HMOs and Council Tax

Published
by
David Smith
on 30/07/2010
in Assured Shorthold tenancy, FLW case note, Housing law - All and Regulation and planning
. 1 Comment

Goremsandu, R (on the application of) v London Borough of Harrow [2010] EWHC 1873 (Admin)

As many of you will know the definition of an HMO for the purposes of Council Tax is totally different from that used in the Housing Act 2004 (and in relation to planning uses classes). It is, however, an important definition because where a property is an HMO the Council Tax (Liability for Owners) Regulations 1992 require that the owner is the person who has the primary liability to pay the Council Tax, even if they then pass on that charge to the tenants.

In this case G owned a property with a conservatory which she had let to four tenants from October 1999. Crucially the tenants were on a single tenancy agreement and were jointly and severally liable for breaches. After a series of renewals the tenancies came to an end in December 2007 with the tenants finally vacated in February 2008 after holding over as periodic tenants for a short time. The property had been let furnished but the tenants did not wish to use the furniture and had, by agreement with G, placed it into the conservatory. This basically rendered the conservatory unusable. Towards the end of the occupation G built a new two-room extension to the property which joined it by way of the conservatory. This was completed shortly before the tenants moved out and G had apparently moved into the extension about 2 weeks before vacant possession was given up by the tenants. It seems that the tenants had not paid the entirety of their Council tax and London Borough of Harrow (LBH) then sought to recover the outstanding sums along with bailiff’s fees from G, a figure in excess of £11,000. She took the matter to the London (North West) Valuation Tribunal who gave a decision dated 23 June 2009. This decision was then appealed to the High Court.

The case for LBH and the decision if the Tribunal turned on their interpretation of regulation 2 Council Tax (Liability for Owners) Regulations 1992. This states:

The following are the classes of chargeable dwellings prescribed for the purposes of section 8(1) of the of section 8(1) of the [LGFA]-
Houses in multiple occupation, etc
Class C a dwelling which
(a) was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or
(b) is inhabited by a person who, or by two or more persons each of whom either-
(1) is a tenant of, or has a licence to occupy, part only of the dwelling; or
(2) has a licence to occupy, but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of the dwelling as a whole.

The Tribunal found as facts that each tenant was liable to pay their rent separately to G and also that she had restricted access to the conservatory. They did so primarily on the basis of evidence submitted by the tenant’s through LBH. They discounted the tenancy agreements which were expressed to be in the name’s of all the tenants. The Tribunal also found that G had restricted access to the conservatory. Based on these findings the Tribunal found that the property was an HMO for the purposes of Council tax and the money was payable.

The High Court criticised the basis on which the Tribunal had approached this matter. The starting point for their investigation should have been the tenancy agreements the parties had entered into. The statements by the tenants referring to paying their ‘shares’ of the tenancy simply expressed the fact that the rent for the property was shared among them. It did not undermine the agreement itself and the right of the landlord to hold them jointly and severally liable for the rent. It also did not mean that the tenants did not enjoy full access to the property.

With regard to the conservatory the evidence showed that the tenants retained a right of access to it and that it was filled with the landlord’s furniture because of their choice, albeit with the landlord’s consent.

By failing to give effect to the tenancy agreements the tribunal had applied the law incorrectly. They had also applied the test in the regulations incorrectly. The Tribunal had taken the view that individual rent charges equated to an HMO whereas the test in the regulations was whether “the rent charges gave rise to a licence whereby they only occupied part only of the dwelling or whether they were paid in respect of part only of the dwelling.” On the facts the individual rent charges, in so far as they existed, were paid to allow access to the whole of the dwelling and so the decision by the Tribunal was incorrect.

Appeal allowed.

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Suspended possession orders and insolvency: request for info

Published
by
NL
on 30/07/2010
in Housing law - All, Possession, Tolerated trespasser, assured-tenancy and secure-tenancy
. 0 Comments

We’ve been told that on 29 July 2010, the tenant appellant in Godfrey v A2 Dominion North Ltd was granted permission to appeal. Quite what permission has been given is less clear – our source says Court of Appeal, but the case was elsewhere listed as being before a High Court judge. Can anyone clear this up?

[Edit: confirmed by Hardwicke Chambers as being Court of Appeal, permission by Rimer LJ]

What is at issue is whether a suspended possession order should be made when the rent arrears have been included in a debt relief order pursuant to the Insolvency Act.

The tenant apparently argued that “a ‘remedy in regard of debt’ in the terms of the Insolvency Act cannot include a suspended possession order as the purpose of an SPO is to enable payment of the arrears”. Further the existence of a debt relief order must be relevant to the question of whether it is reasonable to make a possession order in the first place. These were not arguments raised in Harlow v Hall, which should be distinguished on its own facts as:

  • it is based on the concept of the tolerated trespasser which is no longer applicable
  • the comments on a possession order post-bankruptcy were obiter
  • Harlow v Hall pre-dated the rent arrears pre-action protocol

Obviously we like to know more about this case – transcript anyone?

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No comment required

Published
by
NL
on 29/07/2010
in Various (non-housing)
. 2 Comments

the legal aid massacre - thanks to John Bolch
With thanks to John Bolch at Family Lore.

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Residing legally …

Published
by
Dave
on 29/07/2010
in FLW case note, Homeless and Housing law - All
. 2 Comments

An interesting argument emerged before the Court of Appeal in Lekpo-Bozua v Hackney LBC (SoS for Communities and Local Government joined as interested party) [2010] EWCA Civ 909.  The issue arose around the difference between, on the one hand,  an entitlement to the main housing duty under section 193, Housing Act 1996, to successful homelessness applicants, and, on the other hand, the duty owed in “a restricted case” under section 193(7AA).  The restricted case material was inserted into the 1996 Act (finally) by section 314, Housing and Regeneration Act 2008, in order to deal with the declaration of incompatibility found in R(Morris) v Westminster CC [2006] 1 WLR 505 on the previous provision (disregard of applicant’s ineligible child for Part VII).  A restricted person is someone who is ineligible, or subject to immigration control, and either doesn’t have leave to enter or remain in the UK or whose leave is without recourse to public funds.  Where a household includes such a person they are subject to the restricted duty in section 193(7AA)-(7AD).  In summary, the duty ceases if the household is made an offer of a private sector tenancy (an AST will do) and the authority is encouraged to bring their duty to an end in this way (see s 193(7AD)).

Ms Lepko-Bozua was seeking to avoid the application of section 193(7AA).  She is British but her niece, who has the lovely name Océane (with an acute accent on the first e),  has lived with her (and her ex) in the UK for about nine years.  Ms Lepko-Bozua became homeless as a result of DV from her ex.  Hackney found that Océane was a restricted person because she was not a qualified person under regulations 4 and 6, Immigration (European Economic Area) Regulations 2006.  They also found that she had not “resided legally for a continuous period of five years” in the UK (see Article 16, Directive 2004/38/EC).  On the s 204 appeal, it was found that she was not a qualified person (even though she was in education, she did not have comprehensive insurance cover in the UK and couldn’t give the sufficient resources assurance – see reg 4(1)).

The argument for her was that she had, in fact, “resided legally” in the UK for five years in accordance with Art 16.  The legality derived from the fact that she had not been removed from the UK by the SoS.  Now, this is an argument that I have also been looking at, quite separately, and found quite attractive (despite a nagging doubt).  Consider Recital 17 to the Directive, which requires “compliance with the conditions laid down in this Directive” for the right to permanent residence (conditions such as not being an unreasonable burden on the social assistance system of the host state).  The Court of Appeal dismissed the argument for Ms Lepko-Bozua pretty much out of hand:

Asked by the Court for the legal principle on which his submission rested, Mr De Mello struggled to answer.  He was not promoting a kind of prescription, but was promoting a variety of waiver.  He pointed to Recital 21 of the Directive which provides for host Member States to decide whether to grant social assistance before a person has acquired a right of permanent residence.  He struggled to rationalise the selection of a period of 5 years for the operation of his variety of waiver, when Océane does not come within Article 16 of the Directive which is the origin of a period of 5 years.  It might just as well on his argument be 2 years or 20.  He did not begin to establish a basis in EC law for the variety of waiver for which he contended. ([17])

Residing “legally” means as per Recital 17 in compliance with the Directive’s conditions.  Océane “remained [in the UK] upon tolerance subject to immigration control with no right to remain” ([18]).  The Court cites McCarthy v SoS for Home Department and Abdirahman v SoS for Work and Pensions in support, and explained (politely) a comment made by Kay LJ in Kaczmarek v SoS for Work and Pensions (at [23]) as well as R(Badar) v Ealing LBC (irrelevant as right of residence was not contested).

Interesting argument, but unsuccessful – s 193(7AA) applied.

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Social Welfare Law contracts – update

Published
by
NL
on 28/07/2010
in Various (non-housing)
. 0 Comments

The LAG news blog is reporting that while Family contracts resulted in ‘carnage’ with an estimated 1300 out of 2400 firms being awarded contracts – about 54%, in Social Welfare Law the LSC is saying that it believes ‘around 70%’ of existing providers will be awarded contracts, but they are still doing ‘due diligence’ in 5 areas.

So if 46% failure is ‘carnage’, what is 30%? Two thirds of a carnage? Perhaps carnage lite? A triple decimation?

Certainly the 70% figure is not standard across the country. For example, my understanding is that there are only three SWL providers in Birmingham who were offered contracts (taking consortia as one, which may be unfair, depending how the LSC is doing its percentages). I can now publicly confirm that Community Law Partnership in Birmingham are one of the high profile and high quality private firms not to get a contract offer. CLP are asking for letters of support as they will be appealing. See Chris Johnson’s comment on our earlier post.

And then there are those who bid for a Housing/Family combination. How do we even begin to assess that? Would it be a ‘Family’ style failure rate of 46%, or would it only be the ‘better’ firms that did such a combo? No way to tell.

There is a kerfuffle in the Family sector over firms bidding for contracts without having the necessary staff in place, with other firms crying foul. If the same thing has happened in Housing, the jobs ads over the next few weeks should be interesting – staff to be in place before the October start date, of course.

Meanwhile, the Law Society continues to downplay the chances of a bringing a challenge to the contract process, with an email yesterday stating:

The Law Society is urgently seeking legal advice on the social welfare and family law tender results. However, even if there is a viable challenge, it is unlikely to provide a rapid solution to the problem firms are facing, which is why the media and Parliamentary lobbying effort is so important. The initial advice on the other civil contract tenders and results indicates that, based on available information, there is no obvious ground on which a challenge with merit could be made at this stage.

Despite how damaging the outcome has been, it is difficult to pinpoint within the mental health and immigration tenders any breach of procurement law or any decision the Legal Services Commission (LSC) has made that would be so irrational as to meet the judicial review threshold. However, the extent of the reduction in the number of suppliers in family and social welfare, which contrasts vividly with the LSC’s stated intention that the supplier base would not be significantly reduced, and risks creating major gaps in the supplier base, may give rise to additional arguments that could be mounted. We are actively keeping the situation under review.

It is however vital that each individual firm appeals any unsuccessful tender outcome, whatever the reason, within the prescribed timescales.

We appreciate many of our members have made successful bids but for the reasons outlined above with the consequent effect on clients, we have written to the legal aid minister Jonathan Djanogly requesting an urgent review of the tender results and their effect on legal aid provision.

We would urge practitioners who have been unsuccessful to raise the issue with their local MPs and media. You can help our lobbying by highlighting the issue to your MP and urging them to contact the legal aid minister.

Draft letters to MPs and Media are on the Law Society’s site.

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Succeeding to a joint tenancy

Published
by
NL
on 27/07/2010
in FLW case note, Housing law - All, Succession and secure-tenancy
. 2 Comments

Solihull Metropolitan Borough Council v Hickin [2010] EWCA Civ 868

Where there are two joint tenants of a secure tenancy, of whom one has left and no longer occupies the property, and the remaining tenant in occupation dies, can that tenant’s adult child succeed to the tenancy? Or does the tenancy become vested solely in the remaining, absent, tenant by way of survivorship in the form of a bare contractual tenancy?

In this Court of Appeal case, an ingenious argument was raised to suggest that the child could succeed, because the provisions of the Housing Act 1985 overrode the common law rule of survivorship. Ingenious, but unsuccessful.

Ms Hickin was the daughter of Mr & Mrs Hickin. Mr & Mrs H became joint secure tenants of a Solihull Council property in 1980. Mr H moved out in about 2001 when the marriage failed. MS H remained living in the property with Mrs H. Mrs H died in August 2007. Solihull served notice to quit and then brought possession proceedings (although it should be noted they did offer alternative accommodation).

At first instance, the Council were given a possession order. On appeal, the Circuit Judge accepted Ms H’s arguments and held that she was the secure tenant. Solihull appealed to the Court of Appeal.

Solihull’s argument was simple. Survivorship applied. Mr H was the sole tenant, although not a secure tenant as he did not fulfill the residence requirement. Accordingly his tenancy was terminable by notice. There was no basis for Ms H to succeed.

Ms H argued that s.89 Housing Act 1985 meant that a succession was possible. S.89 states:

(1)This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
(2)Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—
(a)the tenant’s spouse or civil partner is to be preferred to another member of the tenant’s family;
(b)of two or more other members of the tenant’s family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.

Ms H argued that s.89(1) was engaged, as Mrs H was a secure periodic tenant who died. S.89(2) was engaged as Ms H was a person qualified to succeed the tenant, indeed the only one as she was living with Mrs H at the date of her death. Accordingly, the tenancy vested in Ms H under s.89(2) ‘by virtue of this section’. As the tenancy vested in Ms H under statute, Mr H was deprived of the benefit of a sole tenancy by operation of common law.

The Master of the Rolls in the sole judgment found that although this was a superficially attractive argument based on those two terms of s.89 alone, and would produce an attractive result in view of Ms H’s situation, one had to consider the broader statutory context of Housing Act 1985. One also had to consider whether the construction argued by Ms H resulted in a sensible outcome broadly considered.

In that latter connection, it seems to me that, while the interpretation put forward by Mr Nicol [for Ms H] produces a perfectly satisfactory result on the facts of the present case, it could produce a quite extraordinary result in other circumstances. Consider a case where two women, each of whom has a child, are granted a joint tenancy of a property in which both of them live together with their respective children. On the death of one of the women, Mr Nicol’s argument, as he accepts, would result in the tenancy vesting in her child, and the surviving secure tenant being divested of her interest under the tenancy, and without any right to stay in her home, in which, until the death of her co-tenant, she was a secure tenant. This seems to me to be a rather absurd, or at least capricious, result, amounting almost to a sort of reverse tontine, which is most unlikely to have been intended by the legislature. [para 12]

On the context of s.89, the doctrine of survivorship was consistent with the way Part IV of the Housing Act 1985 worked, as described by Lord Hoffman in Birmingham City Council v Walker [2007] UKHL 22. At para 5, discussing the Housing Act 1980 provisions consolidated into the 1985 Act, Lord Hoffman said:

The method adopted by the 1980 Act to deal with transmissions is different. It reflects the fact that a secure tenancy is different in nature from a statutory tenancy. Whereas the statutory tenancy is unassignable, not an estate in land but a mere “personal right of occupation” (see Lord Greene MR in Carter v SU Carburetter Co [1942] 2 KB 288, 291), a secure tenancy is an orthodox estate in land which, subject to specific restrictions in the 1980 Act, can be assigned, held in joint names, pass by survivorship and be disposed of by will on death. Thus, while a statutory tenancy can pass from one person to another only in very limited circumstances (such as the statutory transmission on death or by a court order on divorce) a secure tenancy can in principle pass in any way permissible at common law.

In the 1985 Act, s.87 is the governing provision. S.87 refers to a person being qualified to ‘succeed the tenant under a secure tenancy’ and ‘at the time of the tenant’s death’. The statute envisages a person who is the tenant. At the time of Mrs H’s death, only one of the people who comprised ‘the tenant’ had died.

Further, s.88(1) Housing Act 1985 specifically contemplates a joint tenancy becoming vested in one of two joint tenants, presumably by survivorship. This is in distinction to the position in Lloyd v Sadler [1978] 774 on the Rent Act 1968, which had no such express consideration, but even in that case, the argument that succession could overrule survivorship failed.

While the result may seem unfair on Ms H, had Mr H remained in occupation and thereby become sole secure tenant, Ms H would also have had no security on his death.

Ms H also argued that:

because section 79(3) provides that the secure tenancy regime applies to the licences as well as tenancies, the interpretation favoured by Miss Hickin should be preferred, because it produces a consistent result whether the joint interest granted is a licence or a tenancy. I am unimpressed with that argument. On one view, the effect of section 79(3) is to require the outcome in relation to a case involving a licence to be identical to that which it would be if the licence had been a tenancy, in which case this argument fails in limine. In the alternative, because many of the legal principles relating to licences (which are simply personal contracts) and tenancies (which are interests in land) are different, it is unsurprising if the incidence of the statutory provision sometimes produced different results when applied to licences from what they produced when applied to tenancies. [para 23]

Appeal allowed and possession order restored.

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What is a service charge?

Published
by
Francis Davey
on 26/07/2010
in Leasehold and shared ownership and Uncategorized
. 1 Comment

In two joined appeals to the Lands Chamber of the Upper Tribunal brought by Southern Housing Group Ltd and Family Housing Association (Wales) Ltd ([2010] UKUT 237 (LC) – not yet available via the tribunal’s website or on bailii), the tribunal considered whether, on construction of the relevant leases, a payment was a service charge within the meaning of s18 of the Landlord and Tenant Act 1985. In both cases the LVT had held that the charge was a service charge (in favour of the tenant).

As readers will know, if a charge is a s18 service charge, then numerous provisions intended to protect tenants will bite, including the requirement that any such charge is reasonable (in s19 of the Act) but s18 does not cover all charges that are payable by a tenant to a landlord, it provides:

(1) In the following provisions of this Act “service charge” means an amount payable by a tenant of a dwelling as part of or in addition to the rent—
(a) which is payable, directly or indirectly, for services, repairs, maintenance or insurance or the landlord’s costs of management, and
(b) the whole or part of which varies or may vary according to the relevant costs.

In the Welsh case clause 1.1 of the tenant’s lease stated:

You agree to pay the following charges to the Association weekly in advance at the commencement and throughout the period of the tenancy subject to 1.2 below.

There then followed a table of charges, one entry of which was headed “Service Charges” against a value of £8.27. Clause 1.6 allowed the landlord to vary the service charge once every six months by giving 4 weeks written notice to the tenant.

So far then the charge appears to be one that is set by the landlord, rather than varying with costs incurred by the landlord.

In Home Group Ltd v Lewis (LRX/176/2006) the Lands Tribunal had considered a lease where the tenant’s payment for service charges could be varied in this way. In practice the level of charges was set based on the actual costs incurred, subject to consultation with the tenants, but there was no requirement in the lease that it should be set in that way.
Judge Huskinson held that such a charge was not a “service charge” within the meaning of s18. Home Group Ltd was followed by the Lands Tribunal in Chand v Calmore Area Housing Ltd (LRX/170/2007).

The landlords’ appeals were made on the ground, relying on those earlier authorities, that the charges did not vary with the relevant costs and so were not service charges.

Unfortunately for the landlord in the Welsh case, its lease also stated (at clause 1.8) that:

The Association will seek to recover through Service Charges only its actual expenditure incurred in providing services, equipment and furniture plus an administration fee. Where services are provided to a number of premises the Association may apportion the charge.

That was, in the Upper Tribunal’s view, fatal to the landlord’s case. Clause 1.8 limits what the landlord may recover as a service charge. S.18(1)(b) only requires that a service charge “may” vary with the relevant costs so the fact that the landlord need not increase the service charge if there were an increase in costs is irrelevant since it might do so. Home Group and Chand were quite different cases because in those cases the lease did not contain any particular provision as to how the rent or service charge would be calculated.

Southern Housing’s case was, if anything, worse since, in addition to a detailed explanation of how the service charge might be calculated (relative to costs incurred) the lease stated:

Our service charges are subject to the provisions of the Landlord and Tenant Act 1985 (as amended from time to time)…

Followed by some more detail about consultation and tenant’s rights. Moral: if you don’t want legislative provisions to apply to your lease – don’t say they do.

I cannot say I am entirely surprised about the outcome of the case, but it is interesting in that it emphasizes the importance of the word “may” in s18(1)(b).

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A very short note about Wales

Published
by
J
on 26/07/2010
in Housing law - All
. 4 Comments

As we’ve previously reported, the National Assembly for Wales has been seeking legislative competence over social housing and gypsy and traveller law. The Legislative Competence Order has now been approved and is available here. It came into force on July 22, 2010.

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Lets all move to….Parliament Square

Published
by
David Smith
on 25/07/2010
in FLW case note, Housing law - All and Possession
. 0 Comments

Hall & Ors v Mayor of London (On Behalf of the Greater London Authority) [2010] EWCA Civ 817 (16 July 2010)

The case report on the appeal between the Mayor of London and various occupiers of Parliament Square Gardens has appeared on BAILII.

For those who don’t live in or near London, Parliament Square Gardens (PSG) is the area of grass surrounded by statues and walkway which sits between the Houses of Parliament, Westminster Abbey and the new Supreme Court building. It has often been a site for protest but has been the subject of long-term occupation by a number of protesters. The background to these protests was set out by Mr Justice Griffith Williams in his original High Court judgement which was the subject of this appeal.

3. On 1 May 2010, four separate groups said to represent the Four Horsemen of the Apocalypse and which had formed up at different locations across London arrived and set up a camp which they named their ‘Democracy Village’. Their then stated intention was to remain until 6 May 2010, the date of the General Election but they have continued to occupy PSG and (on the evidence of a number of the defendants …) have every intention to do so for the foreseeable future.
4. Brian Haw (the second defendant) has been camping lawfully since 2001 on a pavement on the eastern side of PSG – a part of the highway controlled by Westminster City Council. He was joined some years later by Barbara Tucker (the third defendant). They have been conducting their own protest for Love, Peace, Justice for All. They and those associated with them are in no way a part of the Democracy Village.
5. The defendants who are a part of the Democracy Village are demonstrating variously in respect of a number of causes – these include the war in Afghanistan, the war in Iraq, genocide, war crimes and world wide environmental issues.

Mr Justice Griffith William made an order for possession against all but 2 of the Defendants and also made an injunction order against all but 2 Defendants requiring them to remove tents and other structures from the grassed area of PSG, not to erect any further structure, to leave PSG and not to organise or take part in further assemblies there that do not have the consent of the Mayor.

Permission to appeal was sought from the Court of Appeal and this was heard at the same time as the appeal itself before the Master of the Rolls (with LJ Arden and LJ Stanley Burnton) who gave the leading decision. There were five issues at appeal which were clearly and succinctly set out by the MR:

First, whether the trial below was fair – whether it complied with article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). Secondly, whether the claim for possession was properly constituted. Thirdly, whether the order for possession and the injunction complied with articles 10 and 11 of the Convention in terms of proportionality. Fourthly, whether an injunction was a permissible remedy in the light of section 385 and the Byelaws. Fifthly, there are issues concerning costs.

The first issue, that of the fairness of the trial, concerned the suggestion that the possession hearing had been listed very quickly. However, it was not listed sooner than the minimum time specified in the CPR nor even close to that minimum time. It was also the case that there had been two prior directions hearings so the possession proceedings were not in any way a surprise to the Defendants. While it was true that the speed had meant that some of the Defendants had been unable to obtain publicly funded representation, all the issues had been sufficiently aired by the six barristers who were retained in the matter and so no significant disadvantage was caused to those Defendants who were forced to represent themselves. The final point on this issue was that the issues being raised by the Defendants were of prime importance and were ones which attracted the protection of the ECHR. This was not doubted by the Court but they did not consider it of much relevance to the matter at hand.

The most interesting area of appeal concerns the right of the Mayor to seek a possession order at all. This point was based around the fact that the Mayor does not actually enjoy a legal estate in the land of PSG, although the Court was clear that he has control over it. This control is awarded by section 384 of the Greater London Authority Act 1999. Subsection 1 states:

(1) The land comprised in the site of the central garden of Parliament Square (which, at the passing of this Act, is vested in the Secretary of State for Culture, Media and Sport) is by this subsection transferred to and vested in Her Majesty as part of the hereditary possessions and revenues of Her Majesty.

The argument put forward for the Defendants was that the Mayor, while statutorily empowered to control PSG has no right to commence possession proceedings. This was well-summarised by the Court in the following terms:

(i) a claim for possession of land is the modern equivalent of a claim for ejectment (see the discussion in Secretary of State for the Environment v Meier [2009] UKSC 11; [2009] 1 WLR 2780, paragraphs 6-7, 26-33, and 59-61); (ii) a claim for ejectment (as opposed to a claim for an injunction in trespass) could only be maintained by someone who could establish a legal estate in the land (see e.g. per Lord Mansfield CJ, and Aston and Willes JJ in Roe v Harvey (1769) 4 Burr 2484, 2487, 2488 and 2489 respectively, and per Bayley J in Harper v Charlesworth (1825) 4 B & C 574, 589); and (iii) it would represent an unprincipled departure, fraught with inconsistencies and unforeseeable problems and conundrums, to depart from this rule (as the Supreme Court of New South Wales decided in Georgeski v Owners Corporation [2004] NSWSC 1096)

The Court pointed out that this argument was inconsistent with the reasoning in Manchester Airport PLC v Dutton [2000] 1 QB 133 but it was argued by the Defendant’s that that decision had been made without the benefit of the authority they cited and also that their view that possession should be bound by the same principles as ejectment was supported by the Lords in their ruling in Meier.
For the Mayor it was argued that the prior possession of the mayor was sufficient to establish his prior seisin or right to title. However, the presumption of prior seisin is rebuttable by evidence (see Asher v Whitlock (1865) LR 1 QB 1) and the presumption was clearly rebutted by the statutory basis on which the mayor controlled PSG.

The Court accepted that there was force in the Defendants’ arguments but was also of the view that the “modern law relating to possession claims should not be shackled by the arcane and archaic rules relating to ejectment, and, in particular, that it should develop and adapt to accommodate a claim by anyone entitled to use and control, effectively amounting to possession, of the land in question”. As it was the decision of the MR in Meier which most substantially supported the ejectment/possession equation the Defendant’s it was fairly fatal at this stage that the MR felt that his opinion was “concerned with a very different aspect of a possession order from that raised here”. Ultimately the Court ruled that the powers granted to the Mayor included an implied right to seek possession and that it “would be scarcely consistent with the powers and duties conferred on the Mayor … if he could be denied the ability to obtain possession of PSG.”

Considering the issue of Articles 10 and 11 it was held by the Court that this case was not similar to Kay or Doherty as no balancing act had been carried out during the passing of the legislation. It was therefore necessary to carry out this balance in this case. This largely came down to whether or not the current protesters prevented other people protesting in PSG. The Court viewed the issue on a wider basis and considered the rights of people to express themselves simply by walking on PSG. On this basis it took the view that the protesters had been protesting for 70 days and had made their point in that time and that they should now go.

The last main issue was whether the High Court should have granted an injunction when there were already criminal penalties available against trespassers on PSG. Following the decision in B & Q [1984] AC 754, 714J it was in order to grant an injunction where it was clear that the criminal penalties available were insufficient to deter continued breaches.

Mr Haw made a separate series of arguments. He distinguished himself from the other Defendants and pointed out that his occupancy of PSG was at a much lower level. Ultimately the Court decided to remit the issue of articles 10 and 11 back to the High Court for reconsideration. This was largely on the basis that being forced to pitch his tent on the pavement (which was not the subject of these proceedings) would have a negative effect on Mr Haw’s health. The Court did express doubt as to whether he would be able to convince the High Court not to make a further order against him.

The issues of costs are not really relevant for our purposes.

In summary permission to appeal and the appeal was granted for Mr Haw and his associates (Ms Tucker, Sweet and Hall) and the matter was remitted to the High Court for reconsideration articles 10 and 11. The other appeals were dismissed.

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Comment Policy

Published
by
NL
on 25/07/2010
in Various (non-housing)
. 0 Comments

We welcome comments on our posts. Our readers and commenters are usually a hugely well informed, knowledgeable, witty and interesting group of people.

However, there has been an increase in the number of ‘post and run’ commenters just trying to get a link to their website. There has also been an increase in the number of people adding comments seeking advice or assistance with their own individual issues, although we have long made it clear that we cannot offer advice via the blog. There have also been people who add comments which contain assertions about identifiable individuals which are not supported by evidence, or are rude or abusive in tone, or are potentially defamatory. I don’t want to have to learn more about Pharmacal orders than I already have done.

Usually any such comments get deleted or edited by us as appropriate. If we’re busy, some slip through the net for a while. Sometimes people have taken exception to having their comments edited and suggested that we had no right to do so.

So, after some discussion and in recognition that Nearly Legal is teetering on the edge of being a bit of an institution, we’ve decided that a formal policy on comments is probably a good idea. The comment policy is here and is also linked to on the ‘About’ page. We don’t think that there is anything in there that amounts to much more than commonsense, a statement of the basic legal position and an acknowledgement that a person’s comments are their responsibility.

The level of comment on the blog is extraordinarily high and debates are usually civil, if sometimes robust. We are just looking to ensure things stay that way.

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