Tomkins v Basildon District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hart,Lord Justice Latham |
| Judgment Date | 24 June 2002 |
| Neutral Citation | [2002] EWCA Civ 876 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2002 |
| Docket Number | Case No: B2/2001/1637 CCRTF |
[2002] EWCA Civ 876
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ YELTON
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Latham and
Mr Justice Hart
Case No: B2/2001/1637 CCRTF
Mr Ewan Paton (instructed by Messrs Palmers, Solicitors) for the Appellant
Mr Nicholas Taggart (instructed by Basildon District Council Solicitors) for the Respondent
This is an appeal, with the permission of the judge, from an order of HHJ Yelton in Southend County Court dated 9 July 2001, whereby he declared that:
"(1) By 1990 the terms of the lease of "Brunswick", Lower Dunton Road, Bulphan, Essex dated 14 November 1978 were varied so that the said lease was not surrendered but the said property was thereafter a dwelling house let as a separate dwelling within the meaning of the Housing Act 1985.
(2) The Claimant is entitled to reside in the said property subject to the protection afforded by the said Act."
and ordered the respondent to pay the appellant's costs.
The appellant was the claimant below and had there sought declarations (1) that she was entitled to reside at the property as her residence and (2) a declaration that she was entitled to the protection of the Housing Act 1985.
The reason for the appellant's dissatisfaction with the declaration made by the judge is that, while it meets her claim to be entitled to security of tenure under the 1985 Act, its effect is to deny her the benefit of s.11 of the Landlord and Tenant Act 1985. That section, if applicable, would impose repairing obligations on the respondent. Under the lease dated 14 November 1978 the repairing obligation lay with the tenant.
The factual background as found by the judge was as follows. The appellant (who was born in 1943) left school at the age of 15 and went to work for a Mrs Barker, a greyhound trainer, at Rayleigh Stadium as a kennel hand. In 1966 she went to live with Mrs Barker at Belmont, Hoefield Avenue, Basildon. She continued to work as a kennel hand and to assist Mrs Barker domestically. She was not paid wages, but was kept by Mrs Barker. In 1975 the landlords of Belmont (the Basildon Development Corporation), who wished to buy out Mrs Barker's interest under compulsory powers, offered her a lease of Brunswick. The offer was accepted, and a lease of Brunswick dated 14 November 1978 ("the lease") was taken in the names of Mrs Barker and the appellant.
The lease was for a term of 20 years at a rent for the first 5 years (described as concessionary) of £500 per annum and thereafter at £1100 per annum (subject to 5 yearly reviews) the rent being payable at quarterly intervals in advance. The property comprised in the lease was described a by reference to its site "TOGETHER WITH the bungalow and outbuildings erected thereon (including without prejudice to the generality of the foregoing the fifteen kennels recently erected thereon by the Corporation)". Clause 2 (5) of the lease imposed a full repairing obligation on the lessees. By Clause 2(15) and (16) the lessees covenanted as follows:—
"(15) To use the demised premises for carrying on the trade or business of the keeping and training of greyhounds and for residential accommodation incidental thereto and not to do or permit or suffer to be done anything to injure the connection or goodwill of such business
(16) Not to carry on or permit or suffer to be carried on in or upon the demised premises or on any part thereof any trade or business other than that specified in Clause 2(15) hereof and not to sell or deal in articles commodities or goods of any description whatsoever."
It is not disputed that, as originally granted, the tenancy granted by the lease was one to which Part II of the Landlord and Tenant Act 1954 applied: the property comprised in the tenancy included premises which were occupied for the purposes of a business carried on by the tenants (see section 23 of the 1954 Act).
The judge found that in 1986 the commercial activity at the property had ceased. Mrs Barker (who was then in her eighties) had suffered a stroke. The appellant thereafter devoted herself full time to the care of Mrs Barker who eventually died on 16 November 1995.
At some point after the grant of the lease the freehold reversion became vested in the Commission for New Towns (Basildon) ("the CNT"), the statutory successor of the Basildon Development Corporation. In 1994 the CNT transferred it to the respondent.
On 24 April 1998 the respondent served notice on the appellant under s.25 of the 1954 Act terminating the tenancy on 14 November 1998. On the 1 June 1998 solicitors on behalf of the appellant served a counter-notice. No application for a new tenancy was thereafter made, and on 11 August 1998 the appellants' solicitors advised that she was not in a position to make such an application. The claims made in these proceedings do not appear to have been advanced on the appellant's behalf until after the time for applying for a new 1954 Act tenancy had expired These proceedings were commenced on 16 November 1998.
Section 79(1) of the Housing Act 1985 provides that, subject inter alia to the exemptions in Schedule 1,
"a tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in Sections 80 and 81 as the landlord condition and the tenant condition are satisfied."
Included in the exceptions in Schedule 1 is the following paragraph:—
"11. A tenancy is not a secure tenancy if it is one to which Part II of the Landlord and Tenant Act 1954 applies (tenancies of premises occupied for business purposes)."
It was common ground before the judge that where property is originally let under a tenancy to which Part II of the 1954 Act applies, but the business user at some point ceases and the property is thereafter used solely for residential purposes, that fact alone does not suffice to change the tenancy into one to which the 1985 Act applies. For this result to follow, not only must the landlord condition and the tenant condition be satisfied (as they were here), but it must also be shown that the premises were "let as a separate dwelling". As Lord Denning MR pointed out in Cheryl Investments v Saldanha [1978] 1 WLR 1329 at 1334 that will not be the case "unless the landlord agrees to the change".
Section 11 of the Landlord and Tenant Act 1985 implies a repairing covenant by the lessor in any case to which the section applies. The general rule is that the section applies only to "a lease of a dwelling-house granted…. for a term of less than seven years": see section 13. It does not, however, apply to tenancies within Part II of the 1954 Act: see sections 13(3) and 32(2). Nor does it apply to "a new lease granted to an existing tenant … if the previous lease was not a lease to which s.11 applied": see section 14(1). In the present case the judge had held on a preliminary issue that the exception in Section 14(1) was only available where the previous lease had been a "lease of a dwelling-house" and that, on the assumption that the lease was the relevant previous lease, it had not had that character having regard to the user clause. There was no appeal by the respondent on that issue, and the issues raised by the present appeal do not require us to decide whether he was right or wrong about that.
The effect of these statutory provisions was that if the appellant could show that the dealings between the parties had at some point been such as to cause the property to be or become "let as a separate dwelling" she would have the protection of the Housing Act 1985. If she could also show that such letting was for a period shorter than 7 years, she would also have the protection of Section 11 of the Landlord and Tenant Act 1985. The judge found that she had established the first, but not the second, of these propositions. By this appeal the appellant seeks to establish that the judge was wrong on the second point. In the light of that appeal the respondent cross-appeals the first finding as to the applicability of the 1985 Act.
The judge reached the conclusion he did on the basis of the following findings:
"11 By mid 1986 commercial activity at the property had ceased; that is set out in a file note dated 25 July 1986 (p195) and was confirmed by Miss Tomkins in her evidence. She indicated that Mrs Barker's health problems made it quite impossible for the business to be carried on.
12. There is overwhelming evidence that the landlords knew that commercial activity at the premises had ceased at about that time, and indeed counsel for the local authority accepted that.
13. The file notes of CNT show to my mind that thereafter the landlords not only knew that commercial activity had ceased at the property, but elected to treat the premises as let for residential purposes, and communicated their decision to the tenants. I reach that conclusion for the following reasons:
(A) The file note dated 7 August 1986 (p196) indicates that "a revised non-commercial approach" should be taken to rent reviews, provided that the DSS were prepared to pay housing benefit (which they did, from 5 June 1986).
(B)...
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