Lord Justice McCombe:
(A) Introduction
1.
This is an appeal by Grosvenor (Mayfair) Estate and Grosvenor West End
Properties (which I will call together “Grosvenor”, save where the difference
matters), brought with permission granted by David Richards LJ by order of 30
March 2016, from an order of 18 December 2015 of HH Judge Gerald made in the
County Court at Central London. By his order Judge Gerald declared that the property
known as 41 Upper Grosvenor Street (“41 UGS”) and 41 Reeves Mews, London W1
(“the Mews”) ( together “the Property”) comprised a house and premises within
the meaning of s.2 of the Leasehold Reform Act 1967 and that the respondent,
Merix International Ventures Limited (“Merix”) was entitled to acquire the
freehold and reversionary interests pursuant to a notice served on 23 December
2013 (“the relevant date”) under Part 1 of the 1967 Act.
2.
This is yet another case raising the question whether a particular
building is or is not “a house” within the partial definition of that term in
s.2 of the 1967 Act. If the Property was a house at the relevant date Merix is
entitled to enfranchise, if not, not.
3.
It will be necessary to set out a rather more detailed factual summary
below. However, in short, this case involves a large London townhouse (here
with an annexed mews building) which, following residential use until shortly
after the Second World War, was used at times partially for office purposes
with residential accommodation on an upper floor or upper floors and in the
Mews. The unusual feature, compared with other cases of this genre, is that the
Property here was left totally unused for 13 years prior to the relevant date.
Merix says that on that date the building was a house, admittedly with traces
of former office user, but nonetheless a house. Grosvenor says that the
building was a disused office building with some ancillary residential
accommodation and, therefore, not a house. The judge decided it was a house;
Grosvenor argues that he was wrong to do so.
4.
I think it is safe to say that none of the very experienced counsel who
appeared before us, deploying their highly impressive arguments, could say that
the present conundrum is precisely resolved by any of the many previously
decided cases, concerning the definition of “a house” in s.2(1) of the Act, in
the House of Lords/ Supreme Court or in this court.
(B)
Background Facts
5.
In the court below and before us there were some small differences
between the parties as to the factual background to the case but, to my mind,
the points of dispute made little difference to the merits of the important
arguments on either side. The helpful agreed chronology used before Judge Gerald
and on the appeal, with a few additions, together with the judge’s findings,
gives a sufficient overview of the history.
6.
The chronology recites the construction of the Property between 1912 and
1914 and the grant of the first lease of it by Grosvenor for a term of 90 years
from 1912. It summarises the residential occupation up to 1946, including
residential occupation in the very last years of the War by the Envoy and
Minister Plenipotentiary and by the Ambassadors of Yugoslavia and, finally and
briefly, by the deposed King Peter II of that country. The chronology then
continues as follows:
“1946-1948 - Property
unoccupied.
1948-1961 - Use
of the lower floors of 41 Upper Grosvenor Street as offices by miscellaneous
companies. Use of 41 Reeves Mews as a residential flat over a garage.
The Claimant’s case is that the
third and fourth floors of 41 Upper Grosvenor Street were used as
flats/maisonette during this period. This use of the third and fourth floors
during this period is not admitted by the Defendants.
25th
March 1958- The 1914 Lease assigned to Covent Garden
Properties Limited.
1962-1963 - Property
unoccupied.
1963-1969 - Use
of 41 Upper Grosvenor Street as offices. Part office and part residential use
of 41 Reeves Mews, with garage.
8th
June 1964 - 1914 Lease surrendered. Lease of the
Property granted by Grosvenor to Covent Garden Properties Company Limited for a
term of 44 years from 1958 (“the 1964 Lease”).
1969-1987 - Property
unoccupied.
1981-1982 - Refurbishment
of the Property. Two flats created on the third and fourth floors of 41
Upper Grosvenor Street. Three flats created in 41 Reeves Mews, together with
a garage.
21st
October 1987 - Grant of underlease of the Property to J.
Henry Schroder Wagg & Co. (“the Underlease”)
1987-1995 - Office
use of lower four floors of 41 Upper Grosvenor Street. Residential use of 41
Reeves Mews.
The Claimant’s case is that there
was residential use of the third and fourth floors of 41 Upper Grosvenor Street
during this period. This use of the third and fourth floors during this
period is not admitted by the Defendants..
1996-2000 - Office
use of lower five floors of 41 Upper Grosvenor Street. Part residential use and
part staff use of fourth floor of 41 Upper Grosvenor Street. Residential use of
41 Reeves Mews.
1st
August 1996 - Lease of the Property granted by Grosvenor
(Mayfair) Estate to European Prime Properties SA for a term of 125 years from
24th June 1996 (“the Lease”). The 1964 Lease is assumed to have been
surrendered.
28th January 1999 - Deed of
variation of the Lease.
27th December 2000 - Surrender of
the Underlease.
27th
December 2000 - The occupier of the Property, Schroder Asseily
and Company, vacates the Property.
December 2000-present day - Property unoccupied.”
7.
Mr Gaunt QC for Grosvenor was anxious to bring to our attention the
agreed features of description of the Property from the historical experts,
which can be found principally in paragraph 1.33 of their joint statement as
follows:
“1.33 From
our respective inspections of the building, we are agreed that it has the
following characteristics and appearance:
1.33.1 The
external appearance of the property has been little altered and externally it
has retained the character and appearance of an Edwardian town house with its
coachhouse or motor house and stabling at the rear.
1.33.2 Internally,
the basic plan form on the principal floors (ground and first) has been
retained, but the basement and second to fourth floors have been subdivided
with modern partitions. The ornate main staircase and secondary staircase
remain, although part of the balustrading of the main staircase has apparently
been replaced following its theft in c1975.
1.33.3 The
basement, which extends beneath 41 Reeves Mews, has retained some historic
features, but there are also modern fire doors with vision panels, partitions,
suspended ceilings, and modern sanitary fittings and a server room from its use
as offices.
1.33.4 The
ground floor has retained its original proportions, plan form and most of its
ornate decoration apart from the chimneypieces which have been stolen. There is
a reception desk in the main entrance hall and other indicative features of
office use include fire doors set within original architraves, some modern
lighting, alterations to some walls and the floors to run services, cabling and
sockets, and modern sanitary fittings.
1.33.5 The
first floor has likewise retained its original proportions and plan form
including one particularly grand room stretching from front to rear. Most of
the original decoration has likewise survived, although damaged in places, and
minus some chimneypieces. As on the ground floor, there have been alterations
for office use including fire doors in original architraves, sockets, suspended
and emergency lighting, alterations to the floors for cable runs, and modern
sanitary fittings which appear suited to office use. In addition, there are
some partitions, which, however, stop short of the ceiling and do not interfere
with its decorative features.
1.33.6 The
second floor has for the most part retained its original proportions and plan
form and some decorative features. There have been alterations for office use,
including the insertion of some partitions, fire doors, sockets, and lighting,
alterations to the floors for cable runs, and modern toilets in the closet
wing.
1.33.7 The
third floor also retains its original proportions and some original features,
although its plan form has been altered to create a residential flat. There are
some indications of office use in the form of cable runs and floor sockets and
partitions, as well as wc’s suited to office use.
1.33.8 The
fourth floor has been altered to create a residential flat, although certain
fixtures and fittings such as lighting, partitions and viewing panels in doors
appear more suited to office accommodation.
1.33.9 The
interior of 41 reeves Mews, above basement level, has been altered to create a
modern garage and three flats.”
8.
It is to be noted that it is the lease of 1 August 1996, of which in
2007 Merix became the registered proprietor, which gives such right as there
may be in Merix to enfranchise and to acquire the superior interest(s).
9.
To the bare bones of the chronology, Mr Gaunt added in argument certain
additional factual features which were, so far as they went, largely
uncontentious.
10.
The 1996 Lease contained a covenant by the tenant (a) to use 41 UGS only
as business or professional offices on the basement, ground, first and second
floors and as to the third and fourth floors as not more than two flats; (b) to
use the Mews only as not more than three flats with private garage
accommodation on the ground floor; and (c) not to use the flats within the
premises otherwise than as residential accommodation for directors or senior
employees of the company or companies occupying that part of 41 UGS used as
offices. The requirement that the residential space be used by directors and
senior employees of the office users was subsequently removed in 1999 and 2006.
11.
The 1987 underlease in favour of J. Schroder Wagg & Co. Limited
(“Schroders”), expiring in March 2002, required the undertenant to use the
basement, ground, first and second floors of 41 UGS for business or
professional use and the third and fourth floors as a single private flat held
under a service occupancy licence.
12.
The Deed of Variation of 1999, mentioned in the chronology, consented to
the assignment of the term under the 1996 Lease and varied the user clause to
permit the third floor to be used as offices.
13.
Mr Gaunt referred us to a description of the Property in the following
terms:
“41 Upper Grosvenor Street comprises an office building of
954.74 square metres (10,277 square feet) arranged on lower ground, ground and
four upper floors. 41 Reeves Mews provides three self-contained flats, on
ground and first floors, and parking spaces for 2/3 cars.”
The description appears in a
document prepared by agents, Healey & Baker, in early 1998, who are said (in
Grosvenor’s Defence in the proceedings) to have been acting for the tenant: sed
quaere, as the initial draft before us (AB2/39/395 et seq.) appears to have
been prepared for Grosvenor Estate Holdings (Loc. Cit. pp. 393-4). However,
nothing seems to turn on this discrepancy.
14.
Mr Gaunt also invited us to note that the description of the third
floor, in the same document, described the third floor as offices. One of the
peripheral factual disputes, to which I have referred above, has been as to the
extent to which that floor was used as offices and at what date or dates.
Subject to this debate, for my part, I propose to take as sufficiently accurate
the judge’s, no doubt “broad brush”, assessment that the upper two storeys and
the Mews, amounting to 33% of the whole (and 22% if the third floor were to be
excluded), were adapted or partially adapted for living accommodation. This
ignores the even more peripheral issue of the effect of excluding from those
floor area estimates certain elements of “communal” space. Counsel were agreed
that “playing the numbers game” in these respects did not advance the arguments
significantly further.
(C)
The Judge’s Findings of Fact
15.
Having looked at the history of the building and its description in
outline, it is necessary to record the judge’s findings of fact as to the
occupation and user of the Property in the years following the Second World
War. What follows is a summary of the findings to be found at paragraphs 9 to
23 of the judgment. (Before proceeding further, I would wish to pay tribute to
the judge’s extremely careful judgment, which addressed fully the material
issues of fact and law in a most helpful way.)
16.
The judge found that following a period of two years’ disuse, works were
carried out to enable occupation of the basement, ground, first and second
floors as offices and the occupation of the upper two floors as a maisonette.
He found the first floor of the Mews was adapted to enable residential user. He
also found that the parts so adapted were occupied for office and residential
use and were used accordingly until 1961. There was then a period of 2 years
when the building was unoccupied. Between 1961 and 1963 the whole of 41 UGS was
used as offices. From 1969, the Property once more fell vacant and remained so
until 1987. In 1964, the 1914 lease was surrendered and a new 44 year lease was
granted which required 41 UGS to be used as offices until 1973 and then as a
single private dwelling, with the Mews to be occupied as offices with a garage,
and with a flat at the front of the first floor.
17.
The judge’s findings continued by recording some refurbishment in
1980/81 to provide office accommodation on the basement, ground, first and
second floors of 41 UGS, part of the Mews basement with two (originally four)
flats on the third and fourth floors of 41 UGS and three flats in the Mews.
This was permitted by a planning permission in 1978 and by deed of variation to
the 1964 lease, which required the residential parts to be occupied by
directors or senior employees of the office occupant of 41 UGS.
18.
Passing over a dispute between the parties as to the planning position
in this period, recorded by the judge in paragraphs 13 and 14 of the judgment,
which he found unnecessary to resolve, the judge found that the Property
remained unoccupied until the grant of the underlease to Schroders in 1987.
Schroders took up occupation in October 1987 and remained there until their
surrender of the underlease and vacation of the Property on 23 December 2000.
19.
The underlease to Schroders required the basement, ground, first and
second floors of 41 UGS to be used for business and professional offices and
the third and fourth floors to be used as a single private flat, with the Mews
to be used as three self-contained flats. It was, said the judge, common ground
that from 1987 to 2000 Schroders occupied the basement, ground, first and
second floors of 41 UGS and part of the Mews as offices and the rest of the
Mews as three flats with garage. Again it was common ground that from 1996 to
2000 the third floor was occupied as offices and the fourth floor was partly
residential and partly for staff use.
20.
There was a dispute before the judge as to whether the third floor was “designed
or adapted for living in” and whether the third and fourth floors were occupied
residentially between 1987 and 1995. The only oral evidence on the subject was
from the experts who sought to draw inferences about the user in this period
from various documents and plans.
21.
The judge noted that the main documentary evidence on this issue was a
series of floor plans, dated at around the time that Schroders took up
occupation, these contained typed descriptions of rooms’ actual or intended
user, but with manuscript amendments. A problem arose because five of the nine
plans (relating to ground, first and second floors), in Grosvenor’s records,
were annexed to a letter of 4 March 1988 referring to the plans as “showing tenants’
alterations, but understand that these are minor and insignificant…”. The other
four plans were plans of the basement, third and fourth floors were filed
separately with a letter of 6 February 1997.
22.
The judge’s conclusion on this dispute (paragraph 19 of the judgment)
was this:
“19. It is very difficult to draw any firm conclusions from
the 1987 plans (which bear different handwriting) or the related documentation to
which the experts were taken in cross-examination. On balance, however, I take
the view, and hold, that the only alterations carried out by March 1988 were to
the ground, first and second floors and consisted of essentially minor works
such as provision of a hospitality cupboard on the ground floor and
partitioning one room on the first and two on the second floors. It was not
until some time later that the third and fourth floors had any adjustments for
office user as shown by the partitioning of some of those rooms and the
conversion of the basement staff room into a communications room as shown by
the 1987 plans filed with the 1997 Alphameric letter, from which I infer and
find those handwritten annotations and marking were added shortly before the
date of the letter.”
Referring to other documents, the
judge found in the next paragraph that it was difficult to tell when the third
and fourth floors started to be used differently, but went on to find this:
“21. I therefore find that residential occupation of the
third and fourth floors (which had been converted into self-contained flats in 1980/81)
continued until sometime in 1996/97 when some of the rooms on the third and
fourth floors were partitioned but that the kitchen remained in the third floor
until removed sometime later. …
… The inference is that from 1997 or thereabouts onwards, the
fourth floor was mixed user but predominantly associated with office user of
the main part of the building save that it could readily be used as a
self-contained flat by closing off various doors.”
23.
For my part, notwithstanding Mr Gaunt’s challenge to the judge’s
findings as to the user of the third floor between 1987 and 1997 before us, I
find it to be quite impossible to disturb this finding of fact by the judge.
24.
I follow Mr Gaunt’s argument derived from the nine plans, which he
submitted had been separated by misfiling in his clients’ records. However,
there was no evidence of any such misfiling and the judge had a far fuller
opportunity to analyse the various documents, of which these plans were only a
part. He also heard the evidence of the experts as to the inferences that they
drew from the documentation as a whole, some of which we were not shown at all
during the hearing of the appeal. The submissions advanced do not, I think,
justify us in departing from the judge’s findings of fact in this area, based
as they were on a series of documentary materials, of which we have seen only
snapshots, and on oral evidence which we have neither heard nor seen
transcribed.
25.
The judge recorded that it was common ground that at the relevant date
the Property had been unoccupied for 13 years and that nothing had been done to
it during that period. Its physical state, on the relevant date and on the date
of the judge’s site visit during the trial, remained essentially the same as
when Schroders vacated in December 2000, with no doubt some continuing
dilapidation.
26.
The judge proceeded to describe, carefully and in detail, the physical
characteristics of the Property, in its various parts, as he found it to be on
the date of the site visit: see paragraphs 25 to 33 of the judgment.
27.
I do not think that much can be added to that description for present
purposes that is not supplied by his conclusion (in paragraph 65 of the
judgment) as to the impression that the Property created on him. Whatever the
correctness, or otherwise, of his conclusion for the purposes of the statutory
definition, the judge’s impression of the Property was this:
“65. I should say that I found Mr Johnson’s submission that
the building was and remains a Mayfair townhouse now accommodating a set of
flats with traces of prior office use attractive. What was striking during the
site visit was just how evident the residential character, identity and
functionality of the building remained externally and internally. There really
was no doubt that internally the whole building was on the Relevant Date
designed and laid out for living, with grand rooms on the ground, first and
second floors and sleeping and wider living accommodation on the third and
fourth floors and in the mews, readily accessible internally at basement and
ground floor levels and housing the plant room which served the main part and
also the garage. The only thing which might have altered that conclusion was
the presence of some old office light fittings, cabling, sockets, discrete
toilets, partitioning and such like. But all of that was essentially
superficial, pretty ancient and, as Mr Johnson submitted, amounted to no more
than mere evidence of past office user which did not detract from the quite
overwhelming residential character, identity and functionality of a still grand
Mayfair townhouse.”
As I have said, the judge found the
Property to be “a house” for the purposes of s.2(1) of the Act.
(D)
The Law
28.
Section 1 of the 1967 Act confers upon a tenant of “a leasehold house”,
in certain circumstances, the right to acquire on fair terms the freehold or an
extended lease of the house and premises. Section 2(1) of the Act then provides
as follows:
“(1) For purposes of this Part of this Act, “house” includes
any building designed or adapted for living in and reasonably so called,
notwithstanding that the building is not structurally detached, or was or is
not solely designed or adapted for living in, or is divided horizontally into
flats or maisonettes; and –
(a) where a building is divided
horizontally, the flats or other units into which it is so divided are not
separate “houses”, though the buildings as a whole may be; and
(b) where a building is divided
vertically the building as a whole is not a “house” though any of the units
into which it is divided may be.”
29.
As a matter of language, that definition is only inclusive of
properties so described and leaves open the possibility of other types of
property falling within the description. However, Mr Radevsky, junior counsel
for Grosvenor, pointed us to the following passage in the speech of Lord Scott
of Foscote in the House of Lords in Malekshad v Howard de Walden Estates
Ltd. [2003] 1 AC 1013 at 1036D-E:
“Before seeking to apply these statutory provisions to the
facts of this case, it is convenient to make some observations about their
meaning and effect. First, the definition in subsection (1), before one comes
to the paragraph (a) and paragraph (b) qualifications, is expressed as an
inclusive definition— "includes any building” etc. It is not expressed to
be a comprehensive one. But I think it should be treated as comprehensive. If a
building is not designed or adapted for living in or if it cannot reasonably be
called a "house", the building cannot, in my opinion, be a
"house" for 1967 Act purposes. Nor can a dwelling which is not a
building at all be a "house", for example, a caravan (cf R v Rent
Officer of Nottinghamshire Registration Area, Ex p Allen [1985] 2 EGLR 153)
or a houseboat (cf Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR
1941).”
30.
Before considering the authorities on this deceptively simple statutory
definition, it is helpful to have in mind the substance of the parties’
respective cases to see what one is looking for in the previous decisions.
31.
As the judge records, at paragraph 38 of the judgment, it was common
ground before him that the Property comprised a “building” which was “designed
or adapted for living in” in whole or in part at the relevant date although
precisely what part or parts were so designed or adapted was in issue. That
common ground remained solid for the purposes of the appeal. The thrust of the
appeal, therefore, centred upon whether the Property is “a house…reasonably so
called”.
32.
Merix’s case is that at the relevant date the whole Property was
designed for living in and could reasonably be called a house. Alternatively,
this was a house of mixed adaptation, but remained partly adapted for living in
and a house reasonably so called.
33.
For Grosvenor, it is argued that the design or adaptation for living in
was confined to the fourth floor or as the judge found (and, as I have said, I
would not reverse) the third and fourth floors (and the Mews) and was ancillary
to the rest of the Property, which was designed or adapted for office use and
had been so used. As there was no active and settled use at the relevant day,
it was argued for Grosvenor that the last use of the Property was determinative
of whether this was a house reasonably so called. As the judge said, “…Mr Gaunt
submitted that the clock had to be turned back to 23rd December
2000”. Mr Gaunt argued that on 24 December 2000 this building was a disused
office building, with some ancillary residential accommodation and, absent an
established change of use, it remained as such at the relevant date thirteen
years later.
34.
It seems to me that we can focus attention in this case on four previous
decisions: Tandon v Trustees of Spurgeons Homes [1982] AC 755 (“Tandon”);
Boss Holdings Ltd. v Grosvenor West End Properties Limited [2008] 1 WLR 289 (“Boss”); Prospect Estates Ltd. v Grosvenor Estate Belgravia
[2009] 1 WLR 1313 (“Prospect”) and Hosebay Ltd. v Day (& a linked
case) [2012] 1 WLR 2884 (“Hosebay”).
35.
In Tandon the House of Lords was concerned with premises
consisting of a shop with living accommodation above. They were one of a row of
four similar premises forming a shopping parade. Judge Coplestone-Boughey, in
the Wandsworth County Court, found that the premises were a “house” within the
definition. By a majority, this court reversed him. The House, also by a
majority, reversed that decision and restored the judge’s order.
36.
In the minority, Lord Wilberforce said this:
“There must be many thousands of mixed units in the country,
varying greatly in character. Many of them may have started life as an ordinary
house on several floors, and later the basement and/or ground floor has been
made into a shop. Some may be at a corner, though for myself I do not
appreciate the relevance of this category; others may form one part of a
terrace. Others may have originated as a shop, and later some portion may have
been made into living accommodation. Others, again, may have been built as
mixed units, of which part has been designed and constructed for use as a shop,
part as living accommodation. It is the user at the date of the application to
enfranchise that matters, but the nature of the building, and to some extent
its history, must be relevant to a determination of its character.
I do not think that it is contended that all mixed
units are houses reasonably so called: if it were I should reject the
contention: there is no warrant for it in the Act. Nor can I agree that there
is any presumption that mixed premises are to be regarded as a house. The Act
extends to dwellings: it does not extend to shops: there is no warrant for
forcing one category into the other. Nor do I think it our task to prescribe a
simple formula which will solve the judges’ problem for them. Certainty can
always be purchased for the price of injustice, and I know of no rule which
prevents different cases from being differently decided. To suppose that
judges, if left without firm guide-lines, will give anomalous decisions seems
to me to underrate their common sense. The judge has to decide each case using
his knowledge and applying the Act, and unless he applies a wrong test the
decision is decisive.”
His Lordship considered that, if
the judge had not found himself to be bound to hold that these premises were a
house following the decision in Lake v Bennett [1970] 1 QB 663, he could
only have come to one conclusion which was,
“[W]hether one accepts the proportion of 75-25 per cent. or
that of 50-50 per cent.-namely, that it is a mixed unit consisting in part of
shop and in part of a dwelling. That is not a house within the Act; it is not
the policy of the Act that the tenant should be able compulsorily to acquire
it.”
37.
Lord Fraser of Tullybelton agreed with Lord Wilberforce and concluded as
follows:
“The building in question here was built and has all along
been let and used as a shop on the ground floor and as living accommodation on
the first floor. The fact that the bathroom and w.c. for the living
accommodation are on the ground floor means that the shop and the living
accommodation can only be conveniently occupied by the same family-the family
of the shopkeeper who lives above the shop. Such a building is not likely to be
reasonably called a house, and the photograph of it that we have seen shows a
shop in a row of shops.”
38.
Lords Scarman, Roskill and Bridge of Harwich disagreed. The only full
speech for the majority was given by Lord Roskill.
39.
Lord Roskill agreed with three propositions which were common ground
between counsel: first, the question of whether a property was a house or not
was a mixed question of fact and law; secondly, if the premises might be called
something other than a “house” that fact did not prevent them from being a
“house…reasonably so called”; and thirdly, premises used for mixed
residential/non-residential purposes could be a “house” depending upon the
character of the premises.
40.
Lord Roskill proceeded, after discussing Lake v Bennett
(supra) to this conclusion:
“The purpose of these words in the definition is clear.
Tenants who live over the shop are not to be denied the right conferred by the
Act, whether they themselves trade from the shop or not, merely because the
building in which they work and live accommodates the two uses. Such a tenant
occupies the house as his residence, even though it is also used for another
purpose.
Small corner shops and terrace shops combined with living accommodation
are to be found in almost every town and village in England and Wales. Parliament plainly intended that a tenant who occupied such premises as his
residence should have the benefit of the Act if the building could reasonably
be called a “house.” It is imperative, if the law is to be evenly and justly
administered, that there should be not only uniformity of principle in the
approach of the courts to the question but also a broad consistency in the
conclusions reached. The question must not, save within narrow limits, be
treated by the courts as a question of fact: for the variations of judicial
response could well be such as to give rise to unacceptable, indeed unjust,
differences between one case and another. This could lead to the statute being
applied to two practically identical buildings one way by one judge and another
by another—an echo of equity and the length of the Chancellor’s foot. For this
reason, the Court of Appeal’s decision in Lake v. Bennett [1970] 1 Q.B.
663 was welcome as stating a principle and confirming the question of fact to a
narrow area. I deduce from it the following propositions of law: (1) as long as
a building of mixed use can reasonably be called a house, it is within the
statutory meaning of “house,” even though it may also reasonably be called
something else; (2) it is a question of law whether it is reasonable to call a
building a “house”; (3) if the building is designed or adapted for living in,
by which, as is plain from section 1 (1) of the Act of 1967, is meant designed
or adapted for occupation as a residence, only exceptional circumstances, which
I find hard to envisage, would justify a judge in holding that it could not
reasonably be called a house. They would have to be such that nobody could
reasonably call the building a house.”
41.
Clearly, the Property in this case is far removed in “character” from
the premises in issue in Tandon. However, if the wide propositions
stated by Lord Roskill were of universal application, it seems to me that this
Property would have to be a “house” and would have to be so as matter of law,
even though Lord Roskill had accepted from counsel the agreed proposition that
the question was one of mixed law and fact.
42.
In Boss, the House of Lords was concerned with 21
Upper Grosvenor Street, in the same street as the Property in our case. It
was an older building. Lord Neuberger of Abbotsbury, giving the only speech,
described the history of the premises as follows:
“12. The property was built in the fourth decade of the 18th
century. The judge described it as “a fine looking house” consisting of a
basement, ground and four upper floors “in a grand terrace of buildings…with an
Edwardian façade added about 100 years ago”. It was built as a single private
residence, and was continuously used as such for over 200 years until 1942,
when it was occupied by the Free French Government in Exile. From about 1946 the
three upper floors were fitted out for residential use, and the three lower
floors were occupied for a dress making business. Under the lease granted in
1948, (a) the second and third floors were to be used as self-contained flat,
with the fourth floor for the occupation of servants, and (b) the lower three
floors could be used in connection with dress-making, subject to a prohibition against
any show of business being visible from the exterior.
13. The commercial use of the lower three floors continued
until about 1990, since when those floors have been vacant. The residential use
of the upper floors continued a little longer but ended well before October
2003, and quite possibly by 1995, save that a caretaker may have occupied the
top floor until about 2001. Although there was evidence as to the planning
history of the property, it quite rightly played no part in the parties’
arguments, particularly as there is no question of any of these uses being or
having been unlawful.”
43.
In that case, the difficulty was that the rooms on the upper three upper
floors, the residential part, had been stripped back to the basic structure;
most of the plaster had been hacked off to the bricks; ceilings had been
removed to reveal the joists and in some rooms the floor boards had been
removed. In contrast, some rooms had been rather less devastated. The former
commercial premises were not stripped out: doors, carpets, wiring and light
fittings seem to have been retained, at least on the ground floor.
44.
The relevant date for the purposes of the Act was 14 October 2003. At
[15], Lord Neuberger said this:
“15. The judge concluded the property was not a house within
the meaning of section 2 (1), because it was not, as at October 2003, “designed
or adapted for living in”. Had he not reached that conclusion, he said he would
have accepted that it could “reasonably [be] called” a house. The Court of
Appeal agreed. Before turning to the question of whether the property was
designed or adapted for living in, it is right to record that, in the light of
the reasoning of this House in Tandon v Trustees of Spurgeons Homes
[1982] AC 755, the judge was plainly correct to conclude that the property
could reasonably be called a house.”
The case for Grosvenor there was
that the property was not at the relevant date “designed or adapted for living
in” because it was not physically fit for immediate residential occupation: see
[16]. Lord Neuberger rejected that argument. His conclusion was (at [17]):
“17. While I accept that for present purposes one is largely
concerned with the physical state of the property, I disagree with these
conclusions. It seems to me that, as a matter of ordinary language, reinforced
by considering other provisions of the subsection, and supported by the
original terms of section 1(1), as well as by considerations of practicality
and policy, the property was, as at October 2003, “designed or adapted for living
in” within section 2(1). The fact that the property had become internally
dilapidated and incapable of beneficial occupation (without the installation of
floor boards, plastering, rewiring, replumbing and the like) does not detract
from the fact that the property was “designed…for living in”, when it was first
built, and nothing that has happened subsequently has changed that. While
internal structural works will no doubt have been carried out to the property
from time to time over the past 275 years, it seems very likely from the floor
plans that its layout, in terms of internal walls, partitions and staircases,
has not changed much since the property was built. In any event, the upper
three floors have always been laid out for residential use.”
45.
I will not repeat in detail what Lord Neuberger said as to the
grammatical construction of section 2 of the Act because in this court in
Hosebay [2010] 1 WLR 2317, at [31] (as Lord Neuberger MR) his Lordship had
“second thoughts” about that construction of the section which he considered
offered an “over-literalist” approach to the language of the section. In the
Supreme Court in that case (at [34]) Lord Carnwath, speaking for all members of
the Court, said that he had no doubt that Lord Neuberger’s “second thoughts”
were correct. However, Lord Carnwath also said that his own interpretation of
the section did not call into question the actual decision in Boss of
which he said this (at [36]):
“36. The basis of the decision, as I understand it, was that
the upper floors, which had been designed or last adapted for residential
purposes, and had not been put to any other use, had not lost their identity as
such, merely because at the material time they were disused and dilapidated. It
was enough that the building was partially “adapted for living in”, and it was
unnecessary to look beyond that: see para 25. That reasoning cannot be extended
to a building in which the residential use has not merely ceased, but has been
wholly replaced by a new, non-residential use.”
Both the properties in issue in the
Hosebay cases had active and subsisting non-residential user.
46.
The learned judge below, in the present case, considered that the
Property fell “four square within Boss” (see paragraph 59 of the
judgment). Mr Gaunt submits that he was wrong to do so.
47.
I would note, however, the conclusion of Lord Neuberger in Boss
that the judge (upheld by the Court of Appeal) had been “plainly correct” to
hold that the property could reasonably be called a house, a matter that was
not apparently challenged in the House of Lords. Further, Lord Carnwath did not
question the decision that the property had not lost its identity as being
designed and last adapted for residential purposes. “It was enough that the
building was partially “adapted for living in”, and it was unnecessary to look
beyond that (see again per Lord Carnwath at [36]). In saying this Lord Carnwath
referred expressly to Lord Neuberger’s speech in Boss at [25]] which
included the following passage:
“25. [I]t is clear from section 2(1) that, in order to be a
“house”, the property need not be “solely” adapted for living in, so it would
make no difference to the outcome of this appeal if that were the correct
analysis. The issue was, unsurprisingly, not much debated, but I incline to the
view that the original design of the property is what matters in this case. Its
original internal layout as a single residence appears to have survived
substantially unchanged throughout, the three upper floors have always been
envisaged as being for “living in”, and (perhaps less importantly) the internal
fitting out of the lower three floors has a residential character, and the
external appearance has not been altered since well before the property ceased
being used as residence in single occupation.”
48.
I think that it is also worth quoting what Lord Neuberger had said at
[24] in Boss as follows:
“24. Indeed, the layout of all six floors of the property
does not appear to have been substantially altered from its original
construction as a house in single residential occupation. It is true that it
has not been occupied for a number of years, that it has become very
dilapidated, and that three residential floors have been stripped out to the
basic structural shell (albeit that the internal walls, windows, staircases,
and joists are in place). However, none of that detracts from the point that at
least the upper three floors were and remain “designed” to be lived in, and
that the lower three floors appear to be structurally laid out substantially as
they were when the property was in single residential occupation, and, as
pointed out by my noble and learned friend, Lord Rodger of Earlsferry in
argument, they are (or, at least the ground floor is) still internally fitted
out in a way which gives a residential appearance..”
49.
That property in Upper Grosvenor Street was also in a disused state at
the relevant date. The House of Lords regarded it as “plainly correct” that it
could reasonably be called a house and they decided that it was partially
adapted for living in. The Supreme Court in Hosebay said that that was a
correct decision, notwithstanding their view that Lord Neuberger had been
correct in the Court of Appeal to have second thoughts about his “literalist”
construction of s.2.
50.
Mr Gaunt was at pains to point out that in Boss half of the
property had not been put to use other than for residential purposes, whereas
in our present case over half the Property had been adapted to office use and
(when used at all) had been used for nothing else since 1946. In comparing this
case with Boss, said Mr Gaunt, the judge “overlooked the settled use of
the office floors”, the absence of separate access to the flats and the
unlikelihood of use of the residential parts by persons unrelated to the
business elsewhere in the building. He submitted that the Boss case was
not about the concept of “house…reasonably so called”.
51.
Prospect concerned a building dating from 1850, originally built
as a house for residential use. It originally had a basement and two upper
storeys, to which third and fourth storeys had been added. From 1958 onwards,
the vast majority of the building (88.5%) had been used as offices by a number
of sub-tenants on short commercial leases. The fourth storey had been used for
residential purposes from 1965. The use of the fourth storey was confined (as
was that of the flats here under the 1996 Lease, until varied in 1999) to
occupation by a director, partner, officer or senior employee of a company,
firm or person in occupation of the remainder of the demised premises. The
remaining floors could only be used as offices. The user of the building in
this manner in its respective parts continued at the relevant date. The judge
held that the building was a house reasonably so called; this court disagreed.
52.
In allowing the landlord’s appeal in Prospect this court held
that while the concept of a house “reasonably so called” had an element of
flexibility to it, the judge had paid insufficient attention to the
non-residential user of the building, in compliance with the lease, and that
the design and unchanged appearance had played too large an element in the
judge’s decision. Mummery LJ said, with reference to Lord Roskill’s speech in Tandon:
“19. In my judgment, the judge applied Lord
Roskill's propositions without taking full account of all the relevant
circumstances. The propositions are not a statutory text and were never
intended to be understood or applied as such. The judge paid insufficient
attention to the peculiar, even exceptional (to echo Lord Roskill's language),
circumstance of prescribed and predominant office use in compliance with the
Lease. That circumstance is, in my view, the overwhelming and decisive feature
of this case.
20. The original design and the unchanged
external and internal appearance of the Building featured too prominently in
the judge's reasons. If he had given due weight to the prescriptive terms of
the Lease, the actual uses of the Building and the relative proportions of the
mixed use at the relevant date, he could only have come to one conclusion: that
it was no longer reasonable to call the Building a house within the 1967 Act.”
Goldring LJ added pithily that the
submission of counsel for the tenant could be encapsulated as follows:
“The building can reasonably be called a house although no
one can lawfully live in virtually 90% of it.”
The learned Lord Justice said, “As
it seems to me, that cannot be right.” That case, of course, was dealing with
a property in continuing commercial use, as to almost 90% of its area, on the
relevant date.
53.
Turning now to Hosebay, there were two conjoined cases before the
Supreme Court in which appeals from different judges had been heard together in
this court.
54.
In the first case (that of Hosebay Ltd.) the properties in issue were
three in number held on long leases. The three properties were in a terrace and
had been initially constructed and occupied as large houses, described in the
leases as dwelling houses, but which had been used commercially to provide
individual rooms for hire with self-catering facilities. The trial judge, Judge
Marshall QC, described the premises as “a self-catering hotel”.
55.
The second case (involving a company called Lexgorge Limited) concerned
the long lease of a property originally built as a house in a terrace of
substantial houses; it had been used for many years as a house and retained
listed building status as a “terraced house” of special architectural interest.
The tenant used the whole building as offices.
56.
In Hosebay’s case the landlord contended that the properties were neither
“designed or adapted for living in” nor were they houses “reasonably so
called”. In Lexgorge’s case, the landlord said that the building was not a
house “reasonably so called”. In Hosebay’s case, the judge decided both issues
in favour of the tenant, and in Lexgorge’s case, Judge Dight also decided the
one issue in the tenant’s favour. Their decisions were upheld in this court.
The Supreme Court disagreed and allowed the landlord’s appeals in each case.
57.
Lord Carnwath began his judgment (with whom all the other Justices
agreed) by saying,
“The Leasehold Reform Act is on its face about houses not
commercial buildings.”
Having summarised the important
changes to the legislation since 1967, in particular the restrictive elements
of residence and the exclusion of second homes which had been removed, Lord
Carnwath said that there was no evidence of any ministerial or parliamentary
intention to extend the Act more generally,
“…or in particular to confer statutory rights on lessees of
buildings used for purely non-residential purposes.”
58.
At [9], Lord Carnwath added this:
“9. The two parts of the definition are in a
sense "belt and braces": complementary and overlapping, but both
needing to be satisfied. The first looks to the identity or function of the
building based on its physical characteristics. The second ties the definition
to the primary meaning of "house" as a single residence, as opposed
to say a hostel or a block of flats; but that in turn is qualified by the
specific provision relating to houses divided horizontally. Both parts need to
be read in the context of a statute which is about houses as places to live in,
not about houses as pieces of architecture, or features in a street scene, or
names in an address book.”
59.
Lord Carnwath said of the reasoning of the single majority speech of
Lord Roskill in Tandon that it was “not without difficulty” and that the
case had to be read in its factual context. Of the three propositions stated by
Lord Roskill at the end of his speech, Lord Carnwath said that they did not
offer much assistance as such, at least beyond the facts of the Tandon
case itself. It is perhaps necessary only to quote what Lord Carnwath said of
the first proposition which was this:
“25. The first proposition was in terms
directed to a building in mixed residential and commercial use. Such a building
could plausibly be described either as a house with a shop below, or as a shop
with a dwelling above. That was enough to show that it could
"reasonably" be called a house. That proposition cannot in my view be
applied more generally. The mere fact that a building may be described as a
"house" for other purposes (for example, in the English Heritage
list) is not enough to bring it within this part of the definition..”
60.
As for the second proposition, Lord Carnwath noted the conflict between
the acceptance by Lord Roskill of counsels’ agreed position in Tandon,
that the question in issue was one of mixed fact and law, and his statement
in the second proposition that the matter was one of law only. With regard to
the third proposition, Lord Carnwath regarded it as being simply Lord Roskill’s
view as to the correct policy approach to a building of the kind before him:
see [26] and [27]. Indeed, in general, Lord Carnwath regarded the decision in Tandon
as reflecting simply a difference between the majority and the minority of
their Lordships as to the policy considerations involved in the facts of that
case: see [28].
61.
Lord Carnwath did, however, note the relative lack of weight afforded by
the majority in Tandon to the appearance of the building in deciding
whether it was a house “reasonably so called”. He noted that Lord Roskill
accepted that the appearance and history could be relevant in determining the
character of a building, but that such factors seemed to play no detectable
part in the final decision in the case. Lord Carnwath said that:
“29. The determinative points were that the
proportion of residential use, even if only 25%, was "substantial" (p
766), and that a tenant occupying such a building as his residence was within
what was perceived to be the scope of the protection intended by Parliament (p
766).”
62.
Lord Carnwath then turned to the decision in Boss and I have
already summarised his conclusions on the case. As for the construction of s.2
of the Act, it is perhaps the statement at [35], over which we pored longest in
the course of the helpful arguments, to the extent that at one stage I ventured
to suggest we were in danger of trying to construe the paragraph as a statute.
Lord Carnwath said this:
“35. Once it is accepted that a
"literalist" approach to the definition is inappropriate, I find
myself drawn back to a reading which accords more closely to what I have
suggested was in Lord Denning's mind in Ashbridge [1965] 1 WLR 1320,
that is a simple way of defining the present identity or function of a building
as a house, by reference to its current physical character, whether derived
from its original design or from subsequent adaptation. Furthermore, I would
not give any special weight in that context to the word "adapted". In
ordinary language it means no more than "made suitable". It is true
that the word is applied to the building, rather than its contents, so that a
mere change of furniture is not enough. However, the word does not imply any
particular degree of structural change. Where a building is in active and
settled use for a particular purpose, the likelihood is that it has undergone
at least some physical adaptation to make it suitable for that purpose. That in
most cases can be taken as the use for which it is currently
"adapted", and in most cases it will be unnecessary to look further.”
63.
It was debated in argument whether this paragraph was dealing with the
first part of the definition in s.2 (“designed or adapted for living in”) or with
that part and also the second part (house “reasonably so called”). I think both
counsel inclined to the view that it was dealing with both, having regard to
what Lord Carnwath had said at [9], quoted above.
64.
Having dealt with Boss, Lord Carnwath considered Prospect.
In the Court of Appeal in Hosebay, Lord Neuberger had suggested that the
ratio of Prospect should be treated as being “limited to a case where
the residential use is either prohibited entirely, or restricted to a very
small part of the building, and the actual use accords with that”. Lord
Carnwath’s comment in Hosebay (at [41] was this:
“41. As will be apparent from my earlier
analysis of Tandon, I cannot agree that Lord Roskill regarded
"external and internal physical character and appearance" as the
determining factors. I agree with the Master of the Rolls that the terms of the
lease as such should not have been treated as the major factor. However, in so
far as Mummery LJ treated the use of the building, rather than its physical appearance,
as determinative, his approach was in my view entirely consistent with the
reasoning of the majority in Tandon as I have explained it. I consider
that Prospect Estates [2009] 1 WLR 1313 was rightly decided, and that the ratio need
not be limited in the way the Master of the Rolls proposed.”
65.
Lord Carnwath proceeded to the decisions in the two cases.
66.
For the Hosebay appeal, the decision appears at [43] in these terms:
“43. I would allow the appeal in Hosebay
on the grounds that a building which is wholly used as a "self-catering
hotel" is not "a house reasonably so called" within the meaning
of this statute. As appears from para 38 of their judgment (quoted above), the
contrary view of the Court of Appeal turned on two main points: (i) the
external appearance of each property as a town house; (ii) the internal
conversion to self-contained units, with cooking and toilet facilities. I find
it difficult with respect to see the relevance of the second point to this part
of the definition, which only arises in relation to a building which is in some
sense adapted for living in under the first part. It is not suggested that the
building is divided in a way which comes within the proviso. The first point,
for the reasons given in my analysis of Tandon, should not have been
given determinative weight. The fact that the buildings might look like houses,
and might be referred to as houses for some purposes, is not in my view
sufficient to displace the fact that their use was entirely commercial.”
67.
In the Lexgorge appeal, the decision (at [45]) was this:
“45. In Lexgorge I would also allow the
appeal on similar grounds. A building wholly used for offices, whatever its
original design or current appearance, is not a house reasonably so called. The
fact that it was designed as a house, and is still described as a house for
many purposes, including in architectural histories, is beside the point. In this
case no issue arises under the first part of the definition. It is unnecessary
to consider whether the concession in that respect was rightly made, although
it is possible that it was based on a wider interpretation of Boss Holdings
[2008] 1 WLR 289 than my own analysis would have supported.”
(E)
Discussion and Conclusion
68.
In endeavouring to apply the decided cases to this appeal, I think that
it is useful, as Mr Johnson QC for Merix did, to begin by putting to one side
the types of property which are clearly not houses within the statutory
definition, although possibly designed or adapted for living in: e.g major
hotels, hostels, purpose-built blocks of flats, self-catering hotels (the
Hosebay facts), premises with an active and settled use for entirely commercial
purposes (the Lexgorge facts). Equally, this case is not like Prospect
where the continuing use of the building, in conformity with the lease, was, as
to nearly 90%, as offices. None of the cases, apart from Boss, has
concerned a building without any present use at all at the relevant date and a
history of mixed use in the past.
69.
I also think that it is difficult to take the ratio of Hosebay
much beyond the final two sentences of paragraph [35] in that case, i.e. as
dealing with buildings with an active and settled use, such as the
properties in both appeals actually had.
70.
The fact that Lord Carnwath speaks expressly of “active and settled use”
must imply that other considerations may come in where there is no such use, as
in our present case. If there is no such use as here, it seems to me that one
must “look further” because the building is not within the category of “most
cases” to which Lord Carnwath was referring, even if one does not shut past
user from the mind.
71.
I find myself unable to accept Mr Gaunt’s submission that the last user,
or at least the last adaptation for use, must be determinative of the character
and identity of the subject building for the purposes of the definition. The
statute requires the matter to be assessed at the relevant date. To turn the
clock back in the way proposed is, in my judgment, to negate rather than to
apply the statute. What the court has to do is to decide the building’s
“present identity or function by reference to its physical character, whether
derived from its original design or from its subsequent adaptation” at the
relevant date (Lord Carnwath at [35] in Hosebay). Past adaptation may have
changed that identity or function, but I do not consider that the last user can
be the only relevant consideration.
72.
Mr Gaunt supplemented this part of his submissions by saying that one
should look at the position at (say) 24 December 2000, just after Schroders
moved out, having removed their office equipment and furniture and having left
the same traces of immediately past office user behind. In that case, he
argued, the Property would clearly not have been a “house” and the situation
has not changed since.
73.
I do not accept the premise of that submission. It seems to me that the
same conclusion, that it was a house, might well have been reached even at that
date, essentially for the same reasons as given by the judge, both with
reference to Boss and his own overall assessment in paragraph 65 of the
judgment.
74.
In this context, Mr Johnson invited us to consider the common case of a
suburban house, used partly as a residence and partly as surgery rooms for
doctors or dentists. If the medical/dental use was discontinued, the house
would (he submitted) be likely still to be considered a “house” for present
purposes, even if it bore traces of the past user.
75.
I think the analogy was useful for this reason. In the 21st
century, we remain accustomed to looking at such a hypothetical suburban
property used for mixed purposes of residence and medical/dental practice and
still regarding them in common parlance as “houses”. Once the doctor/dentist
leaves, the place still looks and “feels” like the house it has been customarily
seen to be, even if traces of the past user may be present. On the other hand,
the large London townhouse is less frequently seen today as a single private
residence and, therefore, less clearly as a “house” in modern eyes. Many such
properties will have been used wholly or in part for commercial purposes. We
start to shrink, therefore, from the idea that they are still “houses”.
However, when those commercial purposes have ceased, I see no reason why such
properties should not, in appropriate cases, still be seen as houses
“reasonably so called”, even if we are less accustomed than former generations
to seeing them as single residences. The property in the Boss case was
just such an example. As Patten LJ said in Jewelcraft Ltd. v
Pressland [2016] L&TR 73 at 77, paragraph [14] the s.2 definition was
clearly intended to operate as a purpose-made, and therefore an extended,
definition of the term.
76.
The judge considered that our case fell precisely within Boss.
The primary issue in that case, as we have seen, was whether the property was
“designed or adapted for living in”. Here there is no doubt that that criterion
was satisfied whether as to the whole or at least part of the Property. In Boss
the court felt no doubt that the building was a house reasonably so called. To
that extent, I consider that this case is at least very close to the facts of Boss.
I do not ignore the fact that in that case residential user of the top floors
was required by the lease and commercial use of the lower floors was only permitted,
provided that no show of business was visible externally. In our case, office
user of the lower floors was required by the lease. Like Judge Gerald, however,
I note that Lord Carnwath thought that the terms of the lease should not have
been treated in Prospect “as the major factor”, even though the ratio of
that case had not been as confined as that seen by Lord Neuberger when the Hosebay
case was in the Court of Appeal: see paragraph [41] in Hosebay.
77.
While Lord Carnwath noted the tension between the acceptance by Lord
Roskill in Tandon of counsels’ agreed proposition that our question
(house or no) is one of mixed law and fact and his later statement that the
question is one of law, I also recall that in this court in Jewelcraft [2016]
L&TR at 79, paragraph [20] Patten LJ said that the question whether a
particular property is a house “has been authoritatively recognised to be a
question of law and not a purely factual issue for the judge”. It seems to me,
however, that the law, in statute and decided cases, has not prescribed and
cannot possibly prescribe a legal solution for every type of property. The
problem in Jewelcraft was that the judge had said that a property, which
was of essentially the same type and with the same user as the property in Tandon,
was not a house. He had, in effect, rejected the legal analysis of the
character of premises which consist of a shop with living accommodation above,
as being a house within s.2, which had been authoritatively determined in Tandon.
This court decided that that course was not open to him and so allowed the
appeal.
78.
In formulating his propositions of law in Tandon Lord Roskill was
desirous of achieving “broad consistency in the conclusions reached” and said
that the question must not, “save within narrow limits” be treated as a
question of fact. Patten LJ in Jewelcraft said that the question was not
“purely” a factual issue. Where the trial court is faced with a property of a
type not exactly similar to one previously characterised by the higher courts, it
must surely do its best to apply the law to the facts as found and decide
whether the property in question is or is not a house, with the benefit of its
own evaluation.
79.
Once one reaches that position, it seems to me that it would be
misplaced to disturb the judge’s conclusion that the Property here had
essentially the same identity and function as the building in issue in Boss.
Boss was the closest example for the purpose of trying to place the case
within a defined legal category. Beyond that, one comes to a stage where,
having paid due regard to the various formulations of legal principle in past
cases, it becomes hard to fault or to better the final assessment made overall
by a trial judge. However much one tries to squeeze particular types of property
into watertight legal compartments, e.g. as in Tandon, the fact remains
that buildings are infinitely variable in character and function, affected in
part by historic user. The Supreme Court in Hosebay was clearly troubled
by the rigidity imposed by the Tandon decision and said that the
propositions formulated “do not…offer much assistance as such, at least beyond
the facts of the case”. Various types of building must, it seems to me, be
amenable to varying characterisation by trial judges, doing their best to apply
the principles emerging from decided cases. Any other solution is simply a
recipe for an endless chain of appeals to the higher courts in an attempt to
achieve a formal legal characterisation of individual properties to no
advantage at all to the litigants involved.
80.
Here the issue was whether this was a house, with traces of past office
user, or was it a disused office building. Why, I ask, when a judge has taken
full account (as this judge did) of all the guidance to be derived from
precedent, should one overturn his assessment of whether or not this was a
“house…reasonably so called”? I accept Mr Johnson’s submission that we should
not do so. The judge was in the best position to make that assessment which he
made with the utmost clarity after an exhaustive factual analysis and, to my
mind, a full and accurate noting of the legal principles which he had to apply.
I can find no reason to interfere with his conclusion.
81.
I would, therefore, dismiss this appeal.
Lord Justice Flaux:
82.
I agree.
Lord Justice McFarlane:
83.
I also agree.
