West v London Borough of Newham & Anor

In a statutory right-to-buy dispute, the district valuer determines the value of the dwelling-house, not the extent of the property comprised in the tenancy. A county court retains jurisdiction to resolve that extent question under the Housing Act 1985, subject to the statutory allocation of valuation issues. The meaning of a parcel clause in a tenancy agreement is determined by construing the agreement with relevant extrinsic evidence. The court must assess the evidence both separately and collectively. A finding that a boundary fence existed does not, by itself, establish which tenancy included the land. Physical access, intended use, the agreement, plans, correspondence, use and any landlord policy may all be relevant.

A secure tenant exercised the right to buy under the Housing Act 1985. The district valuer included a narrow garden strip adjoining the lower maisonette in the valuation. The landlord contended that the strip was outside the tenant’s tenancy.

The Bow County Court, following a trial before His Honour Judge Bradbury, declared that the strip was not included in the tenancy and dismissed the tenant’s claim for damages. On appeal, the tenant argued that the district valuer’s valuation deprived the county court of jurisdiction to determine the issue. She also argued that the trial judge had misdirected himself when interpreting the tenancy agreement. The central questions concerned the statutory division between valuation and property extent, and the proper construction of the parcel clause.

Lady Justice Arden gave the judgment, with Lord Justice Mummery and Sir Peter Gibson agreeing. The appeal was allowed in part. The jurisdiction issue failed, but the declaration on the extent of the tenancy was set aside and replaced by a declaration that the privacy strip formed part of the tenancy of 74 Hameway.

1. Jurisdiction. The Housing Act 1985 does not make the district valuer’s valuation final or conclusive as to the extent of the property subject to the right to buy. Sections 128 and 138 show that the district valuer’s function is to determine value. It is not to determine the boundaries of the property to be leased.
2. A dispute about the extent of the property is a “question arising under this Part” within section 181. The county court therefore had jurisdiction to determine it, including by declaration, subject to the statutory allocation of valuation questions. The court also noted that, if construction were in doubt, Article 6 of the European Convention on Human Rights required an interpretation preserving access to a court for disputes concerning civil rights. The principle was supported by Golder v United Kingdom [1979-1981] EHRR 524.
3. Construction of the tenancy. The dispute concerned the meaning of the parcel clause in the tenancy agreement, rather than adverse possession or proprietary estoppel. As explained by reference to St Edmundsbury & Ipswich Board of Finance v Clark no.2 [1973] 1 WLR 1572, affirmed [1975] 1 WLR 468, the court could consider relevant extrinsic evidence. The evidence had to be examined both severally and collectively. The trial judge erred by treating the existence of the privacy fence as effectively decisive. The court considered the absence of access arrangements and use restrictions, the physical layout, evidence of use and maintenance, correspondence, plans and the absence of any landlord policy. It left Miss West’s subsequent conduct out of account because its admissibility had not been fully argued. The evidence, viewed as a whole, made it more likely that the strip was included in the upper maisonette’s tenancy, with the fence representing a notional privacy boundary.

• Bow County Court: His Honour Judge Bradbury declared in June 2005 that the privacy strip was not included in the tenancy, dismissed the claim for damages and made consequential orders.
• Court of Appeal (Civil Division): The jurisdiction issue was dismissed. The declaration on the extent of the tenancy was set aside, and the court declared that the privacy strip was included in the tenancy of 74 Hameway.