England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
(MR JUSTICE CALVERT-SMITH)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th February 2008

Lord Justice Lloyd:

1. This is a second appeal. It comes directly from a judgment of Calvert-Smith J and indirectly from an order of HHJ O'Rorke dated 3 July 2007, which was an order for possession against the appellant, Mr Langridge, in favour of the respondent, Mansfield District Council, of premises called 30 Willoughby Court, Bellamy Road Estate, Mansfield. The legal issue is whether an agreement between the parties relating to those premises and described as a licence gave the appellant a secure tenancy under section 79 of the Housing Act 1985. More specifically, the question is whether that agreement conferred on the appellant a licence to occupy a dwelling house within the terms of section 79(3) of that Act, such that, if it had been a tenancy, the premises would have been "let as a separate dwelling". If so, the licence amounted to a secure tenancy at the relevant time. This would have been inconsistent with the parties' intentions expressed openly at the time but it is said on the appellant's behalf by Mr Colville that this result is unavoidable, despite HHJ O'Rorke and Calvert-Smith J having found to the contrary.
2. The facts are somewhat unusual. Mr Langridge was a secure tenant of the respondent from April 2004 of other premises called 7 Mappleton Drive. Mr Langridge suffers from a number of conditions which render him not the easiest of neighbours or tenants. On 23 March 2006 the respondent began possession proceedings against him in relation to 7 Mappleton Drive on the grounds of nuisance and annoyance caused to neighbours. A few days later Mr Langridge suffered a serious attack and spent some months in hospital recovering from the effects of that attack. While he was in hospital the keys to 7 Mappleton Drive were returned to the council on his behalf, but not by way of surrender of the tenancy. Later when he came out of hospital he wished to return to 7 Mappleton Drive and asked for the return of the keys. The council refused, being concerned about the effect of Mr Langridge going back into 7 Mappleton Drive, pending the trial of the possession proceedings; that is to say, the effect of that both on Mr Langridge and on his neighbours, not, as I understand it, the effect of that in relation to the proceedings. On Mr Langridge's behalf an application was made for an order that the keys be returned to him and that came on for hearing on 10 August 2006 before HHJ Inglis. The council offered alternative accommodation to him pending the trial of the possession claim in order to avoid being ordered to return the keys to him. I need to say something about this in order to set the grant of the licence into its proper factual context. I will first read paragraph eight of the judgment of HHJ Inglis, delivered on 10 August, on the injunction proceedings:

"I have already decided, in the framework of what should happen, that the stay on the possession proceedings should be removed and they should be tried at Mansfield County Court on 19^th September, which is a bit over five weeks away, but the question has arisen what should happen in the meantime. The council have in fact identified separate accommodation in another area of Mansfield where Mr Langridge can live in the meantime under an insecure tenancy on licence while his position at this flat is still maintained, he having said in July that he did not want to go to 7 Mappleton Drive. He may have changed his mind in the process of doing so and his attention focuses on that address at the moment. I have ventured the opinion, looking at the evidence as a whole, including the evidence of the state of the flat in early 2006, that it is likely that the case for an outright order for possession of 7 Mappleton Drive will prove overwhelming. I can say that because I am not likely to be trying the case in September, but it is the plain drift of the evidence, despite the denials, at least in part, that appear in the Defence. The plain fact is likely to be that, with this man with his misfortunes and problems, accommodation in this sort of residential unit is likely, wherever he is, to cause significant trouble and be unsuitable for him. That does not get away from the fact that on the face of it he is entitled to his injunction to go back into 7 Mappleton Drive and I would grant such an injunction but for the fact that there has been arranged somewhere else for him to go in Mansfield. The point is made by Mr Wright on his behalf that, if he has the intervening weeks at 7 Mappleton Drive, it will give him an opportunity to clear the place up and demonstrate that he can operate there appropriately, but he is surrounded there by a number of people, some of whom are likely to be giving evidence in the case, and he is a man who, plainly, from the evidence of Dr Holden, has a tendency to be impulsive and paranoid. I think it would simply be asking for trouble and undermine his case in other directions if he were at 7 Mappleton Drive. All that in the context that I can arrange the hearing at Mansfield in the next few weeks that will determine the underlying issues and whether he will be able to remain in this flat makes me come to the conclusion that, although I grant the injunction, it will not be effective until the trial of the possession action. There will be permission to apply to the court on short notice at Nottingham for the injunction to remain effective if for any reason this accommodation that he is being offered does not materialise or becomes difficult or unavailable, because he is entitled to have somewhere to live. That being afforded to him, in my judgment, it is appropriate to grant the injunction but to stay its effectiveness until the trial of the action. There will be permission to apply on short notice to make it effective."

3. For those reasons he made an order, the first two paragraphs of which are as follows:

"IT IS ORDERED THAT

1.  The Defendant may not exclude the Claimant from 7 Mappleton Drive, Mansfield and must deliver to him the keys to the property, this order will not come into effect until the conclusion of the trial of the Defendant's possession action against the Claimant 6MF00829 or further order.

"2.  Permission to Claimant to apply to the Court to make the order in paragraph 1 effective forthwith in the event of the Claimant becoming homeless..."

4. On the next day the council's solicitors wrote to the appellant's solicitors in the following terms:

"Your client will be expected to sign a licence agreement to occupy the premises at 30 Willoughby Court, Bellamy Road Estate. We request that you confirm to us that it is accepted by your client that the agreement for his occupation of these premises is on the basis of a licence granted to him and will not create a secure tenancy as defined by the Housing Act 1985. The agreement will expire on 22^nd September 2006 and is purely for the purpose of providing him temporary accommodation pending trial of the possession proceedings which have now been listed for hearing at Mansfield  County Court on 19^th, 20^th and 21^st September 2006."

5. The licence agreement itself followed. It was signed on 15 August but is expressed to start on 14 August and to expire on 22 September. That, as appears from the letter, was then expected to be the day after the trial. It also contains provision for termination on notice. In fact the trial was delayed by a week and judgment was given on 28 September. The material provisions of the licence are as follows:

"Mansfield District Council

Housing Department

Licence Agreement.

I, PAUL DEREK LANGRIDGE agree to become the licensee of 30 WILLOUGHBY COURT, from 14^th day of AUGUST 2006 and to expire on 22^nd day of SEPTEMBER 2006.

I agree to abide by the matters set out below and in the schedule hereto and shall in consideration pay the sum of £40.06 per week to the council (the licensor).

It is understood by the licensor and the licensee that this licence does not fall within the protection of the Rent Act 1977 (as amended) or Housing Act 1985.

(1) The licence is entered into by the licensor and the licensee on the above Basis only.

(2) The licensee shall have the right to use the premises stated above and the furniture, fittings and effects therein.

(3) The licence shall not exceed a maximum period of 28 days from the date that the licensee is served notification of determination.

(4) The licensee acknowledges that this licence is personal to the licensee and does not permit the licensee to authorise the use of premises or effects by any other person.

(5) The licensee acknowledges that he/she has received a copy of this licence."

6. There were also, in schedule one, agreements by Mr Langridge as regards the use of the premises and his conduct in them, but nothing turns on those for present purposes. He moved into 30 Willoughby Court and lived there. The weekly sums due under the licence were paid, funded by housing benefit, and those payments continued after 22 September 2006. The trial took place in relation to 7 Mappleton Drive, and HHJ Mithani made an immediate order for possession. Mr Langridge applied for permission to appeal but permission was refused by the judge and by the Court of Appeal.
7. On 3 October 2006 the council served a notice of determination of the licence on Mr Langridge in respect of 30 Willoughby Court. By these proceedings the council sought a possession order and it did so expressly on the footing that Mr Langridge became a trespasser on or about 5 November 2006 by virtue of that notice -- see paragraph 3(vii) of the reply and defence to counterclaim.
8. Mr Langridge lives at 30 Willoughby Court; it is his only home and he does not share it, or any accommodation in it or elsewhere, with anyone else. It is a self-contained dwelling, wholly separate from 7 Mappleton Drive. On Mr Langridge's behalf Mr Colville contends that this makes the licence take effect as the secure tenancy despite the terms of the document.
9. Section 79(1) of the Housing Act 1985 is as follows:

"A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied."

The effect of that is subject to a number of exceptions referred to in sub-section (2) and principally set out in schedule one to the Act. Sub-section (3) is as follows:

"The provisions of this Part apply in relation to a licence to occupy a dwelling-house (whether or not granted for a consideration) as they apply in relation to a tenancy."

Sub-section (4) needs to be noted as well:

"Subsection (3) does not apply to a licence granted as a temporary expedient to a person who entered the dwelling-house or any other land as a trespasser (whether or not, before the grant of that licence, another licence to occupy that or another dwelling-house had been granted to him)."

10. The landlord condition referred to in section 79(1) is satisfied by virtue of section 80(1) because the interest of the landlord belongs to a local authority, namely the respondent. The tenant condition is defined in section 81 as follows:

"The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home."

11. The consequence, if the tenancy or licence is a secure tenancy, is that it cannot be brought to an end by the landlord except by obtaining one of several possible court orders, including an order for possession -- see section 82(1). On behalf of the council Mrs Henderson contended that the licence did not need to be brought to an end by the landlord because it came to an end by virtue of its own terms. However, if that had been the case following a letting for a term certain, section 86 would have the effect that if at the end of that term it was a secure tenancy, a periodic tenancy would arise to follow and that would be a secure tenancy itself. Moreover the point does not appear to arise since, as I have mentioned, the council's contention was that the appellant became a trespasser as a result of the notice of termination of the licence.
12. Section 83 of the Act requires notice to be given before any proceedings for possession. Section 84 and schedule two provide for the grounds on which an order for possession may be made. As I have mentioned, schedule one sets out a number of cases in which something that would or might otherwise be a secure tenancy does not have that status. One to which reference was made is paragraph 4 (accommodation for homeless persons) in the following terms:

"A tenancy granted in pursuance of any function under Part VII of the Housing Act 1996 (homelessness) is not a secure tenancy unless the local housing authority concerned have notified the tenant that the tenancy is to be regarded as a secure tenancy."

13. Two others worth noting in the present context are paragraphs 6 and 7. By paragraph 6 a tenancy is not a secure tenancy if the dwelling-house has been leased to the landlord with vacant possession for use as temporary housing accommodation, those terms include provision for the lessor to obtain vacant possession on the expiry of a specified period, the lessor is not a body which is capable of granting secure tenancies and the landlord has no interest in the dwelling-house other than that of the lease in question or as a mortgagee. That therefore deals with short-term arrangements of a kind which do not, of course, include what happened in the present case. Paragraph 7 is as follows:

"7. A tenancy is not a secure tenancy if—

(a) the dwelling-house has been made available for occupation by the tenant (or a predecessor in title of his) while works are carried out on the dwelling-house which he previously occupied as his home, and

(b) the tenant or predecessor was not a secure tenant of that other dwelling-house at the time when he ceased to occupy it as his home."

14. So in that case, if a tenant was not a secure tenant of a given dwelling-house to which works need to be carried out and substitute accommodation is made available for him, then he does not have a secure tenancy of that substitute occupation.
15. The grounds for possession under Schedule 2 include Ground 8, which complements paragraph 7, Schedule 1, applying if the previous tenancy had been a secure tenancy. The effect of Ground 8 is that if the tenant had been a secure tenant of the dwelling-house which required works and the tenant accepted the tenancy of the substitute dwelling-house on the understanding that he would give up occupation when, on completion of the works, the other dwelling-house was again available for occupation by him under a secure tenancy and the works have been completed and that other dwelling-house is so available, then that is a ground on which the court can make an order for possession. The substitute tenancy is a secure tenancy but it is one which the landlord can expect to be able to bring to an end in those circumstances. None of those, of course, apply to the present facts.
16. If Mr Langridge had been allowed to move back into 7 Mappleton Drive in August 2006 pending the hearing of the possession action he would have been there under his original tenancy, which was a secure tenancy, but subject of course to the upcoming possession proceedings. Assuming that the result of those proceedings had been the same as it actually was, he would have had to have vacated 7 Mappleton Drive on, or shortly after, the making of the possession order.    Instead he was provided with substitute accommodation at 30 Willoughby Court as a temporary expedient pending the trial, expressly on the basis that he would be there only until the trial or thereabouts. If the result of the trial had been that there was no order for possession he would presumably have been able to move back to 7 Mappleton Drive and would have done so as still a secure tenant. If, as happened, he lost the possession claim it was intended that he should be in the same position as if he had still been at 7 Mappleton Drive: having to move out as a result of the making of the possession order. However, the fact that the terms of the agreement were expressed to negate or deny the application of the secure tenancy provisions with the effect that he could be required to leave at the expiration of the licence, whether to go back to 7 Mappleton Drive or to find somewhere else, does not of itself mean that the intended effect corresponds with the legal position. The parties cannot contract out of the effect of these provisions of the Housing Act 1985. The question is whether those provisions do apply, on the facts of the case, so as to create a secure tenancy. If they do, then that is the result despite the parties' intention being otherwise.
17. Mr Colville's contention on behalf of Mr Langridge is that the licence did create a secure tenancy for the following reasons. The agreement was expressed as a licence to occupy a dwelling-house. If it had been a tenancy, it would have been a tenancy under which a dwelling-house was let as a separate dwelling. The landlord condition was satisfied and the tenant condition was also satisfied because Mr Langridge is an individual and occupied 30 Willoughby Court as his only or principal home. That was so despite his continuing claim to return to 7 Mappleton Drive until the possession order was made because at no relevant time was he able to occupy 7 Mappleton Drive. The council kept him out of those premises by refusing to return the key to him and resisting his application for an injunction.
18. Nothing turns on the particular dates in this case. In principle the question whether the premises are let as a separate dwelling or subject to a licence having equivalent effect under section 79(3) is to be decided at the date when the letting or licence comes into effect, absent any later contractual variation to the relevant agreement, whereas the satisfaction of the landlord and tenant conditions needs to be tested later, at any material date, in particular the date when possession is sought. In this case there was no relevant change in circumstances between the start of the agreement in the middle of August 2006, the conclusion of the possession proceedings on 28 September and the termination of the licence by notice on the part of the council thereafter. It seems to me that after 22 September the licence continued on a periodical weekly basis with the payment and receipt of the weekly sums due, but nothing turns on that. Either way, if the agreement created a secure tenancy in August 2006 then it remained a secure tenancy thereafter and if it did not then it did not become one later.
19. On behalf of the council Mrs Henderson contends that there was no intention to create a relationship of landlord and tenant and that there were special circumstances which prevented the agreement from creating a tenancy even though Mr Langridge had exclusive occupation of the premises. She also contends that the agreement, being no more than a licence, was not such a licence as falls within section 79(3) of the 1985 Act, on the basis that this provision only applies to licences which have the characteristics of a tenancy. Furthermore she argues that the circuit judge and Calvert-Smith J were justified in holding, as they did, that even if the agreement created a tenancy or a licence which might be within section 79(3) it did not amount to a secure tenancy or licence because the premises were not "let as a separate dwelling".
20. In the county court HHJ O'Rorke held, despite the contrary submission from the council, that the tenant condition was satisfied on 22 September 2006 because 30 Willoughby Court was at that date Mr Langridge's only or principal home and that it remained so at all material times thereafter. The judge decided in favour of the council on the basis that 30 Willoughby Court was not "let as a separate dwelling", relying for that to a significant   extent   on   the   decision of the Court of Appeal in Tyler v  the Royal Borough of Kensington and Chelsea (1990) 23 HLR 380, to which I will turn before long.
21. Mrs Henderson relied on a number of the judge's findings of fact set out in his judgment. First, at paragraph 14, as follows:

"Despite some submissions to the contrary, it seems to me plain that I should find as a fact that this licence agreement was entered into as a result of the indication given by Judge Inglis and the undertaking given to him by Mr Lee on behalf of Mansfield District Council. It was the mutual understanding and intention that the occupation of 30 Willoughby Court was linked inextricably to the possession proceedings and was to provide temporary accommodation to Mr Langridge until such time as his status at 7 Mappleton Drive could be clarified by a final order of the court, either that he would be evicted by order of the court or that he be reinstated under the terms of the injunction order made by HHJ Inglis, but suspended."

Later, at paragraph 39 he said this:

"30 Willoughby Court is geographically certainly well separated from 7 Mappleton Drive even though, as I find as a fact, there was an inextricable link   between the grant of the licence to occupy  30 Willoughby Court and the possession proceedings."

He summarised his conclusion at paragraph 46 as follows:

"For the avoidance of doubt I find that he occupied and continues to occupy those premises as his sole and principal residence; secondly, that it was the mutual intention at the time that agreement was entered into that it should limited in time to the delivery of judgment in the possession proceedings; thirdly, that no action since then on the part of the Council has changed the nature of that licence; fourthly, that the purpose for which the licence was given has now fallen away."

22. Mr Langridge appealed against the possession order. The appeal was heard by Calvert-Smith J on 21 September 2007. The case was argued on much the same lines, with the case of Tyler featuring prominently. The judge upheld the judgment below and approved the reasoning of the circuit judge without venturing much in the way of further analysis of his own. His conclusion can be seen from the terms of his paragraph 48:

"Having considered the arguments on both sides and the careful judgment of His Honour Judge O'Rorke, I find that the respondent did occupy 30 Willoughby Court as his sole residence, that it was the intention of both parties that the Appellant's right to occupy was to be limited in time to the delivery of judgment in the possession proceedings[,] that nothing occurred in the interim period to change the nature of that agreement, and that consistent with the principles set out in, and the decision on similar facts in Tyler, the dwelling was not a separate dwelling and that the right to occupy ceased when the underlying assumption underlying the agreement fell away."

He therefore dismissed the appeal.

23. In support of her contention that this licence is not one to which section 79(3) applies, Mrs Henderson on behalf of the council relied on a passage from the speech of Lord Templeman in Street v Mountford [1985] AC 809 at 821. That case was concerned with an agreement relating to furnished accommodation in the private sector which was described as a licence but which gave the right to exclusive occupation of the residential premises. The House of Lords held that it created a tenancy despite the label "licence" and therefore fell within the Rent Acts.
24. Lord Templeman, who gave the only speech in the House, referred to a number of situations in which A may be in occupation of premises belonging to B by agreement but where no question of a tenancy arose, the circumstances being inconsistent with any intention to create such a tenancy. He referred to a case where the parties did not intend to enter into legal relationships at all, which might be exemplified by occupation by a dependent member of the family of the owner. He also referred to other cases where there is a legal relationship but one inconsistent with tenancy. He gave examples of vendor and purchaser, master and service occupier, and charity and object of charity. At page 821C in the report he said this, having referred to a number of these different cases:

"These exceptional circumstances are not to be found in the present case where there has been the lawful, independent and voluntary grant of exclusive possession for a term at a rent."

25. Mrs Henderson fastened on the word "independent" in that sentence and based on it a submission that the agreement in this case is not independent, albeit that it is lawful and voluntary and conferred exclusive possession. She argued, in reliance on the judge's factual findings which I have mentioned, that it was dependent on the existing landlord and tenant relationship as regards 7  Mappleton Drive. With respect to that submission I do not see that Lord Templeman's use in passing of the word independent can be taken as part of a formulation of what is necessary in order that a so-called licence should be found to constitute a tenancy. But even if it were, that is not the point at issue in the present case under the Housing Act 1985, given section 79(3) which has no equivalent for private sector agreements. In the present case it matters not whether the agreement constituted a licence or a tenancy because if it did constitute a licence which has the effect of giving the right to occupy as a separate dwelling, then section 79(3) brings it into equivalence with a tenancy and if, conversely, it was a tenancy which did not amount to a letting as a separate dwelling then it does not amount to a secure tenancy.
26. Mrs Henderson went on to argue that the dependence of the licence on the existing relationship between the parties as regards 7 Mappleton Drive had the result that it did not amount to a letting or licence as a separate dwelling. She stressed the short-term nature of the arrangement and cited a passage from the speech of Lord Millett in Uratemp Ventures Limited v Collins [2001] UKHL 43; [2002] 1 AC 301. This passage at paragraph 30 of Lord Millett's speech is as follows:

"The words 'dwell' and 'dwelling' are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as 'inhabit' and 'habitation' or more precisely 'abide' and 'abode', and refer to the place where one lives and makes one's home. They suggest a greater degree of settled occupation than 'reside' and 'residence', connoting the place where the occupier habitually sleeps and usually eats."

27. Whatever Mr Langridge may have wanted to do during the period from 15 August to 28 September, he was unable to live and make his home at 7 Mappleton Drive. He was provided with a substitute place where he could live and make his home, namely 30 Willoughby Court. I shall return to the guidance given in Uratemp by Lord Millett on the meaning of the phrase "let as a separate dwelling"; but first I must say something about Tyler v the Royal Borough of Kensington and Chelsea, which was relied on before us as it has been below.
28. Tyler is no doubt as close a case to the present as can be found, but the relevant facts appear to be to be significantly different from those of the present case as regards the issue of the separate dwelling. Mr Tyler had a secure tenancy of a ground floor flat in a house belonging to the Greater London Council. It came to be in a very bad state of repair. In May 1982 he was given a licence to occupy the first floor flat in the same building, pending the completion of building works to the ground floor flat, when that flat would again be fully available for his occupation. He retained his tenancy of the ground floor flat and did not, at that stage, abandon or move out of it. The works were never completed. He exercised his right to buy in respect of the ground floor under the Housing Act 1980. He was accordingly granted a long lease of it. He then moved out of the ground floor flat into the first floor flat and later sought to exercise the right to buy that flat on the basis that he had a secure tenancy of it.
29. The county court judge held that he was not a secure tenant of the first floor and that, having abandoned the ground floor flat, he could not retain the benefit of the licence which had been granted pending the date when, after completion of the works, he could move back into the ground floor; and held that he had never had a licence to occupy the first floor flat as a separate dwelling, but only a licence to occupy it in conjunction with the ground floor flat for the express and limited purpose of supplementing the accommodation let to and still occupied by him on the ground floor, until such time as the ground floor flat had been fully repaired and the use of the whole accommodation and facilities in it were available for and restored to him. Lloyd LJ (as Lord Lloyd of Berwick then was) held that the licence was based on an underlying assumption that the tenant would be returning to use the ground floor flat once the works were complete; and that that assumption no longer held good once the tenant had abandoned the ground floor flat. The licence came to an end by virtue of that act on the tenant's part. On that footing, turning to section 79, Lloyd LJ held that the county court judge was right to decide that, because the licence as regards the first floor was to occupy it in conjunction with the ground floor; it was not a licence to occupy it as a separate dwelling. Ewbank J agreed.
30. One obvious distinction from the present case is that 30 Willoughby Court was not made available to Mr Langridge in conjunction with, or as supplementary to, 7 Mappleton Drive, but rather as a temporary substitute for it; and at a time when Mr Langridge was being deliberately excluded by the council from 7 Mappleton Drive. 30 Willoughby Court is a separate self-contained unit, all of which was made available to Mr Langridge under the agreement with the council, and none of which was shared with anyone else. In that sense, it was let or licensed to him as a separate dwelling. The agreement related only to those premises and he had no other accommodation available to him under that or any other agreement, unlike Mr Tyler, given that he was excluded from 7 Mappleton Drive by the council. In what sense, therefore, Mr Colville asked rhetorically, could it be said that the agreement did not give him a tenancy or licence to occupy 30 Willoughby Court as a separate dwelling? The distinctive characteristic of the present facts are that the licence was entered into as a temporary expedient to provide the appellant with housing, pending the decision of the proceedings relating to 7 Mappleton Drive, in circumstances in which the view was taken by the council that it would be most unsatisfactory both for Mr Langridge and for others, including his neighbours, for him to move back to 7 Mappleton Drive pending the trial; but he had to have somewhere to live until the case was decided.
31. As I have noted, the legislation does make special provision for a number of situations in which accommodation is made available as a temporary expedient. One is section 79(4), which did not apply because Mr Langridge was never a trespasser. Another is paragraph 4 of schedule 1, dealing with action taken by a council under the homelessness legislation. A third is paragraph 7 of schedule 1: the provision of temporary accommodation pending works, where the tenant had not been a secure tenant of the other accommodation; and corresponding to that is schedule 2 ground 8, where the tenant had been a secure tenant of the other accommodation and it is again available to him under a secure tenancy.
32. These provisions show that Parliament did consider some short-term situations and made provision to relieve them in one way or another, as appropriate, from the impact of section 79 and the secure tenancy regime. There is no such provision relevant to the present case, so the question depends entirely on whether section 79(1), or (3) as the case may be, apply in their terms. As I say, it matters not whether the agreement amounts to a tenancy or a licence given the terms of section 79(3). I would reject Mrs Henderson's contention on behalf of the council that, if the agreement amounted to a licence rather than a tenancy, it was a kind of licence to which section 79(3) does not apply. In my judgment, a licence is within that provision if it is a licence to occupy a dwelling house as a separate dwelling and, of course, is not excluded by any provision of schedule one.
33. In Westminster City Council v Clarke [1992] 2 AC 288, the House of Lords held that a licence to occupy a room in a hostel, granted to provide temporary accommodation to someone whom the council considered to be homeless and in priority need, under what is now part 7 of the Housing Act 1996, did not, on its true construction, confer exclusive possession and did not come within section 79(3). At page 298-9, Lord Templeman said this:

"Under the Rent Acts, in order to create a letting or part of a house as a separate dwelling there must be an agreement by which the occupier has exclusive possession of essential living rooms of a separate dwelling house."

34. Later on, at page 299, he said this, referring to the argument of Mr Sedley (as he then was) on behalf of Mr Clarke, that Mr Clarke was a secure tenant even if he did not have exclusive possession:

"Section 79(3), he said, applied to any licence to occupy a dwelling house. This submission would confer security of tenure on a lodger and on a variety of licensees and it is contrary to the language of section 79(3) which applies the provisions of part IV of the Act to a licence 'as they apply in relation to a tenancy.' Part IV only applies to a tenancy of a dwelling house let as a separate dwelling, namely with exclusive possession. Part IV therefore applies to a licence which has the same characteristics. A tenant or licensee can only claim to be a secure tenant if he has been granted exclusive possession of a separate dwelling house."

35. Lord Templeman's reference to essential living rooms and, in particular, in a passage which I have not cited, to cooking facilities as being essential, was disapproved by the House of Lords later in Uratemp Ventures Ltd v Collins, which was concerned with assured tenancies under the Housing Act 1988 rather than secure tenancies under the Housing Act 1985. But nothing turns on that for present purposes. In Uratemp, at paragraph 58, Lord Millett said this:

"In my opinion the position is relatively straightforward. The first step is to identify the subject matter of the tenancy agreement. If this is a house or part of a house of which the tenant has exclusive possession with no element of sharing, the only question is whether, at the date when the proceedings were brought, it was the tenant's home. If so, it was his dwelling. (He must also occupy it as his only or principal home, but that is a separate requirement). If the tenancy agreement grants, in addition, the right to the shared use of other rooms, the question is whether the room or rooms of which he has exclusive possession are his dwelling place or any part of it. That depends on the nature and extent of the right and the character of the other rooms. The right to occupy a living room in common with and at the same time as the landlord is such an invasion of his privacy that Parliament cannot be taken to have intended that the tenant should enjoy security of tenure. For this purpose a kitchen is a living room, at least if it is possible to occupy it and not merely to cook and wash up in it; so that a right to occupy a kitchen (as distinct from a right to make some limited use of its facilities) in common with the landlord will take the tenancy out of the Acts. The presence or absence of cooking facilities in the part of the premises of which the tenant has exclusive occupation is not relevant."

36. Most of that, of course, does not bear on the present case, however; there is no element of sharing a room, and of course, Lord Millett was not considering the circumstances of a case such as Tyler. However, Mr Colville contends that the opening sentences of that paragraph pose the correct test, and that on the facts of this case it can only be answered in favour of Mr Langridge. The phrase "let as a separate dwelling" covers a number of different aspects. One is to exclude premises let to be used as a business rather than as residential purposes. Another is to exclude premises where occupation is shared. Again, if the premises are occupied together with other premises, as in Tyler, they may be excluded by the phrase "a separate dwelling". It may be necessary to consider the terms of the letting; the nature of the accommodation; its construction and its physical situation, and the purpose for which the agreement was entered into. In particular cases, other factors might be relevant. We were referred to cases decided under other legislation, including the Protection from Eviction Act 1977, which uses the phrase "let as a dwelling" and the Town and Country Planning legislation. For my part, I do not find these analogies illuminating. There is plenty of case law on the Housing Act and the Rent Acts without invoking different statutory regimes.
37. Mrs Henderson's main focus, in the end, was on the transient short term nature of the arrangement and of its interdependence with the possession proceedings concerning the concurrent landlord and tenant relationship between the parties as regards 7 Mappleton Drive. She instanced cases of very short-term replacement accommodation, for example, in the case of a sudden emergency due to a gas leak, a police operation or something else of that kind, whereby a tenant may have to be kept out of his or her premises for a day or two. If a secure tenant has alternative accommodation provided for a few days in such circumstances, can it be said, she asked, that he or she would occupy the substitute accommodation under licence as a separate dwelling? I see no need to speculate as to such cases, though I would question whether, in such circumstances, the tenant could or would say that he occupied the substitute premises as his only or principal home, so as to satisfy the tenant condition. Here, by contrast, Mr Langridge was deliberately excluded from 7 Mappleton Drive in the face of his application for an injunction to be allowed back in. The case does not seem to me to be comparable with a very short-term emergency situation, given in Mrs Henderson's examples.
38. As it seems to me, the question one has to come back to, assuming that this was a licence rather than a tenancy, is whether the licence gave Mr Langridge the right to occupy 30 Willoughby Court as a separate dwelling. Despite Mrs Henderson's steadfast arguments to the contrary, and despite the reasoning of HHJ O'Rorke and Calvert-Smith J, it seems to me that the answer has to be that it did, and that therefore section 79(3) applied to it and gave Mr Langridge, despite the express declaration to the contrary, a secure tenancy. The subject matter of the agreement is a dwelling house. Mr Langridge had exclusive possession of it, with no element of sharing. It was his only home at all material times, given that he was being excluded from 7 Mappleton Drive. Neither under this nor under any other agreement did he have any right to use any other accommodation, except that in 7 Mappleton Drive from which he was being excluded, an exclusion which, in the circumstances, was authorised on a temporary basis by HHJ Inglis's order. The fact that it was envisaged and intended that, after some five weeks or so, he would either move back into 7 Mappleton Drive or have to leave does not, in my judgment, alter the correct assessment of the position at the start of the agreement.
39. I have some sympathy for the council which finds itself having conferred a degree of security of tenure on Mr Langridge, which he did not, in practice, enjoy in respect of 7 Mappleton Drive, because of the pending possession proceedings, contrary to the expressed intentions of both parties, and of having done so as a result of providing temporary substitute accommodation for him, which may well very well have been in the best interests of all concerned as a short term solution. If they had not sought to resist the injunction and had been willing to face the risks involved in allowing the return to Mr Langridge, on his request, of the keys to 7 Mappleton Drive, the present issue would not have arisen, though it may very well be that other problems would have occurred as a result of his return pending the trial. Presumably, that apart, the council would still have got a possession order of 7 Mappleton Drive as it did, though possibly subject to some postponement or suspension, and would sooner or later have secured possession of that property and would therefore not find itself with Mr Langridge as its secure tenant. Nevertheless, I see no answer to Mr Colville's contention that the licence agreement gave Mr Langridge exclusive possession of a dwelling house for use as a separate dwelling. It was his sole dwelling and residence at all material times, despite his wish to return to 7 Mappleton Drive. There was no question of shared use of any premises or of the agreement being supplemental, so that the accommodation was only part of his home, as in Tyler. In my judgment, for these reasons, the licence did fall within section 79(3) and I would allow the appeal.

Sir Peter Gibson:

40. Although we are differing from the decisions of both the county court and of the High Court, there is nothing which I would wish to add to the judgment of my Lord, with which I am in entire agreement.

Sir Mark Potter P:

41. I also agree.

Order: Appeal allowed