Coker, R (on the application of) v London Rent Assessment Panel & Anor

A variation of an existing tenancy ordinarily does not amount to a surrender and regrant. The question depends on the nature of the variation and whether the parties’ arrangements can operate without creating a new legal estate. An increase in the premises or the length of the term will normally require a surrender and regrant. Changes to rent or covenants, alone or together, will usually not do so. In the absence of those features, a surrender remains possible only exceptionally. On judicial review of a rent assessment panel’s decision, a challenge to the panel’s evaluation of rental comparables must satisfy the high threshold of irrationality or other unlawfulness.

The claimant was the tenant of a flat under an assured tenancy. Following a Tomlin Order, the landlord served a notice under section 13 of the Housing Act 1988 increasing the rent. The claimant referred the notice to the London Rent Assessment Panel under section 14 of that Act.

The Panel assessed the market rent at £1,120 per month and rejected the argument that the Tomlin Order had created a new tenancy by surrender and regrant. The claimant appealed under section 11 of the Tribunal and Inquiries Act 1992, arguing that the Panel lacked jurisdiction to determine the rent and had acted unlawfully in evaluating comparable evidence. The central issues were whether the agreed variations implied a surrender and regrant, and whether the Panel’s assessment was legally unreasonable.

1. Appeal dismissed. The Panel had jurisdiction to determine the rent, and its assessment was not unlawful.
2. The court accepted the statement of law in Woodfall, supported by Friends Provident Life Office v British Railways Board [1996] 1 AER 336. Whether a variation operates as a surrender and regrant depends on the nature of the variation. If the variation cannot take effect without granting a new lease, a surrender and regrant is implied.
3. An increase in the premises demised or in the length of the term changes the legal estate and ordinarily produces that result. Without either feature, there will usually be no surrender. A change in rent or alterations to covenants, whether separately or cumulatively, will not ordinarily amount to a surrender and regrant, although exceptional cases remain possible.
4. The Tomlin Order did not create a new tenancy. It dealt with insurance rent, the passing rent and outstanding repairs. Its only relevant variations were the landlord’s agreement not to enforce the insurance-rent covenant and the modification of the covenant against alterations. Those changes did not come close, individually or cumulatively, to implying a surrender and regrant. The parties continued to hold the same assured tenancy, and the repairing obligations under sections 11 and 12 of the Landlord and Tenant Act 1985 were already applicable.
5. The challenge to the Panel’s preference for evidence concerning first-floor flats was wholly without merit. The conclusion did not approach being Wednesbury unreasonable or otherwise unlawful.

The claimant was ordered to pay the second defendant’s costs, subject to detailed assessment and the statutory public-funding provisions.

The judgment records an appeal under section 11 of the Tribunal and Inquiries Act 1992 against the decision of the London Rent Assessment Panel dated 24 February 2005, with extended reasons dated 6 August 2005. The Panel’s decision was upheld.