Bristol District Council v Clark
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE SCARMAN |
| Judgment Date | 02 July 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0702-2 |
| Date | 02 July 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0702-2
The Wastes Of The Rolls (Lord Denning),
Lord Justice Lawton and
Lord Justice Scarman.
In The Supreme Court of Judicature
Court of Appeal
Mr. JEREMIAH HARMAN, Q. C, and Mr. C. S. RAWLINS (instructed by Messrs. Blyth Dutton Robins May, agents for the City Clerk of Bristol) appeared on behalf of the Appellant Plaintiffs.
Mr. D. J. TURNER-SAMUELS, Q. C., and Mr. WILLIAM BTRTLES (instructed by Mr. Henry Hodge) appeared on behalf of the Respondent Defendants.
THE MASTER OF THE ROLLS: Mr. and Mrs. Clark were the tenants of a Council house: No. 77 Short wood Road, Hartcliffe, Bristol. Mr. Clark says that he was employed in the building trade undertaking sub-contract work. We know what that means. He was "on the lump". There was no relationship of master and servant at all. From 1972 onwards he was frequently out of work. He failed to pay his rent when the rent collector called. The Council wrote to him from time to time for the money. He gave chouse which were returned marked "Refer to drawer". Eventually on 27th September 1973 the Director of Housing sent a warning letter to Mr. and Mrs. Clark and others who were persistently in arrears with their rent. He warned them that the Corporation could not allow this state of affairs to continue, in block letters "unless your account is cleared by Friday, 19th October 1973
YOU WILL BE SERVED WITH A NOTICE TO QUIT WHICH WILL NOT BE WITHDRAWN EVEN IF YOU SUBSEQUENTLY CLEAR YOUR ACCOUNT."
Whilst he was unemployed he was receiving a rent rebate and was in receipt of supplementary benefit. Before giving notice to quit the Housing Department of the Bristol Corporation got in touch with the Social Security Department of the Avon Council and asked them to examine the case. On 12th December 1973 the Director of Social Services replied that they had had an investigation into the circumstances of the family. He said: "It is not considered to be a case where we could offer a rent guarantee. It is appreciated that this decision may result in the family being evicted from their present home, and I confirm that this Department does not object to such eviction action being taken."
In consequence the Bristol Housing Department made a report to the Chairman of the Housing Department. It showed Mr. Clark as unemployed: the household income with supplementary benefit as £38.27 a week, and rent only £6.90 a week. Yet arrears of renthad accumulated amounting to£45 20. thereupon the Chairman of the Housing Committee authorised a notice to quit to be given, which was afterwards approved by the full Housing Committee. The notice to quit was given on 9th January 1974. It expired on 11th February 1974.
Now although Mr. Clark said he was unemployed, he had in fact got employment as a milkman, But he did not disclose It. He continued to have the rent rebate without telling those concerned. Eventually he cleared off the arrears, but not the rent rebates. In April 1974 the Council took proceedings for possession in the County Court. The defendant were advised by a gentleman who described himself as an LL. B. of the University of Bristol. He put in a defense on their behalf saying: "The local authority does not require the property for the purpose of exercising its powers under any enactment relating to housing. There are no arrears of rent outstanding and in these circumstances the defendants ask the court to decline to. make a possession order and order the plaintiff to meet costs." The case went to trial before the County Court Judge. Several points were raised which he decided in favor of the Corporation: but he eventually gave Judgment for the tenants on this ground: He thought that the Bristol Corporation were under an obligation to give evidence that they required possession of the house for the purpose of their own housing requirements for people whom they wished to house themselves; and as they had not given any positive evidence to that effect, the Judge held that they had not established their case and were not entitled to possession.
In coming to that conclusion, the Judge felt he was bound to do so by reason of the Housing Act 1957 section 158 and cases decided under it. That section, as amended in 1965, says"(1) Nothing In the Rent Act 1968 shall prevent possession being obtained of any house possession of which is required for the purpose of enabling a local authority to exercise their powers under any enactment relating to housing:
(2) Where a local authority, for the purpose of exercising their powers under any enactment relating to housing, require possession of any building or any part of a building of which they are the owners, then, whatever may be the value or rent of the building or part of a building, they may obtain possession thereof under the Small Tenements Recovery Act 1838, as in the oases therein provided for, at any time after the tenancy of the occupier has expired, or has been determined."
In pursuance of that section, the local authorities have often taken proceedings before the Magistrates under the 1838 Act to recover possession: and have succeeded on the ground that the tenant of a council house is not protected by the Rent Act, see Shelley v. London County Council (1949) A, C. 56. But, in two cases before the Divisional Courts it has been held that, in order to give the Magistrates Jurisdiction, the local authority must tender some evidence that they require possession for the purpose of enabling them to exercise their powers under the Housing Acts. Those two oases are St. Pancreas Borough Council v. Frey 1963 2 Q. B. 588 and Harpin v. St. Albans Corporation 1969 Knight's Local Government Reports 479. The Judge here pointed out that both section 158(1) and section 158(2) contain the crucial words "for the purpose of exercising their powers" under the Housing Acts. So he thought that, in order to escape the Rent Acts the local authority must give some evidence that they required possession it) order to exercise their powers under the Housing Acts.
The Bristol Corporation challenged this view. They deliberately chose to call no evidence before the County Court Judge as to the purpose for which they required possession.
I can well understand the Judge's decision: but I am afraid I cannot agree with it. I have some doubt as to the correctness of the two decisions of the Divisional Court, but in any case I think they only applied in former times when a local authority is taking advantage of section 158 so as to go before the Magistrates under the Small Tenements Recovery Act 1838. Those two decisions have no application today because the Small Tenements Recovery Act 1838 has now been repealed for this purpose: and since 1st October 1972 the only Court in which the local authority can take proceedings is the County Court, see section 35(5) of the Rent Act 1965 and the Small Tenements Recovery Act 1838 (Repeal) (Appointed Day) order 1972. In these circumstances the local authority do not rely on section 158(2) at all. They rely simply on the common law which gives a landlord a right to possession on expiry of the notice to quit. The tenant had no protection under the Rent Act, because section 5 of the Rent Act 1968 says that "a tenancy shall not be a protected tenancy when the interest of the landlord under that tenancy belongs...
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