Lease — Variation — Statutory powers — Tenancy agreement providing for different method of variation — Defendant council proposing to delete offending term Claimant tenant applying for judicial review — Whether variation in tenancy conflicting with statutory provisions — Whether variation ultra vires to defendants’ contracting powers — Application dismissed
The claimant was a secure tenant of the defendant council, which were a local housing authority for purposes of the Housing Act 1985 and the claimant’s landlords.
Section 102 of the Act provided that a secure tenancy might be varied in one of three ways but “not otherwise”: (i) by agreement between the landlord and the tenant; (ii) to the extent that the variation related to rent or payments in respect of rates, council tax or services by the landlord or the tenant in accordance with a provision in the lease or the agreement creating the tenancy, or in an agreement varying it; and (iii) in accordance with section 103 of the Act (that is, by notice of variation of a periodic tenancy served on the tenant by the landlord).
Clause 11 of the claimant’s tenancy agreement provided, inter alia, that the terms of the agreement could be changed only if a majority of the tenants’ representatives on the management board, which had been set up to serve local council-housing areas, agreed to it at a special meeting at which at least 25% of the representatives were present.
The claimant applied for judicial review of the defendants’ decision to implement a new secure tenancy agreement that included the removal of clause 11 on the basis that, in so far as the clause conflicted with sections 102 and 103 of the Act, it was ultra vires to the defendants’ contracting powers as a public authority and therefore void.
The claimant contended that sections 102 and 103 were merely enabling provisions giving to landlords powers of variation of secure tenancies that would not have been available under common law. It did not follow that parliament had intended that that mechanism was to be exclusive of what the landlord and tenant might agree about variation procedures.
Held: The application was dismissed.
Clause 11 sought to impose a different method of variation and thus offended against section 102(1) which provided that a secure tenancy could be varied in three ways “and not otherwise”.
The tenancy agreement set out a new mechanism for the variation of any terms of the tenancy that differed from the mechanisms set out in section 102. On the face of the agreement, it required all variations to go through the clause 11 procedure, including a proposed variation of clause 11 itself. However, that unlawfully fettered the statutory powers of variation in the 1985 Act and was prohibited by section 102. Irrespective of the defendants’ management powers, parliament had directed that the parties were not free to contract in the way envisaged by clause 11, which was accordingly ineffective.
Furthermore, the clause was void as an illegitimate fetter on the defendants’ powers under the Act. The statutory powers and duties conferred upon local housing authorities by the Act envisaged that secure tenancies might be granted by such authorities to alleviate social housing needs. The corollary of that power seemed to be the right of the authority to vary the terms within the powers conferred by sections 102 and 103. Parliament’s intention and purpose would be frustrated if the defendants purported to contract irretrievably out of those powers by agreeing to clause 11.
Nigel Giffin QC and Elizabeth Davies (instructed by Sternberg Reed Taylor & Gill) appeared for the claimant; Andrew Arden QC and Andrew Dymond (instructed by the legal department of Basildon District Council) appeared for the defendants.
Eileen O’Grady, barrister
