Shelley v London County Council. Harcourt v London County Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Wright,Lord Uthwatt,Lord du Parcq,Lord Morton of Henryton |
| Judgment Date | 09 November 1948 |
| Judgment citation (vLex) | [1948] UKHL J1109-2 |
| Date | 09 November 1948 |
| Court | House of Lords |
[1948] UKHL J1109-2
Lord Porter
Lord Wright
Lord Uthwatt
Lord du Parcq
Lord Morton of Henryton
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Shelley against London County Council, that the Committee had heard Counsel, as well on Tuesday the 22d, as on Wednesday the 23d and Thursday the 24th, days of June last, upon the Petition and Appeal of Florence Shelley (Married Woman), of 8 Barnaby Buildings, Leroy Street, London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 18th of November 1947, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the London County Council, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 18th day of November 1947, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
Upon Report from the Appellate Committee, to whom was referred the Cause Harcourt and others against London County Council, that the Committee had heard Counsel, as well on Tuesday the 22d, as on Wednesday the 23d and Thursday the 24th. days of June last, upon the Petition and Appeal of Ethel Harcourt, of 4 Wellesley Buildings, Churchway Estate, in the County of London, Florence Ivy Eley, of 17 Wellesley Buildings, Churchway Estate aforesaid, Leslie Hill, of 1 Seymour Buildings, Churchway Estate aforesaid, and Florence Griffiths, of 33 Seymour Buildings, Churchway Estate aforesaid, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 18th of November 1947, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the London County Council, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 18th day of November 1947, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
It is not in my opinion necessary to set out in detail the exact circumstances in which these appeals are brought. It is enough to state that Mrs. Shelley, the Appellant in the first case, occupied a flat, 8, Barnaby Buildings, of which the Respondents are landlords. This flat is rated at £11 a year and she pays a rent of 14s. 5d. a week or £37 9s. 8d., i.e., more than £20 a year. Notice to quit was served on her, expiring on the 9th December, 1946. She failed to go out and accordingly the London County Council took proceedings to obtain possession under the Small Tenements Recovery Act, 1838, after taking the necessary preliminary steps.
Mrs. Harcourt is the occupier of other premises belonging to the Respondents, also of a value exceeding £20 per annum, and, like Mrs. Shelley, was given due notice to quit, and as she refused to do so had similar proceedings taken against her by the Respondents.
Both tenants are members of the working classes and the tenements occupied by them were erected by the Respondents under the provisions of the Housing of the Working Classes Act of 1890 for the housing of the working class.
Mrs. Harcourt had been guilty of a breach of a condition of her tenancy and refused to abate it, but save for her contumacy, it was not of serious consequence and no stress was laid upon it in argument before your Lordships. In the other case there was no complaint of any breach of the terms of occupation and therefore in both cases the main question for the decision of your Lordships' House is whether the Rent and Mortgage Interest Restrictions Acts, 1920-39, apply to an action by a local authority to recover possession of a dwelling house from a tenant who has been provided with accommodation by the local authority under its statutory powers for the housing of the working class in a case where the action of the local authority has been taken with a view to the housing of another member of that class.
Two subsidiary questions were also raised: the first being whether the provisions of the Small Tenements Recovery Act, 1838, give a right of recovery of possession in such a case: the second whether, if they do, the justices in an action under Section 1 have a discretion to refuse or to postpone the issue of a warrant for possession.
In Mrs. Shelley's case the learned magistrate sitting at Tower Bridge to whom application had been made issued a warrant for possession but directed that it should remain in force but should not be executed for three months and that the Appellant should have liberty to apply before the expiration of that time for a further period of extension.
In Mrs. Harcourt's case a similar application was made to the learned magistrate sitting at Clerkenwell, who held that he had no discretion either to refuse or to postpone possession and accordingly issued a warrant for possession in 30 days from the date of issue.
Each of the learned magistrates stated a case for the opinion of the High Court and the two matters were considered together both by the Divisional Court and by the Court of Appeal. Both Courts agreed with the latter decision, but in the first case remitted the matter to the learned magistrate with an intimation that the warrant could be suspended for not more than 30 days, and in the second case affirmed the order of the learned magistrate. From these orders the Appellants appeal to your Lordships' House.
My Lords, each of the Appellants is undoubtedly protected by the provisions of the Rent and Mortgage Interest Restrictions Acts unless that protection is taken away by the terms of the Housing Act of 1936.
Section 156 (1) ( a) of that Act so far as is material is in the following terms:—
"Nothing in the Rent and Mortgage Interest Restrictions Acts, 1920 to 1933, as amended by any subsequent enactment shall be deemed to … prevent possession being obtained ( a) of any house possession of which is required for the purpose of enabling a local authority to exercise their powers under any enactment relating to the housing of the working classes."
Section 83 (1) of the same Act reads:—
"The general management, regulation, and control of houses provided by a local authority under this Part of this Act shall be vested in and exercised by the authority, and the authority may make such reasonable charges for the tenancy or occupation of the houses as they may determine,"
and the Act itself stipulates that certain classes of houses (amongst which these are included) provided under earlier statutes shall be treated as if they were provided under the Statute of 1936.
If then the general management, regulation and control of houses includes the right to oust the tenant, the local authority in giving notice to quit were exercising their powers under an enactment relating to the housing of the working classes, and the protection afforded to tenants of private owners does not apply.
For the Appellants it was argued that management, regulation and control could be fully exercised even though the tenants had a right to retain their holdings by reason of the provisions of the Rent Acts, and urged that, as the Respondents were prepared to accept the position that they were subject to the obligation not to exceed the statutory rent, so they were similarly obliged to retain their tenants as statutory tenants.
My Lords. I do not know whether the concession in question is necessarily made or not, but whether the Rent Acts apply to the extent of fixing a statutory rent or not, "management" must in my view include a right to terminate the tenancy so far as the general law allows, i.e., after due notice.
It is to my mind one of the important duties of management that the local body should be able to pick and choose their tenants at their will.
It is true that an ordinary private landlord cannot do so, but local authorities who have wider duties laid upon them may well be expected to exercise their powers with discretion, and in any case the wording of the Act seems to me to necessitate such a construction.
As to the other two points:—
(1) Under the Act of 1838 the jurisdiction of the magistrate was limited to premises of an annual value of less than £20, but this limitation of jurisdiction has been expressly widened by Section 156 (2) of the Housing Act of 1936 which ordains that,
"Where a local authority, for the purpose of exercising their powers under any enactment relating to the housing of the working classes, require possession of any building or any part of a building of which they are the owners, then, whatever may be the value or rent of the building or part of a building, they may obtain possession thereof under the Small Tenements Recovery Act, 1838, as in the cases therein...
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