ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Dight
Claim No: OCL10182
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
MR JUSTICE WARREN
| HERTSMERE BOROUGH COUNCIL
|- and -
|CAROLINE ANNE LOVAT
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Mr Anthony Radevsky (instructed by Pemberton Greenish LLP) for the Respondent
Hearing date: 4 October 2011
Crown Copyright ©
Lord Justice Rimer:
'1AA. - Additional right to enfranchisement only in case of houses whose rent exceeds applicable limit under section 4
(1) Where –
(a) section 1(1) above would apply in the case of the tenant of a house but for the fact that the tenancy is not a tenancy at a low rent; and
(b) the tenancy … is not an excluded tenancy,
this Part of this Act shall have effect to confer on the tenant the same right to acquire the freehold of the house and premises as would be conferred by section 1(1) above as if it were a tenancy at a low rent.
(3) A tenancy is an excluded tenancy for the purposes of subsection (1) above if –
(a) the house which the tenant occupies under the tenancy is in an area designated for the purposes of this provision as a rural area by order made by the Secretary of State,
(b) the freehold of that house is owned together with adjoining land which is not occupied for residential purposes and has been owned together with such land since 1st April 1997 (the date on which section 106 of the Housing Act 1996 came into force), and
(c) the tenancy either –
(i) was granted on or before that date, or
(ii) was granted after that date, but on or before the coming into force of section 141 of the Commonhold and Leasehold Reform Act 2002, for a term of years certain not exceeding thirty-five years.
(5) The power to make an order under subsection (3) shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. …'
The judge's judgment
'I accept that the modern approach to construction does not involve a consideration of primary and secondary meanings but in my judgment the starting point where a word has a clear meaning is that it is to be taken to have that meaning when used by draftsmen of legal documents or statutes unless the context suggests otherwise.'
He could, however, find nothing in the context of the legislation constraining him to give 'adjoining' a meaning other than its usual meaning. He could also find no basis for interpreting 'house' in section 1AA(3) as meaning other than a 'house' as defined in the legislation. The outcome was that he accepted that Hertsmere's rural land does not adjoin Mrs Lovat's house and that her tenancy of her house was therefore not an 'excluded tenancy'.
'This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v. Wrotham Park Settled Estates  AC 105-106. In the present case these three conditions are fulfilled.'
'The word "adjoining" in the present case is not a word which in its ordinary acceptation has more than one meaning, and that meaning is that it in fact adjoins or is contiguous to, in the ordinary acceptation of that word. The fact that a word is not infrequently misused does not alter either its strict and primary acceptation, or its grammatical and ordinary sense, or its primary acceptation, which are words intended in my opinion to express the same idea. Thus, in the present case, to give the word "adjoining" the meaning of "in the neighbourhood of" or "near to" is utterly inconsistent with the strict and primary acceptation of the word, in whatever form of words you express that idea.'
'… we have not here to decide the abstract meaning of the word "adjoining" apart from the context. We are entitled and bound to bear in mind the surrounding circumstances, and then it is our duty to construe the words as a whole. We are entitled (among other things) to consider the object of the covenant. This is pointed out by Bowen LJ in his judgment in Lightbound v. Higher Local Board (1885) 16 QBD 577. He was there dealing with a section of an Act of Parliament, and he lays down that there is a broad rule of construction "that in construing the words you must look at the subject-matter of the section and see what is its scope and object." This rule of construction is applicable also to the construction of contractual documents, and, applying it to the present case it is evident that the object of this clause has nothing to do with physical contact between the houses. … the language of the context is absolutely inapt to express such a restricted meaning as the defendant suggests [which he then elaborated]. …
It is pressed upon us that in thus deciding we are departing from the rule of construction laid down by Lord Wensleydale in his opinion in Grey v. Pearson 6 HLC 61, 106, that "in construing wills and indeed statutes and all written instruments the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no farther." In my opinion we are in no way departing from the rule of construction so laid down. The learned Lord is there dealing with the case of giving to words a meaning which they do not properly bear. But it is unquestionable (and indeed it was conceded in the argument on behalf of the defendant) that the word "adjoining" is normally used in the sense of "near to" as well as "in contact with." Where a word has two proper and recognised meanings Lord Wensleydale's canon of construction must be greatly modified, even if it applies at all. … The meaning of words is fixed by user alone, and, where the user of a word in more than one sense is established, the question in which sense it is used in a particular passage must be decided by the context and the surrounding circumstances, and no one meaning can be treated as having such paramount claims that it is to be adopted in preference to any other, unless its adoption would lead to absurdity or inconsistency.'
'There are few words, if indeed there be any, which bear a meaning so exact as that the reader can disregard the surrounding circumstances and the context in ascertaining the sense in which the word is employed. Not even words expressive of number escape the ordeal. There are trades in which a dozen does not mean twelve nor a hundred five score.
There are words upon whose primary meaning there is no room for doubt. I may instance again the word "dozen." But this is not true of all words. Many are not fixed, but of flexible, meaning. Such a word may have many primary meanings. It is for the reader, looking at the context, to say in which of those meanings it is employed. In making that determination, he must look at the subject-matter dealt with by the language in which the word occurs and see what is the scope and object of the instrument in which he finds it. …
There are three words, "adjoining," "adjacent," and "contiguous," which lie not far apart in the meaning which they convey. But of no one of them can its meaning be stated with exactitude and without exception. As to "adjoining," the expression "next adjoining" or "immediately adjoining" is common and legitimate. This expression at once conveys that two things may adjoin which are not next to each other. "Adjacent" conveys that which lies "near to" rather than that which lies "next to." "Contiguous" is perhaps of all three the least exact. Any one of the three may by its context be shewn to convey "neighbouring" without the necessity of physical contact.'
'In my judgment if one did not give the wider meaning to the word "adjoining" there would be many cases which would amount to anomalies or total absurdities.'
He then gave two examples.
Mr Justice Warren :
Lord Justice Longmore :