COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(HIS HONOUR JUDGE BRADBURY)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
SIR PETER GIBSON
|- and -
LONDON BOROUGH OF NEWHAM & ANR
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR J RUSHTON (instructed by London Borough of Newham) appeared on behalf of the Respondent.
Crown Copyright ©
Lady Justice Arden:
The Right to Buy
The Dispute in this Case
The Issues on this Appeal
The Jurisdiction Issue
"(1) A county court has jurisdiction-
"(a) to entertain any proceedings brought under this part and
"(b) to determine any question arising out of this part or under [a conveyance or grant execute a pursuance of the right to acquire on rent to mortgage terms];
"but subject to sections 128 and 158 […] (which provide for matters of valuation to be determined by the district valuer).
"(2) The jurisdiction conferred by this section includes jurisdiction to entertain proceedings on any such question as is mentioned in subsection (1)(b) not withstanding that no other relief is sought than a declaration…"
"128. — (1) Any question arising under this Part as to the value of a dwelling-house at the relevant time shall be determined by the district valuer in accordance with this section.
"(2) A tenant may require that value to be determined, or as the case may be re-determined, by a notice in writing served on the landlord not later than three months after the service on him of the notice under section 125 (landlord's notice of purchase price and other matters) or, if proceedings are then pending between the landlord and the tenant for the determination of any other question arising under this Part, within three months of the final determination of the proceedings.
"(3) If such proceedings are begun after a previous determination under this section—
"(a) the tenant may, by notice in writing served on the landlord within four weeks of the final determination of the proceedings, require the value of the dwelling-house at the relevant time to be re-determined, and
"(b) the landlord may at any time within those four weeks, whether or not a notice under paragraph (a) is served, require the district valuer to re-determine that value;
"and where the landlord requires a re-determination to be made in pursuance of this subsection, it shall serve on the tenant a notice stating that the requirement is being or has been made.
"(4) Before making a determination or re-determination in pursuance of this section, the district valuer shall consider any representation made to him by the landlord or the tenant within four weeks from the service of the tenant's notice under this section or, as the case may be, from the service of the landlord's notice under subsection (3).
"(5) As soon as practicable after a determination or re-determination has been made in pursuance of this section, the landlord shall serve on the tenant a notice stating the effect of the determination or re-determination and the matters mentioned in section 125(2) and (3)(terms for exercise of right to buy).
"(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established, then, as soon as all matters relating to the grant . . . have been agreed or determined, the landlord shall make to the tenant—
(a) if the dwelling-house is a house and the landlord owns the freehold, a grant of the dwelling-house for an estate in fee simple absolute, or
(b) if the landlord does not own the freehold or if the dwelling-house is a flat (whether or not the landlord owns the freehold), a grant of a lease of the dwelling-house,
in accordance with the following provisions of this Part."
The Extent of the Tenancy Issue
"Parcels clauses and plans in the conveyance not infrequently give rise to disputes on the application of what appears on the piece of paper and what lies physically on the ground."
The same applies to parcel clauses in tenancy agreements. That is the nature of the dispute in this case and it is established that in the event of a dispute as to what a parcel clause means the court is entitled to take into account extrinsic evidence with the possible exception of subsequent acts of the parties into account.
"… this case for me has turned on the evidence of a photograph showing the neighbour, Wendy, and the oral evidence of the witnesses. Where there has been a direct conflict between the claimant and Miss Simpson as to the existence of a fence I prefer the more measured evidence given by Miss Simpson… The other strong evidence that does support the defendant's contentions that there is a privacy area in front of 76 Hameway came from the photograph that Miss Simpson produced… That photograph is conclusive and, in so finding, I have to reject the evidence of Mr Prior on the basis of his recollection of the description of the back garden area some years ago as wrong… I have to reject the claimant's evidence… I reject her evidence that she never had a privacy fence dividing her garden from the back wall of 74/76 Hameway. Therefore, in these proceedings, I make a declaration… [italics added]."
Lord Justice Mummery:
Sir Peter Gibson:
Order: Appeal allowed in Part.