Housing Act 1964–Application by property owners to quash control order–House alleged to be occupied by persons not forming a single household–Unlawful subletting–Whether occupiers for the purpose of a control order meant lawful occupiers–Point not decided as applicants should have appealed against control order instead of applying for the prerogative order of certiorari
In these
proceedings Minford Properties Ltd, of Cork Street, London W1, applied for an
order of certiorari to quash a control order made under section 73 of the
Housing Act 1964 by the London Borough of Hammersmith in respect of premises
known as 103 Dawes Road, Hammersmith, London SW6, owned by the applicants.
Raymond Sears
QC and S Kramer (instructed by Davis Hanson) appeared for the applicants; J
Sullivan (instructed by W R Flanagan, Borough Solicitor, Hammersmith)
represented the respondents.
Giving
judgment, LORD WIDGERY CJ said that the applicants were the owners of a
property, 103 Dawes Road, Hammersmith, which consisted of a ground-floor shop
with living accommodation on the first and second floors. The tenant was a Mrs
Watts who, by the terms of her tenancy, was prohibited from subletting. In 1977
the respondents had begun to take an interest in the property and served upon
the applicants directions to reduce the number of persons living in the
property to one family. Following upon that direction, which revealed that a
number of unauthorised people were living in the premises, the applicants
commenced proceedings for possession on the ground that the tenant was in
breach of the prohibition of subletting. An order for possession was obtained
in West London County Court in October 1977 but was suspended for 28 days. On
November 4 1977, before the operation of the possession order, the respondents
served a control order on the applicants under section 73 of the Housing Act
1964 which allowed the respondents to take over the property for up to five
years.
Section 73 of
the Housing Act 1964 empowered a local authority to make a control order in
respect of a property occupied by persons who did not form a single household
and . . . ‘if it appears to the local authority that the living conditions in
the house are such that it is necessary to make the control order in order to
protect the safety, health or welfare of persons living in the house.’
Mr Sears now
submitted on behalf of the applicants that the essence of the power to make a
control order was the occupation of premises by persons who did not form a
single household. But, claimed Mr Sears, ‘occupiers’ meant ‘lawful occupiers’
and in the present case Mrs Watts was the only lawful tenant. Mr Sears had gone
on to argue that the making of the possession order terminated Mrs Watts’
tenancy. Therefore when the control order was served, the premises were not
occupied by any authorised tenant. He (his Lordship) had been troubled with
that aspect of the case and he would have inclined to the view that occupation
referred to all-in occupation. But it was not necessary to decide that point.
The real point was that by section 82 any person having an estate or interest
in the house had a right to appeal to the county court against the control
order.
At such an
appeal to a county court the applicants would be able to argue that the making
of the control order was unnecessary and that the real motive of the
respondents in making the order was to prevent them from having to rehouse the
occupants. There was an unrestricted right to argue the appeal and the court
should fall back on the well-known principle of refusing a prerogative order
where it was shown that there was an alternative remedy. The application should
be dismissed.
CROOM-JOHNSON
and STOCKER JJ agreed.
The motion
was dismissed with costs.
