Bilgili & Anor v Paddington Churches Housing Association & Anor

A repairing covenant requiring work to be carried out properly and in a workmanlike manner is breached when replacement of a functioning kitchen window removes an essential ventilation fitting and leaves a sealed, fixed window without alternative ventilation. Installing a modern replacement does not justify removing a necessary function. On a second appeal, permission should be refused where the appeal has no real prospect of success, raises no important point of principle or practice, and presents no other compelling reason for the Court of Appeal to hear it.

The proceedings arose from a claim by tenants concerning the replacement of a Crittall kitchen window by two housing associations. The district judge initially gave judgment for the landlords. On appeal, His Honour Judge Bailey held that removing the spinner vent and installing a fixed window without ventilation breached the repairing covenant. The landlords’ challenge proceeded as a renewed application for permission to bring a second appeal. The central issues were whether the replacement amounted to an adequate repair and whether the proposed appeal satisfied the requirements for a second appeal.

1. Application refused. Lord Justice Sedley refused the renewed application for permission to appeal. The respondents were not represented.
2. Repairing covenant. The landlords had admitted a covenant to carry out repairs in a proper workmanlike manner. The original kitchen window contained a spinner vent which was essential because it was the single window serving the kitchen. Replacing it with a fixed, sealed UPVC window, with no means of opening and no form of ventilation, was plainly not a proper repair. The fact that the replacement window was modern did not alter that conclusion. The alleged consequences, including condensation, mould, damp and risk to health, remained matters for trial, but they did not affect the clear breach identified in the replacement work.
3. Second appeal. The proposed appeal did not raise an important point of principle or practice and there was no other compelling reason for the Court of Appeal to hear it. It also had no real prospect of success. The issue turned on the particular and unusual facts, rather than a question of general legal importance. Sedley LJ expressly agreed with the paper decision of Etherton LJ and considered the application hopeless even apart from the second-appeal test.

Order: Application refused.

1. Court of Appeal (Civil Division). Etherton LJ refused permission on the papers. On renewal, Sedley LJ agreed with that decision and refused the application: [2010] EWCA Civ 1341.
2. Central London County Court. His Honour Judge Bailey held that removing the spinner vent and failing to provide ventilation breached the repairing covenant. The district judge had previously given judgment for the landlords.