Bradney v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery |
| Judgment Date | 09 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1783 |
| Date | 09 December 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: (1) B2/2003/1452 & (2) B2/2003/0990 |
[2003] EWCA Civ 1783
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1)HHJ FRANCES KIRKHAM AND
(2) HHJ DURMAN
BIRMINGHAM COUNTY COURT
Lord Justice Phillips of Worth Matravers
Lord Justice Mummery and
Lord Justice Tuckey
Case No: (1) B2/2003/1452 & (2) B2/2003/0990
(1) MR DAVID WATKINSON (instructed by Evans Derry Binnion) for the Appellant
(1) MR ASHLEY UNDERWOOD QC & MISS TRACY LAKIN (instructed by Andrew Hall, Birmingham City Council, Legal Services) for the Respondent
(2) MR ASHLEY UNDERWOOD QC & MS CATHERINE ROWLANDS (instructed by Birmingham City Council, Legal Services) for the Appellant.
(2) MR STEPHEN COTTLE (instructed by Eric Bowes & Co) for the Respondent.
This is the judgment of the court.
Introduction
The two appeals before the court arise out of proceedings by Birmingham City Council (the Council) to recover possession of its residential freehold property from defendants, who have remained in occupation without permission after the termination of a tenancy. Neither of the defendant occupiers is entitled under domestic law to any tenancy, contractual licence or other right of occupation. In each case the only defence relied on is that the property is the defendant's "home" within article 8 of the European Convention on Human Rights. In one case (McCann) the defence succeeded at first instance. In the other case (Bradney) the defence failed.
According to Article 8
"1. Everyone has the right to respect for…..his home.
2. There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of… or for the protection of the rights and freedoms of others."
Since the county court decided the two cases under appeal the legal scenery has shifted significantly. On 31 July 2003 the House of Lords delivered their opinions in Qazi v. London Borough of Harrow [2003] 3 WLR 792 (Qazi) on the issue of article 8 as a defence in possession proceedings by a local authority against a person who had no tenancy, contractual right or other domestic law right to remain in occupation of its residential freehold property. By a bare majority (3 to 2) the House held that (a) a person may establish as a fact that the property of a public authority, which he continues to occupy after the termination of his right as a tenant or licensee, is his "home" for the purposes of article 8; but (b) the article cannot be used as a defence to defeat the ordinary domestic law proprietary or contractual right of the local authority to recover possession of its property from a person, who has no right to be in possession of it.
By the time that these appeals came to be heard another division of the Court of Appeal (Mummery LJ and Holman J) had already reserved judgment in the case of London Borough of Newham v. Kibata (No 2003/0062/A). That case was also about the impact of article 8 when, after the termination of a tenancy, a local authority claimed possession of residential property owned by it. Kibata was argued ten days before the House of Lords delivered its decision in Qazi. Judgment was reserved. During August and September the court received additional written submissions from the parties on the effect of the decision in Qazi. When it was discovered that the pending appeals in Bradney and McCann raised the same point it was decided to defer the judgment in Kibata until after the hearing of these appeals.
It is unnecessary to repeat all the legal background, as it is fully explained in the judgments in Kibata, to which reference should be made. We shall turn immediately to deal with the facts and submissions in the two appeals.
A. The Bradney Appeal.
This is an appeal by Mr Bradney against an order for possession made by HHJ Frances Kirkham in the Birmingham County Court on 6 March 2003.
The Council is the freehold owner of a two bedroomed terraced house with a garden at 11 Wakemam Grove, Sheldon, Birmingham (No 11). On 2 March 1992 Mr Bradney, Miss Tracy Bromwell and their two daughters moved into No 11. Miss Bromwell was registered as the sole tenant of No 11, which was held under a secure tenancy.
In December 2000 the relationship broke down. Miss Bromwell moved out and was later joined by her daughters. Mr Bradney asked Miss Bromwell to arrange for his name to be added to the tenancy agreement as a joint tenant of No 11. That was done on 15 January 2001.
On 21 February 2001 Miss Bromwell, who was by then living with her mother, wrote to the Council asking for her name to be removed from the joint tenancy of No 11, leaving it in the sole name of Mr Bradney. She wished to bring her own personal liability under the tenancy to an end, while safeguarding the position of Mr Bradney as a tenant. At the request of the Council Miss Bromwell signed a notice to quit No 11, terminating the tenancy with effect from 26 March 2001. There was no evidence that anyone explained to Miss Bromwell that, by giving the notice to quit to the Council she, as one joint tenant, would terminate the tenancy and bring to an end the right of the other joint tenant, Mr Bradney, to remain in possession of No 11.
Mr Bradney was shocked, so the judge found, to discover that the tenancy had come to an end when he requested a sole tenancy of No 11. His request was considered by the Council's Allocation Officer Review Panel, which decided not to grant him a tenancy and to seek possession. By a letter of 22 November 2001 he was required to vacate No 11 within 14 days. It was explained that he had a right of appeal and that the Council was willing to offer him suitable alternative accommodation. Mr Bradney's appeal was heard and rejected on 11 March 2002. He was informed of the result and was required to vacate No 11. He was invited to contact the Council to discuss alternative accommodation. As he did not vacate No 11, the Council started possession proceedings on 26 March 2002.
The judge proceeded on the basis that it was common ground that Miss Bromwell's notice was effective to terminate Mr Bradney's legal right to remain in occupation, although she could "understand that Miss Bromwell might not have appreciated the consequences for Mr Bradney of what she was signing" (paragraph 6). It was conceded that Mr Bradney occupied No 11 as his home and that article 8 was "engaged." The judge concluded that
"26. Instead of giving effect to Miss Bromwell's request that Mr Bradney's position be protected, [the Council] so arranged matters that the opposite result was achieved. Given Miss Bromwell's apparent intention, and Mr Bradney's own wish, one can understand his deep concern at finding that the Notice to Quit had the effect of terminating his tenancy. I am led to the conclusion that [the Council] procured the termination of the tenancy against the wishes and intention of Miss Bromwell and Mr Bradney. I reject Miss Lakin's submission that the Notice to Quit was an act not by a public authority but by a private individual. [The Council] did ask Miss Bromwell to sign the Notice to Quit. Although Miss Bromwell signed the document, it was an instrument whose effect she did not intend but which [the Council] desired. In those circumstances, [the Council's] action in procuring the termination of Mr Bradney's tenancy amounts, in my judgment, to an act by a public authority. The consequence of the Notice was that Mr Bradney, contrary to his wishes (expressed to [the Council] through Miss Bromwell) found himself in a position where his tenancy had come to an end and became vulnerable to these proceedings. I conclude that the Article 8 applies to the procuring of the termination of the tenancy as well as to these possession proceedings."
The judge went on, however, to find that the Council was entitled to possession of No 11, as Mr Bradney's article 8(1) right was overborne by article 8(2). She said:
"38. I accept that [the Council] requires the property for another family which has greater need than Mr Bradney. I conclude that [the Council] has invoked the rights of others as a legitimate aim under Article 8. This case is an example of one of the unfortunate consequences of the break down of long term relationships. The remaining occupier often cannot justify retention of the family home because it provides more space than is reasonably required by him. [The Council] has a long waiting/transfer list. They have many families with greater need than Mr Bradney of a two-bedroomed property. I accept that some families in the Council's waiting/transfer list will be in unsuitable accommodation and have an urgent need for a two bedroomed property. Self evidently, Mr Bradney's continued occupation of the property denies only one family, not 63 or 485 families. However, that does not detract from the fact that [the Council] face an acute shortage of accommodation of this type and have a real and urgent need for the property for families in greater need than Mr Bradney.
39. In my judgment it is necessary and proportionate to grant [the Council]...
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McCann and Birmingham City Council
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