roof. The roof was not. However, part of the premises let to Ms Grand, and the earlier judge found that the responsibility for the repair of the roof and guttering lay with the head landlord.
C. An inadequate boiler
The complaint was that the gas-fired boiler was old, extensively corroded, broke down frequently and worked inefficiently. The judge accepted Ms Grand's evidence that during a total of 207 days (give or take a day or so) between 22 November 2004 and 24 November 2007, the boiler did not function. It was replaced in November 2007, after which the flat had consistent proper heating. During the periods before that, when the old boiler was working, it failed to produce sufficient heat to provide a warm or comfortable environment and to provide hot enough water for a hot shower. The ambient temperature it achieved was just 15 degrees centigrade, which the judge found was inadequate. Ms Grand's evidence about the boiler was not challenged.
In assessing the damage and disrepair I have regard to and follow the approach approved by the Court of Appeal in Wallace v. Manchester City Council [1998] 3 EGLR 38. I have regard to the rent that was payable. I have regard to the discomfort and inconvenience. I approach this case on the basis that it is right to take both aspects into account, so that I approach it as a mixture of the two. I take into account the rent in assessing damages for distress, discomfort and inconvenience. The most important damage, so to speak, was the consequence of the damp and mould, but it seems to me that on the evidence it is not possible to say that more than a ten per cent contribution to the damp and mould was made by the lack of adequate heating coupled with the small matters of the ingress of water into the living room from the guttering and the broken window which was repaired after a year or so. On the basis of full liability for that part of the claim I would have considered that damage in the region of £2,000 per annum would be appropriate, that is to say, £6,000 in all, but since I find the defendant is responsible only to the extent of ten per cent, the award under this head is only £600.
A much bigger award arises in relation to the boiler problem. The 207 days, amounting to approximately 30 weeks, during which there was no heating should, in my judgment, be dealt with by an award of damages of £1,750. The remainder of the first three years of the tenancy, during which there was inadequate heating coming from the boiler, should be compensated at the rate of £1,200 per annum. In setting that figure I have regard to the decision mentioned in Islington v. Spence in July 2001, Legal Action 26 in Clerkenwell County Court, referred to by [counsel for Mr Gill] in paragraph 43 of his skeleton argument, in which the court awarded £1,100 per annum for the period during which, after heating had been restored, the radiators failed to heat up properly, and I add a little to take account of [inaudible] since 2001, so that produces a figure of £3,600 for three years, less approximately £700 for 30 weeks covered by the award of damages for there being no heating at all, so producing a total under this head of £2,900. This means that damages for disrepair will be awarded at a total figure of £5,250.
As to the damages for breach of the covenant for quiet enjoyment, in the circumstances it seems to me it is a relatively modest sum. It will be appropriate to cover the distress and inconvenience suffered by [Ms Grand] and I fix that at £350. So the total damages will be £5,600
The main appeal is that the former tenant says the judge was wrong to apply the 90% discount to the damage caused by the damp.
The judge reasoned that only 10% of the cause of the dampness and mould could be attributed to fault on the part of the landlord Mr Gill, mainly because of the inadequacy of the boiler. The former tenant submitted that the judge was wrong and asked to increase the damages awarded under this head from £600 to £5,000.
It was accepted that Mr Gill was not responsible for repairing the defective roof and guttering, which caused some water ingress. However, part of the discounted reward was because the earlier judge had held that the landlord was not liable to repair the internal plaster. The former tenant submitted this was wrong.
Mr de Waal, for Ms Grand, submitted that the decision in Irvine v. Moran to plaster on internal walls not forming part of the structure of a dwellinghouse was, in principle, wrong. He accepted that applying Mr Recorder Thayne Forbes's guidance regarding the meaning of 'the structure … of the dwellinghouse', internal plasterwork does not give the house stability. But it does, he said, contribute to its appearance and shape. It is, he said, artificial to regard internal plasterwork, whether on walls or ceilings, as purely decorative. The relevant distinction is, he said, between decoration and fittings on the one hand and everything else making up the dwellinghouse on the other. The court did not find the question as to whether plaster formed part of the structure easy but accepted that they must answer the question. Leading judgment of Lord Justice Rimer : (paras 25 - 27, highlights added)
For myself, whilst I would accept and adopt Mr Recorder Thayne Forbes's observations as to the meaning of 'the structure … of the dwellinghouse' as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the 'structure'. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serves to give a dwellinghouse its essential appearance and shape.
I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the 'structure'. I would accordingly accept that the wall and ceiling plaster in Ms Grand's flat formed part of the 'structure' of the flat for the repair of which Mr Gill was responsible.
It follows that I consider that the judge should also have found that the disrepair of the damaged plasterwork meant that Mr Gill was in that respect in breach of his repairing obligations and should have compensated Ms Grand appropriately. I admit to at least some uncertainty as to whether, in arriving at his 'full liability' figure of £6,000 in paragraph 33 the judge was including the plasterwork damage, but I infer that he was; and, consistently with that, Mr de Waal's complaint was that he was wrong to discount the £6,000 figure by as much as 90%. I propose to proceed on that basis. He should, in my view, therefore, have awarded Ms Grand (i) full compensation for the plasterwork damage and (ii) discounted compensation for the remainder of the damage to which the inadequate heating contributed (there was no challenge to the principle of the latter approach that the judge adopted in paragraph 33). Mr de Waal submitted that, because of the judge's error in relation to the plasterwork, an appropriate figure to substitute for his £600 one was the figure of £5,000. I respectfully disagree.
Whilst I agree that Mr Gill should be 100% liable for the plasterwork disrepair, I consider that to regard that element of his liability as representing a figure approaching £5,000 of the judge's 'full liability' £6,000 figure as unrealistic. This court is not in as good a position as was the judge to make the required assessment, but the sums involved are, in my view, of too modest a nature to justify a remission for a re-assessment by the judge. I consider, therefore, that we should make the assessment ourselves, although I recognise that that will require the wielding of a fairly broad brush. I would assess the plaster damage as representing £750 of the judge's £6,000; and so would assess the balance of the damage at £5,250. On that basis, the figure I would substitute for the judge's £600 figure is £750 + (£5,250 x 10%), or £1,275. The result is that the overall damages award that the judge made ought, I consider, to be increased from £5,600 to £6,275 and paragraph 1 of his order of 7 May 2009 adjusted accordingly. I would so order.
Lord Justice Lloyd :
... Accordingly, I would hold, as a general proposition, that plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.
And, Lord Justice Thomas :
... Plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.