R v Bristol Corpn.ex parte Hendy

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE STAMP,LORD JUSTICE SCARMAN
Judgment Date01 November 1973
Judgment citation (vLex)[1973] EWCA Civ J1101-1
Date01 November 1973

[1973] EWCA Civ J1101-1

In The Supreme Court of Judicature

Court of Appeal

Revised.

Before

The Master of the Rolls (Lord Denning),

Lord Justice Stamp and

Lord Justice Scarman.

In the Matter of an Application by Glyn George Hendy for leave to apply for an order of mandamus and

In the Matter of a refusal by the Bristol Corporation to perform a statutory duty placed upon the Bristol Corporation by section 39 of the Land Compensation Act 1973

Application (by leave of the Court of Appeal given on 15th October 1973) for an order that the Applicant be granted leave to apply for an order of mandamus directed to the Bristol Corporation to order that the said Corporation secure that the Applicant will be provided with suitable alternative residential accommodation on reasonable terms pursuant to section 39 of the Land Compensation Act 1973.

Miss SHELAGH E. MORGAN (instructed by Messrs. Adams, Brown & Co. of Bristol) appeared on behalf of the Applicant.

Mr. ALAN FLETCHER (instructed by The Town Clerk, Bristol) appeared on behalf of the Respondent Bristol Corporation.

THE MASTER OF THE ROLLS
1

This case raises a point under the Land Compensation Act of 1973 which came Into force on 23rd May 1973.

2

In Bristol a Mr. Hendy, his wife and two daughters, were occupying basement rooms at 164 Lower Cheltenham Place. He was a weekly tenant at some £4 a week. He had security of tenure. But it turned out that these basement rooms were quite unfit for human habitation. They could not be made fit at reasonable expense. They came within the Housing Act of 1957. Accordingly under sections 16 and 18 of the Act, the local authority were under a duty to make a closing order. On 16th October 1972 they made a closing order. That meant that the tenant had no longer any protection under the Rent Acts. The landlord was entitled to turn him out. The landlord did so. He went to the County Court and got an order for possession of those basement rooms. The order was made on 11th April for possession on 8th May. At that time the Bristol Corporation said that they were not going to provide him with other accommodation unless he paid some arrears owing to another Council. They were entitled to take that line at that time because the new Act had not come into operation.

3

On 23rd May the new Act came into operation. It puts on a Corporation a duty, when a person is displaced, to provide suitable alternative residential accommodation. Section 38 says: "Where a person is displaced from residential accommodations on any land in consequence of -

(b) the making …. of a housing order …. in respect of a house …. and suitable alternative residential accommodation on reasonable terms is not otherwise available to that person, then, subject to the provisions of this section, it shall be the duty of the relevant authority to secure that he will be provided with such other accommodation"

4

It is plain that when this Act came into operation Mr. Hendy was displaced under a housing order. So a duty was cast upon the Bristol Corporation to secure that he was provided with housing accommodation. At first the Corporation did not appreciate the impact of the Act, A fortnight after it came into force, on 7th June, 1973, a letter was written on their behalf saying "the Housing Committee are not prepared to offer you Council accommodation" But Mr. Hendy applied for and got legal aid and he has been well represented by solicitors and Counsel. At first the Bristol Corporation offered temporary accommodation at a flat at 19 Mina Road, Bristol. It had two bedrooms, one living room, kitchen, bathroom and toilet. He got it all for £4. 55 a week: and for that sum, he also was provided with lighting and the laundry of his bed linen. That would seem very suitable accommodation; but he or his advisers took exception to it because it was only temporary. It was called a "short stay accommodation".

5

So Mr. Hendy or his advisers applied to the Divisional Court for a mandamus; but it was refused. The Divisional Court said Mr. Hendy was housed already at the moment, and so they would not make an order.

6

Now Miss Morgan applies to this Court. We have had the advantage of a very clear argument by her and also much help from Mr. Alan Fletcher for the Bristol Corporation. The Corporation are anxious to know what the legal position is under this new statute: does it mean that, if a person is displaced under a housing order, he immediately goes to the top of the queue of people waiting for Council houses? Does it mean that he is to be treated more favourably than other persons whom they wish to house?

7

The Town Clerk stated that this is what the Corporation are prepared to do:-

8

"The Corporation are prepared to fulfil their duty by (a) offering to the Applicant as soon as practicable a tenancy of suitable residential accommodation on the terms normally offered by the Corporation to prospective tenants and (b) lodging the Applicant and his family in temporary accommodation until a suitable dwelling becomes available"

9

Miss Morgan suggested that that offer was not sufficient to fulfil their duty. She pointed out that the words of the statute are -"it shall be the duty of the relevant authority to secure that he will be provided with such other accommodation," She said that this was a higher duty than they owed to other persons on their housing list; and so Mr. Hendy should be given priority over them. I cannot accept that submission. I think that the Corporation fulfil their duty when they do their best, as soon as practicable, to get him other accommodation. No doubt they can take into account the fact that he has been displaced under a closing order; but it does not mean that he takes priority over everybody else in the housing list. His circumstances must be considered along with the others and a fair decision made between them.

10

Miss Morgan next pointed out that Mr. Hendy was previously protected by the Rent Act, whereas in a Council house he will not be protected. Miss Morgan admitted that in practice a Council house tenanthas virtually as much security of tenure as a Rent Act tenant. So long as he pays his rent and fulfils the conditions of his tenancy, they will not turn him out. In these circumstances, I think that the Corporation have done enough. They fulfil their duty if they let him have a Council house on the terms normally offered to prospective tenants.

11

Miss Morgan then mentioned the Town Clerk's reference to "temporary accommodation until a suitable dwelling house becomes available" She said that might mean that Mr. Hendy might be moved every three weeks from one place to another. I do not think that there is anything in that point. If Mr. Hendy does have frequent moves, that cannot be helped. The Corporation have only to do the...

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15 cases
  • R v Wandsworth London Borough Council and Another, ex parte Wingrove ; R v Same, ex parte Mansoor
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    • Court of Appeal (Civil Division)
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    ...which is made and which may, perhaps must, be accepted as an interim measure (as happened though in a different context in R. v. Bristol Corporation ex. p. Hendy 1974 1 W.L.R. 498). That would mean that the duty remained to be performed when the interim period was 68This question, however,......
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    ...ACT 1990 S3(a) RSC O.84 r21(1) LEWIS JUDICIAL REMEDIES IN PUBLIC LAW 3ED 2004 232 PARA 6-057 R v BRISTOL CORPORATION, Ex parte HENDY 1974 1 WLR 498 HOEY v MIN FOR JUSTICE 1994 3 IR 329 1994 1 ILRM 334 COURTHOUSES (PROVISION & MAINTENANCE) ACT 1935 S3(1) BRADY v CAVAN CO COUNCIL 1999 4 IR 99......
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    ...public body has shown that it is doing all it honestly can to comply with its statutory duty, [ R. v. Bristol Corporation, ex p. Hendy [1974] 1 W.L.R. 498.] or where an error has been substantially cured. [ R. v. Secretary of State for Social Services, ex p. Association of Metropolitan Aut......
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1 books & journal articles
  • The Usual Suspects? Public Participation Under the Aarhus Convention
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    ...– Final Report (2000),available at ohttp://www.planning.odpm.gov.uk/court/4, Chapter 13.146 See RvBristol Corporation ex parte Hendy [1974] 1 WLR 498 and RvSecretary of State for theHome Department ex parte Bindel [2001] Imm AR 1.Public Participation Under the Aarhus ConventionJanuary 2003]......

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