The Queen v The Council of the City of Plymouth and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE NOURSE,THE VICE-CHANCELLOR |
| Judgment Date | 09 April 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0409-2 |
| Date | 09 April 1987 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0315 |
[1987] EWCA Civ J0409-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION.
DIVISIONAL COURT.
MR JUSTICE HODGSON
Royal Courts of Justice,
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson)
Lord Justice Neill,
Lord Justice Nourse
87/0315
CO/1189/84
and
LORD IRVINE, Q.C. and MR G.K.R STOKER (instructed by Mr A. Forbes Watson, Chief Executive and Town Clerk, Plymouth City Council) appeared on behalf of the appellants (respondents)
MR J.B.W MCDONNELL, Q.C. and MR R. de LACY (instructed by Messrs Trobridges) appeared on behalf of the respondent (applicant).
This a is an appeal from the order of Hodgson J. dated 21st February 1986 whereby the applicant, Mr John Charles Freeman ("Mr Freeman"), was granted certain declarations against the Council of the City of Plymouth ("Plymouth") and Cornwall County Council ("Cornwall") relating to a house and garden known as Maker Lodge ("The Lodge") at Mount Edgcumbe in the County of Cornwall.
The main question which arises in this appeal is whether Mr Freeman has a statutory right to purchase the freehold of the Lodge pursuant to the Housing Act 1980 ("the Act of 1980"), as amended by the Housing and Building Control Act 1984 ("the Act of 1984").
The second question which arises is whether Mr Freeman was a "secure tenant" of the Lodge within the meaning of section 28 of the Act of 1980 between 3rd October 1980 (when the relevant provisions of the Act of 1980 came into force) and 26th August 1984 (when the relevant provisions of the Act of 1984 came into force).
It is now common ground that since 26th August 1984 Mr Freeman has been a secure tenant of the Lodge. It is also common ground that if Mr Freeman was a secure tenant of the Lodge before 26th August 1984 he had the statutory right between 31st May 1983 and 24th July 1984 to buy the freehold of the Lodge, though during that period he did not take any step to exercise that right.
In due course I shall have to consider the relevant statutory provisions in a little detail. At this stage, however, I propose to state the relevant facts as shortly as possible and to provide an introduction to the legislation.
The facts:
The land which now forms the Mount Edgcumbe Country Park belonged at all material times before 1971 to the Earls of Mount Edgcumbe. In his younger days Mr Freeman worked for the sixth Earl as a woodman, forester and gamekeeper, but he had to give up his employment when his wife became disabled through illness.
In 1956 the sixth Earl granted Mr Freeman a quarterly tenancy of the Lodge at a rent of £52 a year (43). Mr and Mrs Freeman have lived there ever since. The Lodge is situated on the edge of what is now the Country Park and is adjacent to the entrance by Maker Church.
In 1965 the sixth Earl of Mount Edgcumbe died leaving no direct heir. He was succeeded by a cousin, who sold his property in New Zealand in order to return to the family home in Cornwall.
In 1970, however, negotiations began for the sale of the estate to the predecessors of Plymouth and Cornwall. By a conveyance dated 26th February 1971 the two Councils jointly acquired the freehold of the estate for the purpose of providing a country park under the provisions of the Countryside Act 1968 ("the Act of 1968").
It is now common ground that the acquisition was made pursuant to section 7(1) of the Act of 1968 which gave local authorities (including County Councils) the power "to provide a country park, that is to say a park or pleasure ground to be used" for the purpose of "providing, or improving, opportunities for the enjoyment of the countryside by the public" (section 6(1) of the Act of 1968).
Following the acquisition of the Mount Edgcumbe estate Mr Freeman became a public sector tenant, his landlords being the two Councils who administered the Country Park through a joint committee. He paid his rent to Plymouth who received it on behalf of the two authorities.
So matters remained until 3rd October 1980 when the Act of 1980 came into force. The broad purpose of the Act of 1980, so far as material, was twofold:
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(a) Where a dwelling-house was let as a separate dwelling by a local authority or by certain other bodies, to confer on the tenant the status of a "secure tenant" (section 28); and
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(b) subject to certain exceptions, to give secure tenants the right to buy the freehold of their dwelling-houses (section 1).
In due course these provisions of the Act of 1980 came to the attention of Mr Freeman, who decided that he would like to buy the freehold of the Lodge. Accordingly, on 6th March 1981, Mr Freeman served on Plymouth and Cornwall a written notice under section 5 of the Act of 1980. The Councils, however, who have always maintained that at some time in the future they will require the Lodge for use as an information centre for the Country Park, served a counter-notice dated 26th March 1981 giving two reasons for denying that Mr Freeman was entitled to buy the Lodge.
The first reason was that as the Lodge was owned Jointly by Plymouth and Cornwall, Mr Freeman was not a secure tenant within the meaning of section 28 of the Act of 1980.
I shall have to examine this reason in greater detail later in this judgment. For the moment it is sufficient to say that it was based on the contention that, as "the landlord interest" in the Lodge belonged to Plymouth and Cornwall jointly and as Cornwall was not "a local authority" as defined in section 50(1) of the Act of 1980, the "landlord condition" prescribed in section 28(1) was not satisfied.
The second reason put forward, however, was unanswerable. Thus in the Act of 1980 in its original form it was provided that in certain circumstances even a secure tenant would not have the right to buy. These exceptions were set out in section 2 and in Schedule 1.
Paragraph 1 of Part I of this Schedule provided that the right to buy did not arise where "the landlord is a local authority and the dwelling-house is held by it otherwise than under Part V" of the Housing Act 1957.
This meant that the right to buy from a local authority was confined at that stage to tenants of dwelling-houses which formed part of the housing stock of the local authority. It will be remembered that the Lodge was acquired under and for the purposes of the Countryside Act 1968: accordingly, the statutory restriction contained in Schedule I placed an insurmountable obstacle in the path of Mr Freeman even if he had been able to establish that, despite the joint ownership of the freehold, he was a secure tenant of the Lodge.
Following the service of the counter-notice no further step was taken by Mr Freeman, and it is now common ground that his March 1981 notice must be treated as having lapsed and as having no further relevance in this case.
I come now to 1983.
It was provided in section 2(5) of the Act of 1980 that the Secretary of State could "by order enable the right to buy to be exercised in relation to dwelling-houses held by local authorities otherwise than under Part v" of the Housing Act 1957.
On 3rd May 1983 the Secretary of State exercised this power. By The Housing (Extension of the Bight to Buy) Order 1983 ( SI 1983 No 672), which came into operation on 31st May 1983, the right to buy was extended to dwelling-houses held by a local authority otherwise than under Part V of the Housing Act 1957, though there were certain excluded dwelling-houses specified in Article 3 of the Order.
As it is no longer contended on behalf of the Councils that Article 3(1)(c) of the Order has any relevance in this appeal I need say no more about the classes of dwelling-houses excluded by Article 3.
The effect of the 1983 Order was immediately to invalidate the second reason advanced by Plymouth and Cornwall in their counter-notice dated 26th March 1981, though of course the contention that Mr Freeman was not a secure tenant remained.
On 25th October 1983 Plymouth and Cornwall served on Mr Freeman a notice to quit the Lodge expiring on 25th March 1984 (72). Mr Freeman then consulted his solicitors, who wrote to the joint committee acting for the Councils on 11th November 1983. Correspondence between the solicitors and the joint committee ensued. Finally, on 15th June 1984, Mr Freeman's solicitors wrote to the joint committee as follows (83):
"You have basically indicated in correspondence that it is your intention to increase the rent and alter the terms under which our client holds the property.
We have given this matter serious consideration and are of the view that our client has a secure tenancy within the meaning of section 28 of the Housing Act 1980 or alternatively is a protected tenant within the meaning of section 141 of the Rent Act 1977. We therefore are of the view that our client may well be entitled to refund for a period of two years in respect of the over payments of rent which he has made".
The phrase "the over payments of rent" was a reference, I understand, to the fact that from 25th March. 1980 Mr freeman had been paying rent at the rate of £416 per annum: see p.79.
But the Councils continued to dispute Mr Freeman's contention that he was a secure tenant. Accordingly, towards the end of June 1984 Mr Freeman started proceedings in the Plymouth County Court claiming a declaration that his tenancy was a secure tenancy within the meaning of the Act of 1980 or, alternatively, that he was a protected tenant under the Rent Act 1977.
These...
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