Factual and Procedural Background
This appeal concerns the interpretation of section 11(1)(b) of the Landlord and Tenant Act 1985 and a similar clause in tenancy agreements regarding the obligation to keep water supply pipes in proper working order. The case involves four flats on the top floor of a building referred to as Eton House, located in The City. The tenancies began between September 1991 and June 1994.
Prior to these tenancies, in 1986/87, the landlord replaced existing water pipework with smaller bore pipes. These smaller pipes functioned adequately for some years, but from summer 1992 onwards, water pressure fell and the pipes failed to supply water properly to the top floor flats. The previous larger pipes would have supplied water successfully during this period. The landlord could have installed a booster pump to address this issue. In 1998, after a new pumping station was built by the Water Authority, the smaller pipes again supplied water adequately.
In August 2000, His Honour Judge Marr-Johnson found no breach of the landlord’s obligation, reasoning that since the pipes worked successfully for years and only the water pressure changed, there was no failure to keep the pipes in proper working order.
On appeal, Blackburne J reversed this decision in February 2001, holding that the landlord’s obligation required the pipes to be physically or mechanically capable of supplying water to the flats, which the landlord could have ensured but did not.
This second-tier appeal was granted leave by Arden LJ, who identified a significant point of statutory construction: whether a breach can arise where an installation is mechanically sound but fails due to factors beyond the landlord’s control. The court also considered precedent relating to the landlord’s obligations under similar statutory duties.
Because the facts were assumed only for preliminary issues, a full trial was necessary to establish the actual facts. The court also concluded that even if the assumed facts were proven, they were insufficient to resolve liability definitively.
Legal Issues Presented
- Does the landlord’s obligation to keep installations for water, gas, or electricity in proper working order require that the installations be designed and constructed at the start of the tenancy to perform their function?
- To what extent must the installations be designed and constructed to accommodate variations in the quantity or character of the supply?
- If changes in supply occur after the tenancy begins that affect functionality, is the landlord obliged to modify the installations to accommodate such changes?
Arguments of the Parties
Appellant's Arguments
- The landlord’s duty at the start of the tenancy is to provide installations capable of conveying utilities from the supplier to the tenant’s appliances.
- Relying on precedent from the House of Lords, a defective design rendering an installation incapable of proper function constitutes a breach of the landlord’s duty.
- The obligation to keep installations in proper working order implies that installations must be in proper working order at the tenancy’s inception.
- The landlord should ensure installations can perform their function at the pressure supplied by the statutory undertaker, accommodating reasonable variations in supply.
Appellee's Arguments
- The obligation to keep in repair does not require remedying defects of design or construction, only preventing deterioration.
- If the pipes worked properly at installation, a later failure due to changes in supply pressure outside the landlord’s control does not constitute a breach.
- Installations must be judged by their physical and mechanical condition, not by external supply interruptions beyond the landlord’s responsibility.
- Precedent indicates the landlord is not liable for failures caused by supply interruptions or limitations imposed by the utility provider.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Liverpool County Council v Irwin [1977] AC 239 |
Landlord’s absolute duty to keep installations in proper working order and that defective design at inception constitutes breach. |
Supported the principle that installations must be capable of proper function at tenancy commencement. |
| Campden Hill Towers Ltd v Gardner [1977] 1 AER 739 |
Limitations on landlord’s obligation relating to installations outside the flat and responsibility for supply interruptions. |
Clarified that landlord’s duty relates to physical and mechanical condition, not external supply issues beyond landlord’s control. |
| Proudfoot v Hart (1890) 25 QB 42 |
Tenant’s duty to keep premises in repair includes remedying pre-existing disrepair at tenancy start. |
Referenced to support obligation to have installations in proper order at tenancy inception. |
| Quick v Taff-Ely Borough Council [1986] QB 809 |
Distinction between duty to keep in repair and duty to keep in proper working order. |
Distinguished from current case as it deals with repair, not proper working order. |
| Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055 |
Similar to Quick v Taff-Ely; repair duties do not extend to remedying design defects. |
Not directly applicable to duty to keep installations in proper working order. |
| Southwark London Borough Council v Tanner [2001] 1 AC 1 |
Clarification on repair obligations and their limits. |
Not considered directly relevant to the duty to keep installations in proper working order. |
| Lee v Leeds City Council [2002] EWCA Civ 06 |
Further authority on repair obligations. |
Not applicable to the issue of proper working order. |
| Wycombe Health Authority v Barnett (1982) 5 HLR 84 |
Proper working order relates to physical or mechanical condition capable of working properly as an installation. |
Referenced but found unhelpful in resolving extent of landlord’s duty to accommodate supply variations. |
Court's Reasoning and Analysis
The court analysed the landlord’s duty under section 11(1)(b) of the Landlord and Tenant Act 1985 as an obligation to keep installations in proper working order, which includes ensuring that installations are properly designed and constructed at the tenancy’s commencement to perform their intended function.
The court distinguished the duty to keep in repair from the duty to keep in proper working order, holding that an installation defective in design or construction is not in proper working order, even if it has not physically deteriorated.
Regarding variations in supply, the court rejected the view that installations must function regardless of all changes in supply conditions, as this would be unreasonable. Instead, the installations must be capable of functioning under reasonably anticipated supply conditions.
The court noted the difficulty in defining the extent to which landlords must accommodate changes in supply characteristics and held that this depends on the facts of each case.
In cases of unanticipated supply changes requiring modifications, the landlord’s obligation to adapt installations is not absolute and depends on factors such as reasonableness, duration, and cost of modifications.
Due to the complexity and factual uncertainties, the court concluded that the assumed facts were insufficient to resolve liability and emphasized the need for a trial or agreement on material facts.
Holding and Implications
The appeal was ALLOWED. The court held that the previous appellate decision could not be sustained on the assumed facts, but neither could the original decision. The case was remitted for further proceedings to establish the facts necessary to determine liability.
The decision clarifies that landlords must provide installations capable of proper function at tenancy commencement and maintain them accordingly, but the obligation to accommodate variations in supply depends on reasonable anticipation and circumstances.
No new precedent was established, and the case underscores the importance of detailed factual findings in disputes over statutory obligations to keep installations in proper working order.