Highland Council (formerly Ross and Cromarty District Council) v Patience and Others
| Jurisdiction | England & Wales |
| Judge | Lord Goff of Chieveley,Lord Griffiths,Lord Mustill,Lord Steyn,Lord Clyde,LORD GOFF OF CHIEVELEY,LORD GRIFFITHS,LORD MUSTILL,LORD STEYN,LORD CLYDE |
| Judgment Date | 12 December 1997 |
| Judgment citation (vLex) | [1996] UKHL J1212-6 |
| Court | House of Lords |
| Date | 12 December 1997 |
| Docket Number | No. 5. |
[1996] UKHL J1212-2
HOUSE OF LORDS
Lord Goff of Chieveley
Lord Griffiths
Lord Mustill
Lord Steyn
Lord Clyde
and Others
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons he has given, I too would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons he has given, I too would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Clyde. For the reasons he has given, I too would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Clyde. For the reasons he has given, I too would allow this appeal.
My Lords,
The presentation of this case has undergone some significant changes since the decision of the Second Division of the Court of Session. The third defenders who are the feudal superiors of the appellants had been seeking to insist on the clause of pre-emption which appeared in the appellants' title. They had argued successfully in the lower courts that the appellants as proprietors of the dwelling house in question were not entitled to sell or implement the sale of that dwelling house to the second defenders who as their tenants in occupation of the dwelling house had sought to exercise their statutory right to purchase it. However after the case had been decided by the Second Division in their favour the respondents proceeded to grant a gratuitous minute of waiver of their rights relating to the dwelling house thereby removing the particular cause of dispute in the case. The appellants persisted in their appeal and a question then arose whether that was competent. However it became evident that although this issue between the appellants and the third defenders was no longer live in respect of the particular tenancy held by the second defenders, except as to costs since the third defenders wished to be heard on that matter, there remained a live and real problem in relation to other houses let on secure tenancies by the appellants which lie within lands which may be affected by such a clause of pre-emption as existed in the present case. Moreover the problem of the apparent conflict between such a pre-emption clause and the right to acquire given by statute to a secure tenant is a point of practical importance to local authorities in Scotland and requires resolution. This House determined that the appeal was competent and, since the third defenders then decided not to argue the case before this House reserving only their position regarding costs, an amicus curiae was appointed by the Lord Advocate to secure a balanced presentation of the argument. Gratitude should be expressed to Mr. Bonomy for the careful assistance which he gave in performing that function.
It should also be recorded that following the recent reorganisation of local government in Scotland the identity of the appellants has changed and the appropriate procedural steps have been taken to recognise this change. While thus the specific issue relating to the particular dwelling house owned by the predecessors of the present appellants is no longer of moment there is here a substantial question to resolve and the present action is a proper vehicle for that purpose. This is a further example of what Lord Brougham long ago referred to as "that most beneficial and admirably contrived form of proceeding, called a declaratory action" ( Earl of Mansfield v. Stewart (1846) 5 Bell 139, 160).
There has been another change in the presentation of the argument which is not insignificant. The issue of the construction of the pre-emption clause was treated in the argument before the Second Division as dependent upon the appellants' success on the question whether the existence in the landlord's title of a clause of pre-emption prevented the process of a statutory sale of a secure tenancy under the provisions of the Housing (Scotland) Act 1987. But counsel for the appellants before this House submitted that both questions were equally open and he presented argument on both of them. While most of the discussion was taken up with the matter of the statutory construction it seems to me that logically the first question is whether the clause of pre-emption applies and I turn immediately to that issue.
The clause of pre-emption appears in a feu charter of 11 September 1939 recorded on 16 September 1939 in the Register of Sasines. The feu charter was granted by the predecessors in title of the respondents to the County Council for the County of Ross and Cromarty. The appellants are the statutory successors of that authority. The clause was in these terms:
"(Fourth) The feuars shall not sell or dispone the feu or any part thereof or any of the buildings thereon to any person or persons whomsoever until the same shall first have been offered to the Superiors at a price to be fixed by arbitration."
The question is whether this clause applies to the process which Parliament has provided under the Housing (Scotland) Act 1987 for the acquisition of his dwelling house by a secure tenant. I am of the view that it does not.
I shall come later to the particular statutory provisions but it is sufficient at this stage to observe that, provided he qualifies under the statutory provisions, the tenant has a right to acquire the dwelling house and the landlord is obliged to sell and convey it to him. While the statute uses the terminology of "purchase" and "sell" both the serving of the relevant notices and the constitution of the contract of sale are matters ordered in terms of the statutory provisions and the statutory purchase which is achieved by the procedure is not a consensual sale.
There is no special context in the use of the word "sale" in clause four which can deprive it of its ordinary meaning of a voluntary contract. As was recognised in Kirkness v. John Hudson & Co. Ltd. [1955] A.C. 696 the word is not commonly used to describe a compulsory acquisition under the Lands Clauses Consolidation Acts. It is commonly used to mean a consensual sale. Similarly the word "dispone" in the context of the clause under consideration should also be understood as referring to a voluntarily conveyance, whether on sale or by way of gift. I do not find it necessary to rely on any rule requiring a strict construction of such a clause nor the rule of contra proferentem. These rules merely affirm the conclusion to which I have reached. It is sufficient in my view to look to the words used without such further assistance.
Beyond the ordinary meaning of the words used it is proper to construe the deed as at its date in 1939. It is inconceivable that at that date the parties could have contemplated that council tenants would be given a statutory right to acquire their homes and that the public sector landlord would be obliged to sell and convey their houses to them. For that reason also I am unable to construe the clause as covering the procedure which has occurred in the present case. Furthermore that the sale or disposition at which the clause of pre-emption strikes is of a voluntary character is confirmed to my mind by the consideration that the clause is fenced with an irritancy. It cannot have been the intention of the parties that the feudal grant could be annulled by a sale of the subject in question which the landlord was bound under statute to carry out.
The conclusion which I have reached as matter of the construction of this clause is one which the Lord Justice Clerk in the Second Division indicated was one which could be supported with arguments of considerable force had the submission stood alone. However on the approach taken by the appellants in the Second Division he was unable to decide the case on this point. In the presentation before this House the submission was made as a distinct argument and in my view it is sound.
While that is sufficient to determine the matter so far as the construction of the clause is concerned, mention should be made of two further lines of argument related to it. It was submitted that the words should not be construed so as to include the grant of a sub-feu such as has been made in the present case by the appellants to the tenants. But I have little difficulty in holding that the form of the conveyance adopted would still fall within the word "dispone." It is inappropriate to refer to section 338(1) of the Act of 1987, where it is provided that in that Act "sell" and "sale" includes "feu." The ordinary use of the word seems to me sufficient to embrace both a disposition and the creation of a sub-feu. The only remaining submission in relation to the clause was that it was void for uncertainty and unenforceable. However this was not a matter which was canvassed in the lower courts. It is a matter which does not require to be investigated in the present case and I would say nothing about it.
I turn next to the question which occupied the greater part of the hearing. That is whether on a proper construction of the provisions of the Act of 1987 the secure tenant can exercise his right to purchase his dwelling house regardless of a right of pre-emption in the title of the landlord. It was recognised by the Lord Ordinary that this involves a stark choice between holding on the one hand that all rights inconsistent with the right to purchase are superseded by the legislation and on the other hand that the legislation may only operate when no...
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