news from 07.2010

31.07.2010

Succession to a secure tenancy of a house under Pt 5 Housing Act 1985
Saturday, July 31, 2010

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

Solihull Metropolitan Borough Council recovered possession of a valuable three bedroomed property which had been claimed by the daughter of the former joint tenants. Her parents had split up and her father moved out of the property, but failed to tell the local authority so remained the joint tenant but did not live at the property. On the death of the Defendant’s mother, the Council argued that the father was the sole tenant by right of survivorship. As he was not residing at the property, he was not a secure tenant so his tenancy could be terminated by service of a Notice to Quit.
The Defendant defended the subsequent possession proceedings by claiming that she was entitled to succeed to her late mother’s tenancy, and that the statutory rules on succession overrode the common law rule of survivorship.

At first instance, the Council were granted a possession order, but this was overturned by the Circuit Judge on the Defendant’s appeal. The Court of Appeal has now granted the Council’s appeal and restored the possession order.

The Council argued that nothing in the statutory provisions on survivorship overruled the common law characteristics of a secure tenancy. Indeed, earlier case law, particularly Birmingham City Council v Walker [2007] UKHL 22, had ruled that the common law was maintained by the statute and “a secure tenancy can in principle pass in any way permissible at common law” [per Lord Hoffman at paragraph 5].
The Defendant argued that the words of section 85 were very clear:

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, …

She argued that a secure tenant had died, and she was qualified to succeed, so the plain words of the statute were fulfilled. Accordingly, the tenancy was vested in the Defendant under s.89(2) ‘by virtue of this section’, depriving her father, the former secure tenant, of his interest in the tenancy.

The Master of the Rolls found that although this did seem to follow from those two terms of s.89 alone, and would produce a satisfactory result in the facts of this case, one had to consider the wider statutory context and whether the construction contended for resulted in a sensible outcome when considered more widely. He noted that where one of two joint tenants was not entitled to succeed (for example if they were not family members),

“the interpretation put forward by [the Defendant] … 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]

Further, “the tenant” in the section, where there is a joint tenancy, is to be read as meaning 'the joint tenants or any one or more of them': Lloyd v Sadler [1978] 774.

Catherine Rowlands represented Solihull Metropolitan Borough Council.

Click here for full text of the judgment

29.07.2010

No free standing right to reside under Article 18 EC
Thursday, July 29, 2010

Lekpo-Bozua v London Borough of Hackney & Ors [2010] EWCA Civ 909

The Court of Appeal has held that there is no free standing right to reside under Article 18 EC. It held that the permanent right of residence is subject to the limitations and conditions contained in the measures adopted to give the EC Treaty effect.

In its review decision the local authority decided that the Appellant was owed a limited housing duty by virtue of the fact that her niece (upon whom she relied for priority need) was not a qualified person under regulations 4 and 6 of the Immigration (European Economic Area) Regulations 2006. The niece did not meet the requirements for being a student because she did not have comprehensive sickness insurance and had not made a declaration that she had sufficient means.

On appeal the Appellant sought to rely on Article 18 of the EC Treaty (now Article 21 TEU) in establishing a free standing permanent right of residence. Article 18 provides for a permanent right of residence for an EU national who has ‘resided legally’ in another member state for a period of five years.

Sir Anthony May President of the Queen’s Bench Division said that the appellant’s niece did not have a permanent right to reside in the UK under Article 18 EC in circumstances where the limitations and conditions laid down by Directive 2004/28 and the 2006 Regulations were not met.

In addition, the Court held that there was no Baumbast lacuna.

At paragraph 18 May LJ said:

‘It is, in our view plain that residing ‘legally’ in Article 16 of the Directive means ‘in compliance with the conditions laid down in this Directive’…The lawful residence contemplated by Article 16 of the Directive is residence which complies with Community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality’

The Court considered the cases of Abdirahman v SSWP [2008] 1 WLR 254, Baumbast v SSHD [2002] ECR 1-701, McCarthy v SSHD [2008] EWCA Civ 641, Trojani v Centre Public d’aide social de Bruxelles [2004] ALL ER (EC) 1065 and R (Bidar) v Ealing LBC [2005] QB 812 amongst others.

Kelvin Rutledge and Kuljit Bhogal were instructed by Hackney LBC.

Click here for full text of the judgment

23.07.2010

Southwark student accommodation, regeneration and affordable housing objectives
Friday, July 23, 2010

An appeal has recently been allowed at 120 - 138 Walworth Road against the London Borough of Southwark into a scheme promoted by Morag Ellis QC on behalf of Goldcrest plc for a mixed use development comprising 232 student accommodation units, commercial and retail floorspace at a site in the Elephant and Castle Regeneration Area. The inspector (Zoe Hill) considered questions of need for student accommodation, both London wide and in relation to Southwark, as well as whether or not the development would harm the Council's regeneration and affordable housing objectives. She also found that the Borough's SPD requiring a letter of support from a local educational institution was not a reason for rejecting the proposal which would meet needs and accord with development plan policy. This is an important and interesting decision given current market interest in student schemes.

23.07.2010

Requirements of Circular 05/05: Planning Obligations
Friday, July 23, 2010

The Secretary of State has recently issued his decision on the planning appeal last year into major redevelopment proposals for Brighton Marina. The appeal was dismissed on the ground that the unilateral S.106 obligation was defective in several respects including the failure by the developers to bind in all parties interested in the land. In particular, although the Council is the freeholder of the site on Brighton's coast, it was not made a party to the undertaking, nor were the two most significant tenants on the redevelopment site, Asda and McDonald's. The Secretary of State was not prepared to offer the appellants the chance of more time to try and perfect the obligation, to which Morag Ellis QC and Rob Williams had objected on behalf of Brighton and Hove City Council at the inquiry. It was held that the undertaking failed to meet the requirements of Circular 05/05 and presented unacceptable risks to the public interest. The scheme had originally been rejected by members against officers' recommendation and, although the inspector and Secretary of State regarded elements of it as less than ideal, the decision did not ultimately turn on points of design or adequacy of public open space provision. The decision is also notable for its consideration of the CLG/CABE sponsored Building for Life evaluation method. Overall, the decision follows the line taken by the Secretary of State under the previous Government in respect of parties to s.106 obligations, for example at the TRL site in Bracknell in 2009, where Morag Ellis QC and Tom Cosgrove successfully resisted development on, amongst other bases, the inadequate s.106.

06.07.2010

The Plastic Revolution
Tuesday, July 06, 2010

Nottingham City Council successfully defended an appeal of its Licensing Sub-Committee review of the premises licence for Revolution Vodka Bar in Nottingham, the review having been brought by Nottinghamshire Police as a result of a number of injuries caused by bottles and glasses on the premises.

The magistrates, sitting in their appellant capacity, upheld the decision of the Licensing Authority to require the use of polycarbonate drinking vessels rather than toughened glass, and increased the suspension of the premises licence from 14 to 28 days. Revolution sought to challenge the magistrates’ decision by way of judicial review: permission and interim relief were refused; a renewal of the application is awaiting a hearing date.

The decision is an important one to authorities seeking to achieve a safer night time economy by encouraging the use of polycarbonate drinking vessels in high-risk venues. It is significant here that the appellant’s argument that the use of toughened glass was adequate protection did not succeed.

Philip Kolvin QC represented Nottingham City Council and Rory Clarke represented Chief Constable of Nottinghamshire Police.