McAuley v Bristol City Council

Section 4(4) of the Defective Premises Act 1972 does not impose a general repairing obligation. It treats the landlord as being under an obligation only for the description of maintenance or repair covered by the right of entry.

A right to enter and repair may be implied where necessary to make the tenancy sensible and effective. The test is necessity and business efficacy, not reasonableness alone. In an appropriate tenancy, a limited right to repair defects exposing tenants or lawful visitors to a significant risk of injury may be implied. That right can trigger the statutory duty of reasonable care, subject to the other statutory conditions.

Mr and Mrs McAuley were tenants of a council house with a steep garden and concrete steps. Mrs McAuley injured her ankle when an unstable step moved beneath her. The assistant recorder awarded damages of £4,500 plus interest, holding that the council owed a duty under section 4 of the Defective Premises Act 1972.

The council appealed on liability and costs. It argued that the tenancy imposed no relevant repairing obligation and that the tenancy clause giving access to the premises did not confer a right to repair the garden step. The central issue was whether section 4(4) applied through an express or implied right of entry to carry out the relevant repair.

Ralph Gibson LJ gave the leading judgment. Neill LJ agreed with his reasons and added separate observations on section 4 of the Defective Premises Act 1972. The appeal was dismissed on liability and costs.

1. Statutory scheme. Section 4(1) applies where the landlord is under an obligation to maintain or repair the premises. Section 4(4) extends the statutory treatment where the tenancy expressly or impliedly gives the landlord a right to enter and carry out any description of maintenance or repair. The landlord is treated as under an obligation only for that description of repair, not for every possible repair. The provision should not receive a wide construction imposing an extensive burden on landlords who have assumed no contractual obligation.
2. Tenancy clause. Clause 6(c) did not give the council an unlimited right to enter for any purpose. It permitted entry only for purposes which the council could lawfully carry out as between landlord and tenant. It did not authorise alterations or improvements without the tenant’s consent.
3. Implied right. The principles governing an implied obligation to repair also govern an implied right reserved to the landlord. The question is whether the right is necessary to make the transaction sensible and effective, applying the business-efficacy and necessity approach. The relevant inquiry is whether the landlord could insist on access, and obtain an injunction if necessary, rather than whether the tenant would probably consent.
4. Application. The tenancy placed ordinary repair responsibility on the council, imposed no repairing obligation on the tenants, and contained no express term inconsistent with an implied right. A right was therefore implied, but only to enter and repair defects exposing the tenants or lawful visitors to a significant risk of injury. The unstable step was such a defect. The council accordingly fell within section 4(4), and its breach of the resulting duty was not challenged.
5. Costs. The recorder was entitled to make the order made. Although a more carefully defined order might have been preferable, no error of principle was shown. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal: dismissed the council’s appeal on liability and costs, with costs. Leave to appeal to the House of Lords was refused. [1991] EWCA Civ 2.
2. Bristol County Court: the assistant recorder awarded Mrs McAuley damages of £4,500 with £270 interest on 6 July 1990.