Mr Pickles is unlawful and other bits

Eric Pickles hearing the judgmentCala Homes (South) Ltd v Secretary of State for Communities & Local Government & Anor [2010] EWHC 2866 (Admin) found Eric Pickles, SoS at DCLG, acted unlawfully in scrapping the Regional Strategies for housing development, which also, lest we forget, included requirements for local authorities to identify and develop sites for travellers and gypsys. Mr Pickles had announced the decision to scrap the strategies under s79(6) of the Local Democracy Economic Development and Construction Act 2009.

Alas for Mr Pickles, this has turned out to be unlawful because:
a) the decision involved using that power for an improper purpose by “undermining the policy of the LDEDCA 2009 that there should – ordinarily at least – be Regional Strategies in place for each region”, contrary to the principle in Padfield v Minister of Agriculture, Fisheries and Foods [1968] AC 997 that a “discretionary power conferred by a statute is impliedly limited in some respect by reference to the policy and objects of that statute”, depending on construction.
And b) due to  the failure to carry out a detailed environmental assessment prior to reaching the decision, contrary to the requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 (“the 2004 Regulations”), which give effect in domestic law to Directive 2001/42/EC.

Mr Pickles will now have to consider primary legislation to accomplish his stated end.

In other news..

Brightlingsea Haven v Morris (our last report) – on whether a seasonal caravan site was protected under Mobile Homes Act 1983 – was due in the Court of Appeal today. We are reliably informed that the case had settled before being heard, leaving the question undetermined by the Court of Appeal.

Quadrant Brownswood Tenant Cooperative Limited v White (HC 09 C 03494) – an Art 8 challenge to a housing co-op possession claim – was due to be heard on 9 November 2010, but has been adjourned to some date after 4 January 2011. We understand the tenant was in person on 9 November, so, given the issues involved, this may not be as much of a case to watch as we thought.

But, while on Co-ops, and potentially a very important case for co-op tenants, we’ve learnt that Ms Berrisford in Berrisford v Mexfield has been given permission to appeal to the Supreme Court. Our report on the Court of Appeal hearing is here.

And the Court of Appeal judgements in Universal Estates v Tiensia and Honeysuckle Properties v Fletcher – the tenancy deposit cases we have all been waiting (and waiting) for are apparently to be handed down tomorrow (or today if you are reading this on 11 November). We’re on it.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Deposits, Housing law - All, Possession and tagged , , , , , , .

11 Comments

  1. Quadrant Brownswood Tenant Co-op vs White. Wouldn’t write that off yet White is represented by Selborne Chambers and the case is listed in April 2011

  2. Rather confusingly case tracker has two cases listed with that name. The first one is for PTA and looks like it has been dismissed, the second one is, as you say, listed in April before Arden, Aikens and Patten LJJ.

    Can anyone shed light on what’s going on?

    • Right – I can shed some light myself – hopefully. There is now on casetrack a transcript of a PTA decision for 18/01/11 in case B2/2010/1622B (i.e. the second case in my earlier comment). Jackson LJ refused permission on the ground argued in that hearing but notes that permission had already been granted on other grounds, therefore the April listing must relate to those. It can’t be anything to do with the issue discussed above though – it is a disrepair case.

      That leaves the first case I mention above, which is listed as PTA and a stay of execution (so could be possession), but has been dismissed.

      The problem with my attempts to shed light is that I have realised that I was looking at Court of Appeal listings and I seem to remember thinking that the case we’re talking about was High Court. Would be very odd if there were three cases named the same (apart from the Brownswood/Broomswood confusion).

      So I end up asking again: can anyone please shed any better light on what’s going on?

    • I have been investigating this . I understand that the case that concerns whether Art 8 can be raised as a defence to a claim by a private landlord is in the High Court in April and hat the Bar Pro Bono Unit are now involved on behalf of the tenant.

      The CA case might be tangentially connected but is not the case where that issue is to be resolved .

  3. Quadrant Brownswood v White took an interesting turn on April 14 when Lewison J granted the tenant permission to amend his defence and the claimant an adjournment to consider their options. Hugh Tomlinson or Adrian Carr for QB might be able to shed more light.

  4. Before Lewison J on April 12th Mr White was granted permission to amend his defence as follows:

    1. The tenancy agreement states that it begins on 26.11.2001. Unlike the tenancy in Mexfield it does not say that it will continue until determined by notice.
    2. Under the heading “ending the tenancy” the Co-Op has the right to give NTQ; but only in certain circumstances.
    3. However, clause 4 of that section of the agreement says that the tenancy will end “on the death of the tenant”.
    4. The effect of this is that, subject to the right to give NTQ, it is a tenancy for life at a rent.
    5. Thus by virtue of section 149 (6) of the Law of Property Act 1925 it takes effect as a lease for 90 years.
    6. This gives it the necessary certainty at common law.
    7. If the Co-Op wishes to terminate the tenancy by NTQ before the death of the tenant, that amounts to a forfeiture: Clarke v Widnall [1976] 1 WLR 845; Clays Lane Co-Op v Patrick (1984) 49 P & CR 72
    8. But a forfeiture must be preceded by notice under s. 146 of the Law of Property Act which specifies the breach complained of.
    9. Although the covering letter with the NTQ specified the obligations alleged to have been broken, it did not specify the particular breach complained of.
    10. If the lease takes effect as a lease for 90 years (under s. 149 (6)) and if the service of NTQ is an effective forfeiture, then the court has power to give relief against forfeiture in an appropriate case; in which event this tenancy is HRA compliant.

    Qaudrant Brownswood’s top heavy team applied for an adjournment and I understand were left in such a state of disarray as to forget to ask for costs!

    • That is an ingenious argument, certainly. I’ve been thinking about it, but I’m lacking some key facts. Looking back over our noting of this case, I see that we actually have no idea what the basis for the original possession claim was. If you know, what were the alleged reasons for Quadrant Brownswood seeking possession?

  5. Quadrant Brownswood’s issued Mr. White an NTQ the day before the disrepair case was due to begin this followed a 5 year investigation by Remington Hall instigated by Quadrant Brownswood Management after Mr. White complained about dampness in his home. [edited by NL] Remington Hall established that Mr. White had lodgers living with him periodically in 2007 a fact that Mr. White did not dispute. QB went on to allege Mr. White was in receipt of benefits and living off “illegal and immoral earnings”. In fact Mr. White had informed housing benefits about the lodgers. No matter QB claimed his tenancy was Void as per Prudential and without notice to him or any other member had been replaced by a weekly tenancy with no security, that they had an unfettered right to possession as per Mexfield and were not amenable to HRA. This despite the fact they had previously received significant funding from the Housing Corporation and are a registered charity who’s sole purpose is to provide social housing.
    In the transcript of the disrepair trail HHJ Bailey commented on the statement of Quadrant Brownswood Manager Mr Victor Hammond that it bore no relevance to the proceedings and was nothing more than “an attempt at character assassination” of Mr. White.
    Before Justice Lewison it became clear that the taking in of lodgers was contained within the tenants rights and not the tenants obligations, the allegation of living off “illegal and immoral earnings” unsupported by any evidence was nothing more than a further attempt as HHJ Bailey so aptly put it, nothing more than yet a further attempt to assassinate Mr. White’s character.
    As a provider of social housing one would hope that Quadrant Brownswood would focus their efforts on providing and maintaining social housing for the benefit of all members.

  6. The Quadrant Brownswood v White saga is an extraordinary tale, but P’s three comments above are not the easiest thing to find on the blog. Might I ask for a round-up of the whole sad and sorry tale as a seperate post either now or when it is next in court.

    • I was thinking something similar. The trouble is we haven’t really got enough in the way of transcripts or judgments yet. So there will be a round up..

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