Whether flat occupied as “only or principal home” — Action for possession — Consent order made granting possession to local authority — Whether court had jurisdiction to make possession order by consent — High Court upholding order — Court of Appeal dismissing appeal — Judgment for local authority
The applicant was disabled, but owned his own specially-adapted house. In March 1983 he obtained from the local authority the tenancy of a flat at 105 Canterbury Road, Worthing, to enable him to take up work in the area. The tenancy was for an initial period of 11 months, which was extended at the expiration of the term. The appellant also owned a bungalow in Kent, which was adapted to accommodate his disability. The appellant claimed to be a secure tenant of the flat so that he was entitled to buy the freehold under the Housing Act 1985 on the basis that it was his only or principal home.
A hearing was commenced in the county court, but the action was compromised whereby among other things the appellant agreed not to pursue his claim for the right to buy and to give up possession to the council. The county court made a consent order to that effect. The appellant subsequently had further thoughts and applied for judicial review to have the order set aside claiming that his agreement had been obtained by undue pressure. The High Court concluded that there had been sufficient investigation into the matter to entitle the county court judge to conclude that he had jurisdiction to make the order on the basis that the applicant was not a secure tenant. The agreement had been at arm’s length after full consultation and advice: (1992) 24 HLR 261. The applicant appealed.
Held The appeal was dismissed.
1. For a tenant to be secure within Part IV of the Housing Act 1985 he had to occupy a dwelling-house as “his only or principal home”: section 81.
2. In this case the consent order was in unequivocal terms. The agreed order thus contained an implied admission that the applicant had no protection and there was no need for any further inquiry from the judge before making the order sought.
3. In R v Bloomsbury and Marylebone County Court, ex parte Blackburne [1985] 2 EGLR 157 (CA) the court had held that in the light of the Rent Act, in the case of a regulated tenancy, the court could not make an order for possession by consent. However, in that case there had been no admission of lack of protection and that case did not assist the present applicant.
4. In Morris v Barnet London Borough Council unreported May 26 1989 (CA) an order for possession made by consent after some of the evidence in the case had been heard was upheld. Each case would depend on the terms of the order in the light of surrounding circumstances.
5. In the present case the judge had made the order sought after hearing part of the evidence and considering all the circumstances including the terms of the order. The judge was entitled to find that the agreement was made at arm’s length after full consultation and advice and to make the order sought.
Robin Allen (instructed by Tarleton Davies, of Ashford, Kent) appeared for the applicant; Malcolm Gibney (instructed by Thomas Eggar Verrall Bowles, of Worthing) appeared for the local authority.
