R (McLellan) v Bracknell Forest Borough Council; Reigate and Banstead Borough Council v Benfield and another

JurisdictionEngland & Wales
Judgment Date16 October 2001
Neutral Citation[2001] EWCA Civ 1510,[2001] EWCA Civ 1009
Docket NumberB2/2001/0740/B,C/01/0160 Case No: C/2001/0160 B2/01/0740
CourtCourt of Appeal (Civil Division)
Date16 October 2001
Reigate & Banstead District Council
(1) Rebecca Benfield
(2) Penelope Forrest

[2001] EWCA Civ 1009


Lord Justice Kay






Royal Courts of Justice


London WC2

MR D WATKINSON (instructed by Shelter. London EC4Y 9BL) appeared on behalf of the Appellant

MR A ARDEN QC (instructed by Reigate and Banstead District Council, Surrey RH2 0SH) appeared on behalf of the Respondent

Wednesday, 27th June 2001


This is an application to amend the grounds of appeal to seek further orders. Insofar as the application relates to a number of matters there is no dispute that the amendment should be allowed. They are issues that are going to have to be determined in any event and it is clearly right that they should be considered. There being no objection to those matters I have no difficulty at all in permitting them.


The one part of the application which is opposed is an application that there should be a declaration in the following terms: a declaration in consequence of the proceeding declaration that the decision of the respondent to elect to operate an introductory tenancy regime pursuant to the provisions of Part 5, Chapter 1, of the Housing Act 1996 was incompatible with Convention rights, namely with Article 14, prohibition of discrimination taken together with Article 8, right to respect for private and family life.


Mr Watkinson, who appears on behalf of the appellant, acknowledges that the phrasing of that is not altogether satisfactory. He would want, in effect, to go further and add to that which I have read out the words "and therefore unlawful." It is his argument that if it was unlawful there was a defence to the proceedings taken in the county court and that he should be entitled to have his declaration.


The first matter to observe is whether or not he is right that such a defence existed in these circumstances, no such defence was in any way raised in the county court. That has various consequences for any proposed appeal. First, the matter has never been considered; second, the issues that are raised would require evidence. That evidence has not been gathered. Complaint is made that the respondent local authority have known about the possibility of this for some time and could therefore have started to find out what evidence was available. I do not accept that they were under any duty at all to do so until such time as it became a live issue. Finding information of that kind is of necessity an exercise which carries expense, and until such time as a local authority has to meet such an argument I can see no justification for saying that the local authority should have made available the evidence that they would require to resist such a defence. If it had been raised in the county court, they would have dealt with the matter there. Even if it had been raised in the initial appeal and at that time permission had been granted in respect of that matter then they would have dealt with it. This court is not the forum for deciding factual matters. There are limited circumstances in which it is necessary for the court to embark on such an exercise but I do not consider that those circumstances arise in this case.


It is a matter of some importance what the evidence is. Mr Watkinson argues that in any event it is highly unlikely that there will be any dispute about that evidence. He has not yet seen the evidence and therefore how he can be so confident that that is so, I fail to see.


In the circumstances it seems to me that it would be unfair at this eleventh hour to allow this matter to be raised which ought to have been raised in county court if it was ever going to be raised. The amendment may very well cause prejudice to the local authority, and in those circumstances there can be no justification, whatever the legal merits of the defence being suggested, in permitting that part of the proposed amendments. I therefore refuse that aspect of the application but allow amendment in respect of the other matters.

(Application allowed; costs to be costs in the appeal).

Nina Mclellan
Bracknell Forest Borough Council
The Secretary of State for Transport
Local Government and the Regions
Interested Party
Reigate & Banstead Borough Council
Rebecca Benfield
First Defendant
Penelope Forrest
Second Defendant/Appellant
The Secretary of State for Transport,
Local Government and the Regions
Interested Party

[2001] EWCA Civ 1510


Lord Justice Waller

Lord Justice Latham

Lord Justice Kay



Case No: C/2001/0160





Mr Justice Longmore


His Honour Judge Cook

Royal Courts of Justice


London, WC2A 2LL

Representation to C/2001/0160

Nigel Pleming QC and Robert Latham (instructed by Messrs Dexter Montague & Partners, Berkshire RG1 7UD for the Appellant)

Timothy Straker QC and Sarah-Jane Davies (instructed by Corporate Services – Legal Bracknell Forest Borough Council, Berkshire RG12 1AU for the Respondent)

Philip Sales and Daniel Stilitz (instructed by Treasury Solicitor for the Interested Party)

Representation to B2/2001/0740

Andrew Arden QC and Christopher Baker (instructed by Head of Legal and Estates Services, Reigate and Banstead District Council for the Respondent)

David Watkinson and Beatrice Prevatt (instructed by John Gallagher, SHELTER, for the Second Defendant/Appellant)

Philip Sales and Daniel Stilitz (instructed by Treasury Solicitor for the Interested Party)

Lord Justice Waller



These two appeals raise important questions relating to the impact of the European Convention on Human Rights (the Convention) as enacted in the Human Rights Act 1998 (the HRA) on the provisions of the Housing Act 1996 (HA) in relation to introductory tenancies for council tenants.


The first appeal, Johns and McLellan v Bracknell Forest Borough Council (McLellan) comes from a decision of Longmore J (as he then was) dated 21 December 2000. Before him it was argued that the Introductory Tenants' Scheme under the HA was incompatible with Article 6, Article 8 and Article 14 of the Convention. Longmore J ruled that the provisions of the HA were not incompatible with the Convention on any of the grounds argued. Leave to appeal that decision was given by Keene LJ but only insofar as the decision turned on Article 6.


The second appeal, Forrest v Reigate and Banstead Borough Council (Forrest), is an appeal from a decision of His Honour Judge Cook sitting in the Epsom County Court dated 11 January 2001. He granted the respondent in that case possession of the premises occupied by Forrest ruling that there was no reasonable prospect of a finding that the mandatory provisions of the HA were affected by the Convention and the HRA. The appeal against his decision was transferred to the Court of Appeal pursuant to section 57 of the Access to Justice Act 1999. The issues on this appeal relate not only to Article 6, but Article 8 and 14 of the Convention. The notice of appeal has been amended, with leave, seeking various declarations of incompatibility by reference to Articles 8 and 14. Those amendments also contain a declaration of incompatibility of section 89 of the Housing Act 1980, the relevance of which will become clear.

Introductory Tenancies


It is convenient to trace the history of introductory tenancies and to consider the proper construction of the HA which introduced them, without regard at first to the provisions of the Convention and the HRA.


The background I can take very largely from the submissions of the Secretary of State prepared by Mr Sales and Mr Stilitz.


Under the Housing Act 1985, all tenancies of dwelling-houses granted by local authorities (with certain exceptions listed in Schedule 1 to the Act) are secure tenancies. The local authority can only terminate secure tenancies by obtaining a County Court order. The grounds for terminating such tenancies are set out in Schedule 2 to the Housing Act 1985. However, under the scheme of the 1985 Act, even where an authority has satisfied the court that a ground for possession exists, the court has a discretion whether or not to order possession.


In April 1995 the Department of the Environment produced a consultation paper entitled "A consultation paper on probationary tenancies". That paper is exhibited to the witness statement of Michael Barclay Gahagan. Certain findings are recorded in that consultation paper including the following:

"Anti-social behaviour by a small minority of tenants and others is a growing problem on council estates … the misery caused to tenants when the enjoyment of their home is spoilt by the activities of their neighbours or others can destroy their whole quality of life. Whole estates can be stigmatised by the anti-social behaviour of a few.

Such behaviour manifests itself in many different ways, including vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities, such as burglary.

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