Unfit Hartlepool house–Facts similar to those in six cases decided by Tribunal in Reeve v Hartlepool BC, but different argument by claimant–Reliance on existence of sufficient measure of control for occupation–Claim under para 1 (1) of 5th Schedule rejected
Mr B H Cato
(instructed by Smith & Graham, of Hartlepool) appeared for the claimants,
and Mr P Tarbuck, assistant solicitor, Hartlepool Borough Council, for the
acquiring authority.
This is a
reference to determine the amount of compensation to which the claimants are
entitled in respect of their house at 38 Talbot Street, Hartlepool, which has
been compulsorily purchased by the acquiring authority under Part III of the
Housing Act 1957. The claimants, in addition to claiming compensation by
reference to the site value of the house, claim an owner-occupier’s supplement
under the provisions of section 68 of the Housing Act 1969 and the Fifth
Schedule thereto.
In my decision
in Reeve and Others v Hartlepool Borough Council [see p 576 of
this issue] I observed that there were seven cases referred to the Lands
Tribunal and that the seventh case, having been heard separately, would be
decided separately. This is that seventh case. The dispute in it is similar to
that in the others: and the claimants contend that ‘throughout the qualifying
period the house was wholly or partly occupied as a private dwelling’
notwithstanding that there was a period of delay after the claimants’ vendor
quitted the house before the claimants took up residence in it. For the
relevant provisions of the Fifth Schedule and a consideration of the law
relating to this matter see my decision in the other cases.
I heard
evidence from both claimants, from their vendor and from the solicitor who
acted for the claimants in the
find the following facts:
(1) The relevant date was April 5 1973 and the
qualifying period was from April 6 1971 to April 5 1973.
(2) On December 19 1972 the claimants’ vendor,
having resided in the house since before the beginning of the qualifying
period, ceased to reside in it and moved home to another property which he had
bought. He removed to the new property all the furniture which he required for
use there and left behind at 38 Talbot Street ‘a few bits and pieces’ for which
he no longer had any use. These included some curtains, a fitted carpet, a gas
fire, a table fitted to a wall, a stool, a gas cooker, some linoleum, some
fitted cupboards, some knives and forks, a stair carpet, a sideboard, a chest
of drawers and a bicycle. The vendor hoped that the purchaser would take these
items over. On February 26 1973 the claimants, having informally agreed with
the vendor a price of £350 for the house and its contents, with his permission,
began to live in it, having entered a few days earlier in order to clean and
decorate it and prepare it for residence. Completion of the transaction took
place on April 2 1973, contracts having been exchanged at some date between
March 19 1973 and April 2 1973. In the period between December 19 1972 and
February 26 1973 the vendor visited the house and turned the lights on at night
in order to convey the impression that the house was still occupied so as to
reduce the risk of damage by vandals and entry by squatters. He took this action
nightly at first, but subsequently took it three or four nights a week. His
purpose was not to preserve the house as a home for himself but to protect its
saleable value.
(3) A ‘void period’ was allowed by the rating
authority in respect of the house from December 19 1972 until February 28 1973.
No rates were paid in respect of that period.
Mr B H Cato of
counsel, on behalf of the claimants, and Mr P Tarbuck, on behalf of the
acquiring authority, were in agreement, in argument, that the question whether
the provisions of subparagraph (1) of paragraph 1 of the Fifth Schedule to the
Housing Act 1969 were fulfilled was one of fact and degree for me to decide. Mr
Cato said that he had been informed of the nature and contents of the argument
of Mr Kelly in the other cases and of the authorities upon which he had relied.
He found no assistance in those authorities. It was not his submission that I
was obliged or ought to look at the White Paper and circular referred to by Mr
Kelly. Mr Cato, however, referred me to the following decisions: Newcastle
City Council v Royal Newcastle Hospital [1959] 1 All ER 734; Lee-Verhulst
(Investments) Ltd v Harwood Trust [1972] 3 All ER 619; H & N
Emanuel Ltd v Greater London Council [1971] 2 All ER 835. In the
first of these three cases Lord Denning, in an obiter dictum, said:
‘the hospital
was undoubtedly in legal possession of the 291 acres; for the simple reason
that, where no one else is in possession, possession follows title. But legal
possession is not the same as occupation. Occupation is a matter of fact and
only exists when there is sufficient measure of control to prevent strangers
from interfering. There must be something actually done on the land, not
necessarily on the whole but on part in respect of the whole. No one would
describe a bombed site or an empty unlocked house as ‘occupied’ by anyone; but
everyone would say that a farmer ‘occupies’ the whole of his farm even though
he does not set foot on the woodlands within it from one year’s end to
another.’
Fatal Break in
Occupation
Upon my
findings of fact there was a break in residential occupation of approximately
two months during the qualifying period. That break is fatal, in my judgment,
to the claim by the claimants in so far as it is based on subparagraph (1) of
paragraph 1 of the Fifth Schedule. No claim by them under subparagraph (2) of
that paragraph was made before me and it is plain that at no time has their
case been put under that subparagraph to the acquiring authority and that it
has been given no opportunity to state whether it is satisfied as to the
matters in respect of which that subparagraph speaks.
In the result
the claimants are entitled to site value compensation only. The relevant
valuations were agreed, the site value being agreed at £30. That is the amount
of compensation to which they are entitled. I award that sum to them together
with their surveyors’ fees (if any) under Scale 5 (a) of the Scales of the
Royal Institution of Chartered Surveyors and all proper legal costs incurred by
the claimants prior to the date of the reference herein. The claimants will pay
£10 towards the costs of the acquiring authority. I order legal aid taxation of
the costs of the claimants under Schedule 2 to the Legal Aid Act 1974.
