R (Morris) v London Rent Assessment Committee and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Sir Murray Stuart-Smith,Lord Justice Brooke |
| Judgment Date | 07 March 2002 |
| Neutral Citation | [2002] EWCA Civ 276 |
| Docket Number | Case No: C/2001/1103 QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2002 |
[2002] EWCA Civ 276
Lord Justice Brooke
Lord Justice Mummery and
Sir Murray Stuart-Smith
Case No: C/2001/1103 QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice HOOPER
Simon Berry QC (instructed by Dewar Hogan) for the Appellant
Anthony Radevsky (instructed by the Treasury Solicitor) for the Respondent
Kenneth Munro (instructed by Pemberton Greenish) for the Interested Parties
This is an appeal by Mr David Morris from the dismissal by Hooper J on 4 May 2001 of his application for judicial review of (a) the decision of the London Rent Assessment Committee (the Committee) on 8 June 2000 to proceed to determine the rent of his Chelsea flat under the provisions of section 186 of the Local Government and Housing Act 1989 (the 1989 Act); and (b) the subsequent determination of the rent by the Committee on 21 September 2000 at £2,708 per month (£32,496 per annum).
The main dispute concerns the status of Mr Morris's tenancy of his flat. That is a matter of direct concern to his landlord, the Earl Cadogan and Cadogan Estates Limited (Cadogan). Cadogan have been joined as interested parties. The critical issue is whether, following the expiration of a long lease at a low rent, Mr Morris became, as he contends, a statutory tenant of the flat (within the meaning of the Rent Act 1977) under Part I of the Landlord and Tenant Act 1954 (the 1954 Act); or whether he became, as Cadogan contends and as the Committee has held, an assured tenant under the 1989 Act. If he is a statutory tenant, the Committee had no power to determine the rent of the flat under the 1989 Act. If he is an assured tenant, the Committee had power to determine the rent, subject, however, to a challenge by Mr Morris to its power to determine an annual rent in excess of £25,000, that being the qualifying limit for an assured tenancy.
The resolution of the principal issue of status turns on the validity of Cadogan's 1954 Act notice dated 21 April 1995 terminating the tenancy of the flat on 23 October 1995 and, if possession was not given up, proposing continuation as a statutory tenancy of the flat on stated terms. By virtue of section 186(3) of the 1989 Act, the relevant provisions of the 1954 Act ceased to apply after 15 January 1999, provided that the landlord had not served a notice under section 4 of the 1954 Act prior to that date stipulating a termination date prior to 15 January 1999. A notice was given prior to that date stipulating such a termination date, but section 4 requires the notice to be given "to the tenant in the prescribed form." The short point raised on the validity of this notice is whether, on the facts of this case, it was effectively given "to the tenant." Unusually for a landlord and tenant dispute, it is the landlord who contends that his notice is invalid and the tenant who contends that it is valid. Mr Morris asserts that the notice by Cadogan proposing the creation of a statutory tenancy on the termination of the long lease was a valid notice, even though it did not correctly name the tenant of the flat at the material time (21 April 1995). On the other hand, Cadogan asserts that the notice was defective and that in consequence no statutory tenancy was created. Instead the flat is subject to an assured tenancy, in respect of which the Committee had power to determine the rent at a figure in excess of £25,000 per annum.
In a clear and careful judgment, setting out a helpful overview of the intricacies of the statutory regime and its underlying policy, Hooper J held that the notice was invalid. So Mr Morris appeals.
Factual Background
The flat occupied by Mr Morris is Flat 2, 69 Cadogan Place, London SW1. It was subject to a long lease at a low rent carved out of a head lease also granted in 1962 by Cadogan to Dean Investments Limited. The underlease was dated 17 July 1962. It was for a term of 34 years less 10 days from 29 September 1961. The original tenant was Mr HG Barnby. He assigned the underlease to Mr CA Fry in 1979. In 1987 Mr Fry also acquired the headlease. The contractual term expired on 19 September 1995, but the lease continued by virtue of section 3(1) of the 1954 Act. Mr Morris had taken an assignment of the lease on 6 June 1995 from Mr Fry. Cadogan's notice dated 21 April 1995 proposing a statutory tenancy of the flat was not, however, addressed to Mr Fry, who was the tenant of the flat at the relevant date, but was only mentioned in the notice as a person living at a different address having an interest superior to the tenancy of the addressee. The notice was in fact addressed to the original tenant of the flat in the following terms:
"TO HG Barnby, tenant of premises known as Second Third and Fourth Floor Flat Cadogan Place London SW1."
Although there was no direct evidence before the judge as to the service of the notice, the case has throughout proceeded on the basis that the notice had been served on Mr Fry. (This court refused an application by Mr Morris to adduce fresh evidence on the issue of service of the notice.) Cadogan's case here and below was that the notice was invalid in consequence of the failure to name the tenant rather than by reason of non-service of the notice on the tenant. There is no doubt that by one means or another Mr Morris got to know of the notice. He had in fact been living in the flat since 17 April 1990 as Mr Fry's tenant. Soon after the assignment to him by Mr Fry, Mr Morris wrote from the flat to Cadogan on 12 June 1995 pointing out that any notice under the 1954 Act should now be re-addressed to him directly so that he could reply accordingly.
Although the primary question on the appeal concerns the validity of the 1995 notice, Mr Morris has an alternative argument, should he fail on that question and be held to have an assured tenancy. The secondary case arises from the service of a notice dated 11 June 1999 on him by Cadogan under the provisions of paragraph 4 of Schedule 10 to the 1989 Act, proposing an assured monthly tenancy of the flat at a rent of £3,900 per month (£46,800 per annum). As the parties could not agree upon the rent, the matter was referred to the Committee on 4 October 1999 under paragraph 10 of Schedule 10. On 21 September 2000 it determined a rent of £32,496 per annum. Mr Morris challenges the validity of the notice and of the determination of the Committee on the ground that the sums initially proposed and subsequently determined by way of annual rent exceeded £25,000, that being the statutory cap on the annual rent if a tenancy is to qualify as an assured tenancy.
A. Validity of 1995 Notice.
I would uphold the decision of Hooper J that the 1995 notice is invalid, that Mr Morris is not a statutory tenant of the flat and that the Committee had power to determine the rent.
In his concise submissions Mr Simon Berry QC relied on the principles laid down by the House of Lords in Mannai v Eagle Star [1997] AC 749 for the construction of landlord and tenant notices and on the decision of this court in York v Casey [1998] 2 EGLR 23, recently followed in Ravenseft Properties Limited v Hall, White v Chubb and Kaasseer v Freeman (19 December 2000), holding that those principles apply to the construction of statutory, as well as to contractual, notices. He relied on the context of Regulation 4 of the Landlord and Tenant (Notices) Regulations 1957, which stipulates that a notice which is to be given "in the prescribed form,"as a notice under section 4 of the 1954 Act is required to be, may be in a form "substantially to the like effect." So, he...
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