Right to buy – Valuation – Subsequent dispute over extent of property subject to appellant’s tenancy – Whether valuation on basis that disputed strip included in tenancy ousting court’s jurisdiction to decide that matter – Sections 128 and 181 of Housing Act 1985 – Appeal allowed
The appellant was a secure tenant of the respondent council, occupying a first-floor maisonette with a garden area. In 2000, the appellant sought to exercise her right to buy under section 118 of the Housing Act 1985. In valuing the property under section 128 of the Act, the district valuer proceeded on the basis that the tenancy included a 2ft-wide “privacy strip” running along the rear of the property. A dispute subsequently arose between the parties as to whether the strip fell within the appellant’s tenancy or that of the ground-floor maisonette. The respondents contended that the strip was intended to ensure privacy for the occupier of the lower maisonette (S) and was included in that tenancy, even though the tenant was unable to access the strip except by crossing the appellant’s land. The judge found that the wording of the tenancy was not sufficient to resolve the question and no plans existed that could assist in doing so. He determined a factual dispute as to whether the privacy strip had been fenced at the beginning of the appellant’s tenancy. He concluded it had been and held that the privacy strip was not therefore included in the appellant’s tenancy.
On appeal, the appellant contended that: (i) once the district valuer had included the privacy strip in his valuation, in accordance with the statutory scheme of the 1985 Act, the judge had had no jurisdiction to determine the extent of the tenancy; and (ii) the judge had misdirected himself in applying the law to the facts he found.
Held: The appeal was allowed.
(1) There was nothing in the 1985 Act to make a determination by the district valuer binding and conclusive with regard to the extent of the property subject to the right to buy. Under section 128, the district valuer’s function was to determine the value, not the extent of the property. To hold otherwise would remove any possibility of court review should the valuer erroneously include land that was owned by the landlord but that did not come within the tenant’s tenancy. The landlord would then be bound to grant a lease in respect of property to which the right to buy did not apply. The 1985 Act had to be construed so as to give effect to the right, to access the courts for the determination of civil rights as provided for by Article 6 of the European Convention on Human Rights. The extent of the appellant’s tenancy was a “question arising under this Part” within the meaning of section 181, such that the courts had jurisdiction to determine it.
(2) The judge had erred in treating the existence of the fence as conclusive; he had fallen into the trap of regarding resolution of the major factual dispute as also resolving the legal issue. He had consequently failed to construe the meaning of the tenancy agreement in the light of all the relevant extrinsic evidence. It was inherently unlikely that the respondents would have included the strip within S’s tenancy without giving her access to it or providing for how she should use the land. The aim of privacy could be achieved by restricting the right of the appellant to go onto the strip save when necessary to maintain it. Examining all the evidence, it was more likely that the strip came within the tenancy of the appellant, and that the line of the fencing simply delineated an area onto which the appellant would not normally go so as to respect the privacy of the occupants of the lower maisonette.
Philip Rainey (instructed by Wiseman Lee) appeared for the appellant; Jonathon Rushton (instructed by the legal department of Newham London Borough Council) appeared for the respondents.
Sally Dobson, barrister
