Housing Act 1985, Schedule 1, para 3(1) — Whether a person occupying a flat under a licence from a housing association pending development was a secure tenant — Para 3(1) provided that a tenancy is not a secure tenancy if the dwelling-house in question is on land which has been acquired for development and the dwelling-house is used by the landlord, pending development of the land, as temporary housing accommodation — Whether, in order to give rise to this disqualification, the land must have been acquired for development by the landlord or could have been acquired by a third party — In the present case the landlord was a housing association but the land had been acquired for development not by the association but by the Department of Transport — The Court of Appeal, reversing the decision of the county court judge, decided that para 3(1) applied and that the respondent did not have a secure tenancy
were that the appellant association had granted to the respondent what was
described as a temporary weekly licence to occupy a flat pending development,
at a weekly occupation charge of £16.30, subject to 28 days’ notice of
termination — After the respondent had fallen into arrears the association gave
notice terminating his occupation — The issue in proceedings for possession was
simply whether the respondent had a secure tenancy — This was purely a question
of construction of para 3(1) of the schedule to the 1985 Act — The county court
judge decided that the respondent did have a secure tenancy and dismissed the
association’s action for possession — He took the view that, as a matter of
construction, the provision contemplated that the person who was landlord would
be the same person as had acquired the land for development
Appeal took the opposite view — They held that the ordinary meaning of para
3(1) in the English language did not require the landlord to be the person who
had acquired the land for development — The paragraph imposed two quite
distinct requirements — The first was that the dwelling-house must be on land
which had been acquired for development — The second was that the
dwelling-house was used by the landlord, pending development of the land, as
temporary housing accommodation — These two requirements were satisfied here —
Hence the tenancy was not a secure tenancy and the landlord was entitled to
possession — In the view of the Court of Appeal the construction for which the
respondent contended involved writing into para 3(1) words which were not in
the statute, namely the words ‘by the landlord’ after ‘acquired for
development’
rejected a number of other arguments on construction put forward on behalf of
the respondent — On the question of policy they saw no reason why the
construction for which the appellants contended should not have been in
accordance with Parliament’s intention — It was undesirable that land should be
sterilised and removed from the housing stock pending development — The case of
Attley v Cherwell District Council, which had been cited, was distinguished
— Appeal allowed
The following
case is referred to in this report.
Attley v Cherwell District Council (1989) 21 HLR 613
This was an
appeal by Hyde Housing Association Ltd from a decision of Judge James, at
Woolwich County Court, whereby he dismissed the association’s action for
possession of a flat at Wickham Lane, London SE2, occupied by the defendant
(the present respondent), Mr Danny Harrison.
Nicholas
Vineall (instructed by Evans Butler Wade) appeared on behalf of the appellants;
Bryan McGuire (instructed by Powell & Co) represented the respondent.
Giving
judgment, FOX LJ said: This is an appeal by the Hyde Housing Association Ltd
(‘Hyde’) from a decision of His Honour Judge James in the Woolwich County
Court, dismissing Hyde’s action for possession of premises consisting of a flat
at Wickham Lane, London SE2.
Hyde is a
charitable housing association registered under the Industrial and Provident
Societies Act 1965 and the Housing Act 1976.
Hyde holds the
premises under an agreement from the Department of Transport to use the
premises for temporary housing for those in need. That agreement was made in
October 1984. Previously, in April 1984, the Department of Transport had
acquired the premises as part of the land required for a road development scheme.
In November
1984 Hyde granted to the defendant, Mr Harrison, what was described as a
temporary weekly licence to occupy the premises pending development, in
consideration of the payment by the defendant of an occupation charge of £16.30
per week. The licence contained provisions that the defendant would pay the
charge promptly and would vacate the premises on 28 days’ notice by Hyde to
vacate. The defendant became in arrears with his payments. At the hearing it
was agreed that he owed some £803 to Hyde. Notice was given by Hyde determining
the licence or other right to occupy. The judge recorded that there was no
dispute about that. The issue is whether the defendant had a secure tenancy.
That depends upon the provisions of para 3 of Schedule 1 to the Housing Act
1985.
Para 3 is in
the following terms:
(1) A tenancy is not a secure tenancy if the
dwelling-house is on land which has been acquired for development and the
dwelling-house is used by the landlord, pending development of the land, as
temporary housing accommodation.
(2) In this paragraph ‘development’ has the
meaning given by section 22 of the Town and Country Planning Act 1971 (general
definition of development for the purpose of that Act).
It is common
ground that the premises were ‘acquired for development’ by the Department of
Transport within the meaning of para 3. It is also common ground that the
premises have been used by Hyde at all material times for temporary housing.
The issue is whether, upon the proper construction of para 3, the land must
have
present case) or whether the acquisition may be by a third party (the
Department of Transport in this case).
The judge held
that ‘an ordinary reading of para 3 would normally result in the reader
assuming that the person who was the landlord would be the same person as had
acquired the land for development’. Accordingly, the judge held that there was
a secure tenancy and dismissed the action.
In my opinion,
para 3(1) of Schedule 1, read according to its ordinary meaning in the English
language, does not require that the landlord be the person who has acquired the
land for development. The paragraph, it seems to me, imposes two distinct
requirements. The first is that the dwelling-house must be on land which has
been acquired for development. The second is that the dwelling-house is used by
the landlord, pending development of the land, as temporary housing
accommodation. If these two requirements are satisfied, the tenancy is not a
secure tenancy.
There is, in
my view, no requirement, express or implied, that the acquisition should have
been by the landlord. The statutory language is simply ‘if the dwelling-house
is on land which has been acquired for development’. There is nothing in that
language which requires that the developer should be the landlord. It is only
in relation to the second requirement that the landlord is introduced at all.
The
construction which I have adopted seems to me to be the ordinary meaning of the
language used and does not involve extending or rewriting it in any way.
The
construction contended for by the respondent, on the other hand, involves, in
effect, the rewriting of para 3(1) to read:
A tenancy is
not a secure tenancy if the dwelling-house is on land which has been acquired
for development by the landlord and the dwelling-house is used by the
landlord, pending development of the land, as temporary housing accommodation.
As to the
language of the paragraph, the respondent advances the following contentions:
(1) The ‘landlord’ is the only person expressly
referred to in the paragraph. That is true, but it is not a compelling reason
for saying that what I have referred to as the first requirement should be given
a meaning which its language does not bear. The fact is that the draftsman did
not introduce a reference to the landlord into the first requirement.
(2) There is no comma after the words ‘acquired
for development’. I do not think that there needs to be a comma to justify the
interpretation which I have adopted.
(3) The draftsman was merely avoiding the
inelegance of using the words ‘the landlord’ twice over. No doubt the draftsman
might try to avoid inelegancies, but not in such a way as to distort or obscure
the meaning.
(4) The draftsman could have put the matter
beyond doubt, if he really intended that the paragraph should have the meaning
contended for by Hyde by, for example, setting out the paragraph in a different
form:
A tenancy is
not secure if —
(a) the dwelling-house is on land which has been
acquired for development, and
(b) the dwelling-house is used by the landlord
pending development of the land, as temporary housing accommodation.
It seems to me
that the paragraph, as enacted, provides exactly the same result as that
wording, and I do not see why the draftsman should not have supposed so.
(5) The words falling between ‘acquired for
development’ and ‘used by the landlord’ namely ‘and the dwelling-house is’ are
to make it clear that it is the dwelling-house and not the land which must be
used pending development for temporary housing accommodation. There is no
grammatical reason, it is said, to separate the terms ‘acquired for
development’ and ‘used’ or to treat them as referring to different persons. The
reason, it seems to me, is because ‘used’ is followed by the words ‘the
landlord’, and there are no words specifically identifying the acquirer for
development. The language, so far from identifying the landlord as the
necessary acquirer, leaves the identity of the acquirer entirely at large.
It is said
that the purpose of the Act and of the schedule is to regulate agreement
between landlord and tenant. Accordingly, so it is said, the strong assumption
is that unless otherwise stated the parties being referred to were landlord and
tenant. I do not feel able to accept that. Let it be assumed that the purpose
is to regulate relations between landlord and tenant. The question in the
present case is the identification of the circumstances in which they are to be
regulated. It is not unreasonable that the relationship between the landlord
and the tenant should be regulated, in a particular way as to security of
tenure, if the land has been acquired for development whether by the landlord
or by a third party, and the tenant’s occupancy was on a temporary basis
pending development.
As to the
context in which para 3 appears, it is no doubt true that there may be
overlapping between the provisions of para 3 and para 6. But the two
paragraphs, though they both are specifying circumstances in which a tenancy is
excluded from the category of secure tenancies, impose quite different
requirements for the exclusion. Further, para 6 is dealing with what may be
called ‘three-party’ situations, ie a superior lessor, a landlord and a tenant
— the first letting to the second, and the second to the third. Para 3,
however, extends also, in my view, to ‘two-party’ situations, ie where the
acquirer grants the tenancy direct to the occupier of the house. On the respondent’s
construction, para 3 is always limited to the two-party situation.
It is
contended that, if Hyde’s construction of para 3 is correct (ie that the
acquirer need not be the landlord), the tenant will never be sure of his
position, since para 3 contains no provision for the insertion in the lease of
any express terms in the tenancy agreement or in the agreement between the
acquirer and the landlord as to intention to develop. But para 6 equally
contains no provision as to the contents of the tenancy of the house to the
occupying tenant (as opposed to the landlord). But in any event, it would
normally be in the landlord’s interest that the tenancy to the occupying tenant
should contain provisions enabling the landlord to obtain possession when the
developer requires it, since the inclusion of such provisions will reduce the
risk of disputes and difficulties between the landlord and the tenant when
possession is required for development.
In general I
see no reason why, as a matter of policy, Parliament should not have intended
para 3 to have the meaning contended for by Hyde. It is undesirable that land
should be sterilised and removed from the housing work pending development. It
is desirable to encourage its use for housing, provided that that does not impede
the development. But there may well be cases where the developers do not wish
to assume the burdens of dealing with residential tenants and the day-to-day
problems regarding houses but would be quite content to allow temporary use
under a tenancy agreement to a third party who would assume these burdens and
provided that the tenancy ensured the availability of the land when required
for the development.
We were
referred to the decision of the Court of Appeal in Attley v Cherwell
District Council (1989) 21 HLR 613. I do not, however, think that the
present point really arose in that case. Cherwell District Council were seeking
to obtain possession of a dwelling-house and relied on para 3. The land was
originally acquired by Banbury Borough Council but vested in the Cherwell
District Council in the local government reorganisation of the early 1970s. The
court held that the effect of the Local Government Act 1972 was that Cherwell
District Council themselves were to be treated as having acquired the land for
development. It was therefore a case where the plaintiff landlord had acquired
the relevant land for development.
In the
circumstances I would allow the appeal.
STOCKER LJ agreed and did not add anything.
The appeal
was allowed: possession to be given forthwith. No order was made as to costs.
Leave to appeal to the House of Lords was refused.
