The Lord Mayor and Citizens of the City of Westminster v The Most Noble Gerald Cavendish Sixth Duke of Westminster and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE BALCOMBE,SIR MICHAEL KERR |
| Judgment Date | 07 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0407-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0343 |
| Date | 07 April 1992 |
[1992] EWCA Civ J0407-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE HARMAN)
Royal Courts of Justice
Lord Justice Nourse
Lord Justice Balcombe
Sir Michael Kerr
92/0343
MR KIM LEWISON, Q.C., and MR PAUL MORGAN, instructed by G.M. Ives, Esq., City Solicitor and Secretary, appeared for the Appellants (Plaintiffs).
MR GAVIN LIGHTMAN, Q.C., and MR FRANK HINKS, instructed by Messrs Boodle Hatfield, appeared for the Respondents (Defendants).
By an order made on 26th November 1990 Mr Justice Harman made a number of declarations in relation to a dispute which had arisen between the Westminster City Council and the trustees of the will of the second Duke of Westminster over the Grosvenor Housing Scheme, an estate of more than 600 residential flats and other properties which were erected on land forming part of the Grosvenor Settled Estates known as the Millbank Estate in order to rehouse its working class inhabitants after their early 19th century dwellings, worn out as they were, had suffered further injury from the overflowing of the River Thames in January 1928.
Shortly stated, what happened at that time was this. On 6th October 1928 the parties entered into heads of agreement whereby the Duke, as tenant for life of the settled estates, agreed to grant to the Council a 999 year lease at a yearly rent of one shilling of about five acres of the Millbank Estate and the Council agreed, with a contribution from capital monies in the hands of the Grosvenor trustees, to erect thereon some 604 dwellings with shops, garden ground and so forth. The parties also agreed to promote a private bill for the purpose of giving effect to the scheme. The resultant act, known as the Westminster City (Millbank) Improvement Act 1929, was passed into law on 5th May 1929. It confirmed the heads of agreement, which were duly set forth in the second schedule, and made provision for the grant of the lease in accordance therewith, the terms of the lease being mainly left for agreement between the parties. It was eventually granted on 31st March 1937 after the buildings had been completed.
Mr Justice Harman decided a number of questions of construction arising out of the heads of agreement, the 1929 Act and the lease. He also decided whether the Lands Tribunal did or did not have jurisdiction to modify or discharge certain obligations arising thereunder. His decision is reported at [1991] 4 All E.R. 136. The Council appealed against parts of the judge's order and the trustees cross-appealed. Now the dispute has largely been settled by agreement. The judge's decision of the main issues which were before him is no longer questioned. This court is only concerned with two subsidiary issues arising under the Council's notice of appeal, on which their arguments have not been opposed by the trustees.
A consideration of these two issues requires me to read some of the provisions of the heads of agreement and the 1929 Act. Clause 1 of the heads of agreement provided for the grant of the lease. Except in regard to the term and the rent, it was provided that the lease should be in a form to be agreed between the parties and, in default of agreement, to be settled by one of the conveyancing counsel to the court. Clause 2 was in these terms:
"The Council to provide and erect on the housing site housing accommodation consisting of 604 dwellings as near as may be for the working classes with shops and courts or garden grounds to accommodate in the first place all tenants and occupiers of houses on the housing site and all tenants and occupiers of houses on the remainder of the Owner's Millbank Estate which on the 6th day of January 1928 were controlled by the Rent Restriction Acts (hereinafter referred to as 'controlled houses') and of other working class tenements on the same estate hereinafter referred to as the 'other tenements'. All such accommodation as and when ready and fit for occupation shall in the first place be offered to tenants and occupiers of houses on the housing site of 'controlled houses' and 'other tenements' (all to be selected from time to time by arrangement between the Council and the Owner) and no offer of accommodation therein shall be made to any other person or persons until all such tenants and occupiers have been offered accommodation therein and have either accepted the offer and been accommodated therein or have refused or have failed for one month to accept the offer."
Clause 4:
"The Council to be entitled to charge and be paid for any accommodation provided under clause 2 such rents as the Council shall think reasonable having regard to the rents charged by the Council for similar accommodation in other dwellings for the working classes belonging to the Council in the neighbourhood."
Section 2 of the 1929 Act contained a number of definitions, of which I will read two:
"'The improvement scheme' means the Millbank Improvement and Grosvenor Housing Scheme described in the First Schedule to this Act;
'The Grosvenor housing scheme' means so much of the improvement scheme as relates to the erection by the Council of buildings on the Millbank Estate for the purpose of rehousing".
Sections 4, 5 and 6 were in these terms:
"4. The improvement scheme is hereby confirmed and made binding on the Council and the owners of the Millbank Estate subject to the provisions of this Act and it shall be the duty of the owners of the Millbank Estate...
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