Jersey Unreported Judgments

[2010]JRC036

royal court

(Samedi Division)

19^th February 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, and Jurats de Veulle and Marett-Crosby.

 

Michael Anthony Wallser on his own behalf.

Advocate C. R. Dutot for the Respondent.

judgment

the commissioner:

1.        This is an appeal by Michael Anthony Wallser against a dangerous building notice issued by the Minister pursuant to powers conferred upon him by Article 66 of the Planning and Building (Jersey) Law 2002.  The notice was issued on 29^th September, 2009, and required the appellant, Mr Wallser, to undertake certain works specified in a report prepared by CICE Limited, consulting civil and structural engineers, to render safe a chimney stack at the head of the gable wall to 19 Regent Road, St Helier.  The remedial works were to be undertaken before 9^th November, 2009.  The appeal raises an interesting point of construction of the Planning and Building (Jersey) Law 2002.

2.        Mr Wallser's notice of appeal was served on the Minister on 26^th October, 2009.  The ground of appeal was that the dangerous building notice should have been served on the joint owners of the unsafe chimney stack and not solely upon Mr Wallser.  In accordance with the rules an affidavit was filed on behalf of the Minister by Morris Roscouet, assistant director of Planning and Building Services, on 22^nd December, 2009.  Unfortunately Mr Wallser has not complied with his obligations under rule 15 of the Royal Court Rules 2004 to file either an affidavit in response or a written statement of his submissions.  It would be open to the Court to dismiss the appeal on the ground of Mr Wallser's failure to comply with his procedural obligations but we do not propose to do so.  Mr Wallser is a litigant in person; the information contained in his notice of appeal included the substance of his argument together with a copy of the relevant contract and photographs of the building and chimney stack.  Mr Wallser told us that he was unaware of the need to do more. 

3.        We think that it would be good practice if, when the planning department sends a copy of its affidavit to an appellant pursuant to rule 15(3)(1), the covering letter were to remind the appellant of his duty to file an affidavit in response and a written statement of the submissions to be made.  In all the circumstances of this case, however, we think that the issues are sufficiently clear on the papers before us to enable us to deal with this appeal on its merits.

4.        The underlying grievance of Mr Wallser is that he has been placed in the firing line when, on his view, he is but a joint owner of the gable wall and dangerous chimney stack.  It is not for us to pre-judge any issues between Mr Wallser and his neighbour but it does seem, on the face of it, that the wall in question is jointly owned by Mr Wallser and F Le Sueur & Son Limited.  Mr Wallser's contract of purchase on 28^th February, 1997, provided that he acquired, and we translate:-

"Number 19 Regent Road, the whole with the party ownership of the gable wall on the east of a certain building formerly depending from the said property now sold and the party ownership of the walls of the south-east, the east and north-east of the whole, adjoining the property called Falaise belonging to F Le Sueur & Son Limited.". 

The contract also provides that those party walls are to be maintained and kept in good repair by the adjoining owners at common expense i.e. with each owner paying 50% of the cost. 

5.        Without prejudice to the position of F Le Sueur & Son Limited we are proceeding on the assumption that Mr Wallser is the co-owner of the wall in question and the chimney stack.  No issue has been taken by Mr Wallser that the chimney stack is other than dangerous and ought to be repaired; his point is a procedural one.  The narrow question for this Court is therefore whether the relevant power conferred on the Minister by the legislation must be exercised in relation to all co-owners of the land in question.  Article 66 of the 2002 Law provides:-

"Minister may serve a dangerous building notice in respect of building in a dangerous condition

(1) This Article applies where it appears to the Minister that a building is in a dangerous condition, or is being used to carry a load or in a manner that makes it dangerous.

(2) Where this Article applies the minister may serve a notice requiring work to be undertaken to render the building safe.

(3) The notice shall be served on the owner of the building and (if different) its occupier.

(4) The notice shall specify -

"(a) the matter which appears to the minister to make the building dangerous;

(b) the work to be undertaken; and

(c) the period within which that work must be undertaken."

6.        "Owner" is defined by Article 1 of the 2002 Law as including:-

"(a) a usufructuary;

(b) the husband of a feme covert;

(c) the guardian of an infant;

(d) the curator of a person under interdiction ; and

(e) any other legal personal representative of a person."

The inclusive nature of the definition of "owner" does seem however, to imply that all those with a proprietary interest in the land are embraced by the definition.  Thus where land is subject to a usufruct, both the usufructuary and the reversionary owner fall within the definition.  Although the statutory definition does not expressly say so, it seems clear to us that "owner" includes a co-owner. 

7.        What then is the position when the Minister serves a statutory notice under Article 66 of the 2002 Law upon one co-owner but not the other?  Does that render the notice invalid?  Counsel for the Minister has been unable to place any authority before us and we must therefore approach the matter from first principles.  It is to be noted that the 2002 Law empowers the Minister not only to require an owner of land to undertake works in relation to a building in a dangerous condition, but also to undertake those works himself if the owner fails to comply with a notice.  Article 69 provides:-

"Minister may execute work required by dangerous building notice;

(1) The minister may enter land and undertake work required to be undertaken by a dangerous building notice if the work has not been undertaken by the end of the period for compliance specified in the notice.

(2) The Minister may recover the expenses reasonably incurred by the Minister in doing so as a debt due to the Minister from the person who is then the owner of the building."

8.        In extreme circumstances the Minister may even take action without issuing a dangerous building notice.  Article 71 provides:-

"Minister may take immediate action to ensure safety

(1) This Article applies where it appears to the Minister:-

(a) that a building is in a dangerous condition or is being used to carry such a load or in a manner so as to be dangerous; and

(b) that immediate action is necessary to remove or reduce the danger.

(2) Where this Article applies the Minister may, as soon as practicable and whether or not the Minister serves a dangerous building notice, enter the building and undertake work necessary to reduce or remove the danger.

(3) If the Minister decides to act in accordance with paragraph (2) the Minister shall serve notice of his or her decision on the owner of the building and (if different) its occupier but it is not a requirement that the notice be served before the building is entered and the work undertaken.

(4) The Minister may recover the costs reasonably incurred in taking action under paragraph (2) from the owner of the building as a debt due to the Minister."

9.        All these statutory provisions are an intrusion upon the right of a landowner to do with his property what he wishes.  A man's home is generally speaking his castle; for example if the owner of a remote farmstead chooses to allow a farm building to fall into a dangerous condition and to collapse, he is perfectly entitled, as a matter of private law, to do so.  It is only when the owner's right clashes with a duty imposed by statute as a matter of public law that his right may be diminished. 

10.      In private law the mutual rights and duties of co-owners are governed in the first instance by their titles.  The contracts by which they acquire the land in co-ownership lay down their mutual obligations.  It appears in this case that each co-owner has a duty to maintain and to keep in good repair the party wall and chimney stack at joint expense i.e. each co-owner is liable for 50% of the cost of so doing.  If one co-owner were to undertake the work, he or it would be able to recover one half off the cost from the other. 

11.      Suppose, however, that the Minister exercised his statutory power under Article 69 or Article 71 above to undertake the work and sought to recover the cost from the owner of the building as a debt; can he recover the whole of the debt from one co-owner or is he obliged to pursue both co-owners for 50% of the debt?  To put it another way, is the obligation of the co-owners joint and several so that each is liable for the whole debt, with a right of recovery of 50% from the other?  In our judgment the Minister would have no right to recover the whole debt from one co-owner; that would be to impose as a matter of public law a greater obligation upon the co-owners than subsists as a matter of private law.  Only very clear words in a statute would achieve such a result. 

12.      What then is the position when the Minister serves a notice under Article 66 upon one co-owner and not the other?  One answer to the question would be to treat the notice as valid and to require Mr Wallser to recover 50% of the cost from F Le Sueur & Son Limited.  In practice co-owners with mutual obligations very often do agree that one of them will undertake the work and recover the appropriate contribution from the other.  In the context of public law, however, the effect of such an approach would be to deprive F Le Sueur & Son Limited of the opportunity to challenge the necessity for the works specified in the notice or their extent or the means of their undertaking; that would be unfair upon them.  Alternatively, if they were successfully to challenge the necessity for, or reasonableness of the work upon a claim by Mr Wallser to recover 50% of the cost, that would be unfair upon Mr Wallser.  Taken in the round it seems to us to be bad administration to countenance permitting the Minister to pursue a statutory remedy against one co-owner but not the other. 

13.      The whole thrust of this part of the 2002 Law points towards the giving of notice to everyone with an interest in the land, even if not a proprietary interest.  Article 66(3) requires that a dangerous building notice be served upon the occupier of a building as well as the owner.  Article 71(3) makes the same provision.  It would be a curious state of affairs if the Minister were obliged to serve these notices upon an occupier, but not upon a co-owner.

14.      No practical difficulty would seem to us to result from a ruling that co-owners must be served with a notice under Article 66.  Details of ownership and co-ownership of land are recorded in the Public Registry and are matters of public knowledge.  In most cases the ownership of land will be straightforward and require no research.  Occasionally, as here, it will be necessary to establish whether a wall on a boundary is in party ownership or not.  In this case the planning department was in fact aware of the party ownership of the wall before the dangerous building notice was served.  Mr Wallser had written to the department sending it a copy of his contract and pointing out that he was a co-owner of the wall on which the chimney stack stands.  Notwithstanding this information the department appears to have taken the view that the chimney stack formed part of the building owned by Mr Wallser and that the notice should therefore be served only upon him. 

15.      Miss Dutot for the Minister argued that the apparent position of the chimney stack as part of Mr Wallser's property meant that it was legitimate for the Minister to serve the notice only upon him.  Article 66 refers to the service of a notice upon the owner of the building.  This argument seems to us to fall, however, when one looks at the definition of "building".  Article 1 provides that its meaning includes a part of a building.  The party wall and chimney stack are part of a building owned by Mr Wallser and F Le Sueur & Son Limited. 

16.      For all these reasons we reach the conclusion that Article 66 of the 2002 Law imposes a legal duty upon the Minister to serve notice upon each co-owner if he seeks to require works to be undertaken to render a building safe. 

17.      The appeal is accordingly allowed and the dangerous building notice served on the 29^th September, 2009, is quashed.

18.      I order the Minister to pay the appellant costs in the sum of £150. 

Authorities

Planning and Building (Jersey) Law 2002.

Royal Court Rules 2004.