Dyer v Dorset County Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE NOURSE,LORD JUSTICE MANN
Judgment Date04 May 1988
Judgment citation (vLex)[1988] EWCA Civ J0504-1
Docket Number88/0372

[1988] EWCA Civ J0504-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE WEYMOUTH COUNTY COURT

(HIS HONOUR JUDGE BEST)

Royal Courts of Justice

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Nourse

Lord Justice Mann

88/0372

Alan Dyer
and
Dorset County Council

MR R.G. TOULSON Q.C. and MR M.H. LOMAS, instructed by P.K. Harvey Esq. (Dorchester), appeared for the Appellants (Respondents).

MR J.C. LOFTHOUSE, instructed by Messrs Andrews Son & Huxtable (Dorchester), appeared for the Respondent (Applicant).

THE MASTER OF THE ROLLS
1

Mr Dyer is a senior lecturer in animal husbandry at the Kingston Maurwood College of Agriculture. The College is owned by the Dorset County Council and the Council is Mr Dyer's employer. The Council is also the landlord, Mr Dyer having, since 1965, been the tenant of one of the lecturers' houses within the College grounds. Whilst it was not a term of his employment that he should live there, he became its tenant in consequence of that employment and his duties are better performed as a result of his occupation of the property.

2

Mr Dyer wants to buy the house which he occupies and claims to be entitled to do so under what is generally known as "the right to buy" legislation—more accurately the Housing Act 1980, as amended by the Housing and Building Control Act 1984. This is an eminently reasonable desire. The Council, equally reasonably, does not wish to lose the ownership of a house which it may well need in order to provide accommodation for any lecturer who succeeds Mr Dyer when he retires. It is also gravely concerned that if Mr Dyer is entitled to buy his house, the same right may be enjoyed by other employees of the Council working in educational and social service institutions, such as colleges of further education, special schools, children's homes, community homes and the like. Not only is the attitude of both parties wholly reasonable, but they have conducted the litigation in a most civilised manner, the point at issue being whether, on virtually unchallenged facts, the legislation on its true construction gives Mr Dyer any such right.

3

The College was founded soon after the War when the County Council bought the Kingston Maurwood estate, consisting of about 100 acres of land containing Kingston Maurwood House with extensive pleasure gardens, a park and a mass of outbuildings, including a lodge house at the entrance to the park, a subsidiary manor house, stables, outbuildings and so forth. The lecturers' houses, including that let to Mr Dyer, were built in 1952 specifically to house staff at the College. The estate still retains its character as a single unit, and the lecturers' houses are on the edge of that unit facing a road, which provides the only vehicular access. They are fenced off at the back, but there is pedestrian access to the remainder of the College grounds through or over the fence by means of gates or stiles.

4

His Honour Judge Best, sitting in the Weymouth County Court, found in favour of Mr Dyer on 27th May 1987. The County Council now appeals to this court. Whilst a large number of issues were ventilated in the court below, those still in dispute are much fewer. Indeed, apart from a point on the form of the Council's statutory notice denying Mr Dyer's claim to a right to buy, the only remaining issue is whether Mr Dyer's house is within "the curtilage" of another building which is a relevant building for the purposes of the Act. The learned judge held that, whether the relevant building was the Manor House itself or that house together with associated College buildings, the concept of "a curtilage" was so limited that Mr Dyer's house was not within it. As he put it "curtilage" means "no more than the immediate area surrounding a building which would normally be the domestic ground which went with the building which would properly be described in the conveyance of the house as the building and passing with it". He would have reched the opposite conclusion if the relevant statutory provision had referred to the house being within the curtilage of the College or institution.

5

Under the Housing Act 1980 in its original form a secure tenant prima facie acquired a right to buy the dwelling-house of which he was a tenant. However not all tenants were secure tenants and the right to buy was subject to exceptions. Under the unamended Act Mr Dyer would have fallen at the first fence, because he was not a secure tenant. This was because county councils were not amongst the bodies whose lettings gave rise to secure tenancies unless, which was not Mr Dyer's case, the letting was in the exercise of reserve powers conferred on county councils by section 194 of the Local Government Act 1972. It is not without interest and, as Mr Roger Toulson Q.C. appearing for the appellants submits, relevance that if Mr Dyer's landlord had been a local authority other than a county council, his claim to be a secure tenant would have been defeated if (a), as may well have been the case, the terms of the tenancy provided for its termination on his ceasing to be employed by the landlord, (b), as was the case, his house had been held by the landlord for the purpose of any of its functions under the Education Act 1944, and (c) his house was within the curtilage of a building held for such purposes (see schedule 3, paragraph 3 of the 1980 Act).

6

The Housing and Building Control Act 1984 amended the 1980 Act by, as Mr Lofthouse appearing for Mr Dyer put it, "moving the goal posts". County councils were included in the category of local authorities whose lettings generally constituted secure tenancies, although there were still exceptions. Thus Mr Dyer would not have become a secure tenant if his contract of employment had required him to occupy his house for the better performance of his duties (schedule 3, paragraph 2(1)) or if he had been a fireman whose contract of employment required him to live in close proximity to a particular fire station (paragraph (2)(b)) But Mr Dyer was not a fireman and his contract of employment did not require him to occupy his house for the better performance of his duties, although it had been let to him in consequence of the fact that he was in the employ of the County Council and in the light of the fact that he would then better be able to perform his duties. Accordingly, as is now accepted, following the enactment of the 1984 legislation, Mr Dyer became a secure tenant.

7

This, however, did not of itself give Mr Dyer the right to buy. Changing the metaphor from ball games to horse racing, one of the fences which, as the appellants contend, would have thrown Mr Dyer had he sought the right to buy under the 1980 Act in its original form, namely, that his house was within the curtilage of another building held for the purposes of the landlord's functions under the Education Act 1944, re-appeared in a different form as one of the exceptions to the right to buy contained in Part I of schedule 1. For present purposes it suffices to set out sub-paragraphs (1) and (2) of paragraph 1 of that schedule, which in the schedule's amended form are in the following terms:

"(1) The dwelling-house either forms part of, or is within the curtilage of, the building to which sub-paragraph (2) below applies or is situated in a cemetery and (in either case) the dwelling-house was let to the tenant or to a predecessor being in the employment of the landlord or of a body specified in sub-paragraph (3) below.

(2) This sub-paragraph applies to a building if the building or so much of it as is held by the landlord—

and in this sub-paragraph 'housing purposes' means the purposes for which dwelling-houses are held by local authorities under Part V of the 1957 Act or purposes corresponding to those purposes."

  • (a) is held mainly for purposes other than housing purposes; and

  • (b) consists mainly of accommodation other than housing accommodation;

8

It is accepted by both parties to the appeal that (a) Mr Dyer's house does not form part of any other building and (b) it was let to him in consequence of his employment by his landlord, the appellant Council. Mr Dyer therefore has a right to buy his house unless that house is within the curtilage of a building which is held by the County Council mainly for purposes other than housing purposes and consisting of accommodation other than housing accommodation. It is also common ground that none of the buildings constituting the Kingston Maurwood College are held for housing purposes as defined. Thus the sole issue is whether Mr Dyer's house is or is not within the curtilage of another building or, by the application of section 6 of the Interpretation Act 1978, of more than one other building. This is a question of fact and degree and thus primarily a matter for the trial judge, provided that he has correctly directed himself on the meaning of "curtilage" in its statutory context.

9

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