Uratemp Ventures Limited v. Collins (Ap) [2001] UKHL 43 (11th October, 2001)

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Uratemp Ventures Limited v. Collins (Ap) [2001] UKHL 43 (11th October, 2001) URL: http://www.bailii.org/uk/cases/UKHL/2001/43.html Cite as: [2002] 1 All ER 46, [2001] UKHL 43, [2001] NPC 145, [2002] RVR 162, [2001] 43 EGCS 186, 2001 Hous LR 133, [2001] 3 EGLR 93, [2002] 1 AC 301, [2002] AC 301, (2001) 33 HLR 85, [2001] 3 WLR 806, [2002] L & TR 15, [2002] 1 P & CR DG15

HOUSE OF LORDS

Lord Irvine of Lairg LC Lord Bingham of Cornhill Lord Steyn Lord Hobhouse of Wood-borough Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

1. I have had the advantage of reading in draft the comprehensive judgment of my noble and learned friend, Lord Millett. I adopt his analysis of the facts, the relevant legislative histories and the authorities; and also the orders he proposes.

2. This appeal concerns the words, "a dwelling-house……….let as a separate dwelling" in section 1 of the Housing Act 1988. A single room, as part of a house, may be a dwelling-house; and on this appeal there is no issue of shared accommodation or facilities. The key issue is: whether the room which Mr Collins occupied, in the Viscount Hotel, Prince of Wales Terrace, Kensington, when proceedings were brought, could in law qualify as a "dwelling" only if cooking facilities were there available. Unless constrained to the contrary by authority, I would impose no such restrictive interpretation. Such a restrictive interpretation would both be unwarranted by the statutory language and an inappropriate gloss on provisions designed to give some protection to tenants in modest rented accommodation under assured tenancies.

3. "Dwelling" is not a term of art, but a familiar word in the English language, which in my judgment in this context connotes a place where one lives, regarding and treating it as home. Such a place does not cease to be a "dwelling" merely because one takes all or some of one's meals out; or brings take-away food in to the exclusion of home cooking; or at times prepares some food for consumption on heating devices falling short of a full cooking facility.

4. Decisions on the infinite factual variety of cases are for judges of trial and their decisions on the facts of individual cases should neither be treated nor cited as propositions of law. I would not myself, for example, regard a bed, any more than cooking facilities, as an essential pre-requisite of a "dwelling": every case is for the judge of trial but I would have no difficulty with a conclusion that one could live in a room, which is regarded and treated as home, although taking one's sleep, without the luxury of a bed, in an armchair, or in blankets on the floor.

5. For these short reasons, along with those of Lord Bingham and Lord Steyn, I too would allow the appeal and make the orders my noble friend, Lord Millet, proposes.

6. I gratefully adopt the factual narrative given by my noble and learned friend Lord Millett, and also his summary of the relevant legislation and authorities.

7. Section 1 of the Housing Act 1988, which the House must construe, has a very long pedigree. For present purposes it poses two central questions. The first is whether the landlord has granted a tenancy of the premises in question or merely a licence to occupy them. That was a live question in the present case but one which, if relevant when the second question had been answered, would have had to be remitted to the county court. The second question is whether, if a tenancy be assumed, the premises which were let are a dwelling-house.

8. Much of the case law on this section and its predecessors has been directed to the requirement that the premises be let as a "separate" dwelling: see, in particular, Neale v Del Soto [1945] KB 144; Cole v Harris [1945] KB 474; Kenyon v Walker [1946] 2 All ER 595; Winters v Dance [1949] LJR 165; Baker v Turner [1950] AC 401; Hayward v Marshall [1952] 2 QB 89; Goodrich v Paisner [1957] AC 65; Marsh Ltd v Cooper [1969] 1 WLR 803; Parkins v Westminster City Council [1998] 1 EGLR 22. In these cases some space or facility was (or was said to be) enjoyed in common between the tenant and another or others, and the question was whether that which was enjoyed in common was of such a character or of such significance as to preclude description of what was let as a separate dwelling. In this context, distinctions were understandably and rightly drawn between living rooms, such as bedrooms and kitchens, and ancillary offices, such as bathrooms and lavatories: common enjoyment of the former but not the latter tended to weigh against recognition of the premises let as a separate dwelling.

9. None of these problems arises here. It is accepted (rightly, on the long-standing authority of Curl v Angelo [1948] 2 All ER 189) that a single room may be a dwelling-house. Mr Collins did not enjoy any space or facilities in common with other occupants. So the short question is whether room 403, the room let (as it is assumed) to Mr Collins, is a dwelling-house.

10. Save that a dwelling-house may be a house or part of a house (1988 Act, section 45(1)), no statutory guidance is given on the meaning of this now rather old-fashioned expression. But the concept is clear enough: it describes a place where someone dwells, lives or resides. In deciding in any given case whether the subject-matter of a letting falls within that description it is proper to have regard to the object of the legislation, directed as it is to giving a measure of security to those who make their homes in rented accommodation at the lower end of the housing market. It is not to be expected that such accommodation will necessarily offer all the amenities to be found in more expensive accommodation.

11. The time at which it has to be judged whether premises are entitled to protection is when action is brought: Baker v Turner [1950] AC 401 at 415, 419-420. At that stage it is necessary to consider the terms of the letting, the premises let and, in my opinion, the use made of them by the tenant: see section 1(1)(b) of the 1988 Act, which recognises that circumstances may change during the currency of a tenancy.

12. It appears, in the present case, that Mr Collins habitually used some electrical devices to warm food in his room before eating it. The room was equipped with a power point which permitted that. I doubt if what he did could properly be described as cooking, but I do not think it matters. It is in my view plain on the evidence that this room was Mr Collins' home, the place where he lived, and this is so whether he had his meals out or warmed up food to eat in his room or did a little rudimentary cooking or a bit of all three. If a room were so small and cramped as to be unable to accommodate a bed, I should be inclined to doubt whether it would qualify to be called a dwelling-house because, although sleeping in premises may not be enough to make them a dwelling-house, premises will not ordinarily be a dwelling-house unless the tenant sleeps there. But in my view the courts should be very wary of laying down inflexible rules which come to be mistaken for rules of law even though they are very largely conclusions of fact based on particular cases. That is what, as I think, has happened in this field, as Lord Millett has shown.

13. I am of the clear opinion that room 403, if let to Mr Collins under a tenancy, was let as a separate dwelling-house. For these short reasons, as well as those given by the Lord Chancellor, Lord Steyn and Lord Millett, I would allow this appeal. For reasons given by Lord Millett it is now inappropriate to remit the matter to the county court to determine whether there was a letting to Mr Collins. On 25 September 2000 the landlord, Uratemp Ventures Ltd, withdrew its opposition to this appeal. I agree with the costs order proposed by my noble and learned friend.

14. The question is whether a modest room in the Viscount Hotel, Prince of Wales Terrace, Kensington, occupied by Mr Collins is a dwelling-house. It arises under section 1 of the Housing Act 1988 which speaks of "a dwelling-house . . . let as a separate dwelling". Since Mr Collins did not share accommodation or facilities with other persons in the hotel the only issue before the House is whether the room occupied by Mr Collins is a "dwelling-house" within the meaning of section 1. Part of a house may be a dwelling-house: section 45(1). And it is common ground that a bed-sitting room may be a dwelling-house. But the majority in the Court of Appeal held that the particular room could not be a dwelling-house because of the absence of cooking facilities. They treated the presence of cooking facilities as an indispensable requirement for a person's home being a "dwelling-house" within the meaning of section 1. They thought that an observation in the leading judgment of Lord Templeman in Westminster City Council v Clarke [1992] 2 AC 288, 299A, compelled this conclusion. On this question 14 decisions of which 11 were of the Court of Appeal were cited to the House. Acknowledging that such "autopsies" have their value at times, Justice Cardozo famously described such examinations as "wearisome and gruesome scenes". In my view a resort to first principles points to a route through this jungle of judicial glosses on the meaning of dwelling-house.

15. The starting point must be that "dwelling-house" is not a term of art. It is an ordinary word in the English language. While I accept that dictionaries cannot solve issues of interpretation, it nevertheless is helpful to bear in mind that dwelling-house has for centuries been a word of wide import. It is often used interchangeably with lodging. It conveys the idea of a place where somebody lives: see Johnson's Dictionary, s.v. "dwelling-house" and Murray's Oxford English Dictionary, s.v. "dwelling-house" and "lodging". In ordinary parlance a bed-sitting room where somebody habitually stays is therefore capable of being described as a dwelling-house. So much for generalities. The setting in which the word appears in the statute is important. It is used in legislation which is intended to afford a measure of protection to tenants under assured tenancies. This context makes it inappropriate for the court to place restrictive glosses on the word "dwelling". On the contrary, as counsel appearing as amicus curiae accepted, the courts ought to interpret and apply the word "dwelling-house" in section 1 the 1988 Act in a reasonably generous fashion.

16. The social phenomenon of the person "Who friendless in a London lodging lives, Dines in a dingy chop-house" (O.E.D., s.v. "chop-house" (1861)) goes back a very long time indeed. Dickens has described this world for us in unforgettable scenes. It is to be contrasted with the world of ostentatious dinner parties in smart houses mocked again and again by Trollope in many of his novels. The world has changed. In recent years there have been great social changes which reinforce the view that it is artificial to place on the word "dwelling-house" the restrictive gloss that for a room or accommodation to qualify it must have cooking facilities. First, there are nowadays many more people who live alone. Specifically, a survey in Spring 2000 recorded that three in ten households in Great Britain comprised one person living alone, more than two and a half times the proportion in 1961: National Statistics, Social Trends, No 31, 2001 ed, 41. Secondly, there has been an explosion in the growth of self-service cafeteria, sandwich shops, takeaway shops, home delivery services and other fast food outlets. One only has to look under the entry 'Food and Drink Delivered' in the most recent edition of the Yellow Pages for Central London (2000/2001) to realise the scale of this development in the eating habits of large numbers of people of all ages. And it is necessary to interpret section 1 of the 1988 Act in the world of today: R v Ireland [1998] AC 147, 158C-G.

17. The observation in Westminster City Council v Clarke [1992] 2 AC 288, 299A by Lord Templeman, that "a bed-sitting room with cooking facilities may be a separate dwelling-house even though bathroom and lavatory facilities might be elsewhere and shared with other people" was not part of the ratio decidendi of the case. The point was not in issue and the House heard no argument on it. Moreover, as Mance LJ convincingly demonstrated in the Court of Appeal in the present case the observation was not justified by the earlier authorities. In my view the observation in Westminster City Council v Clarke was too restrictive. A bed-sitting room which a tenant occupies as his home may be a dwelling even if he brings in all his meals or goes out for all his meals. There is no authority binding on the House which precludes this construction. In these circumstances it follows that the room occupied by Mr Collins was his dwelling-house.

18. How such cases are approached by judges at the coal-face is important. On this point I agree with the succinct statement of principles by Lord Bingham of Cornhill in paragraphs 10 and 11 of his speech.

19. For the reasons given by Lord Bingham of Cornhill and Lord Millett, as well as the brief reasons I have given, I would allow the appeal and make the orders proposed by Lord Bingham and Lord Millett.

20. For the reasons already given and those to be given by my noble and learned friend Lord Millett whose speech I have the opportunity of reading in draft, I agree with the orders proposed. I will only add the further observation that the complications in the present case, as in some earlier cases, have arisen from treating factual decisions as if they involved the formulation of propositions of law. Consistency of approach is required from case to case. But that should not lead to the elaboration of a simple factual description with a supposed legal overlay preventing the language of the statute from being given effect to in each individual case in accordance with its ordinary meaning.

21. This case calls upon your Lordships' House to consider, not for the first time, the familiar expression "part of a house let as a separate dwelling". This formula was the cornerstone of the Rent Acts and as such the daily fare of generations of county court and appellate judges for much of the last century. Yet this is the first time that that your Lordships have been called upon to decide the meaning of the word "dwelling" which forms part of the statutory formula. The question for decision is whether a part of a house can constitute a dwelling if cooking facilities are not available or cooking is prohibited by the terms of the letting.

22. In Westminster City Council v Clarke [1992] 2 AC 288 Lord Templeman observed, at pp 298H-299A:

Following the guidance seemingly offered by this passage, the Court of Appeal in the present case (Peter Gibson LJ and Moore-Bick J, Mance LJ dissenting) felt constrained to hold that the presence of cooking facilities was an essential characteristic of a dwelling. The question for your Lordships is whether the absence of such facilities prevents a person's home from being a "dwelling" within the meaning of the statutory formula and so precludes the occupier from enjoying security of tenure.

23. The respondents are the owners of the Viscount Hotel, Prince of Wales Terrace, Kensington. The hotel has 58 rooms, 15 of which are occupied by long-term residents. Mr Collins is one of them. He took up occupation of Room 510 in January 1985. The standard of accommodation was very modest. The room contained a bed and had a separate lavatory and a shower and wash basin. Breakfast was available in the restaurant and was included in the rent.

24. Mr Collins has changed rooms three times, first to Room 501, paying the same rent, and later to Room 403, which he was still occupying when the Court of Appeal gave judgment. He has since moved again. Breakfast ceased to be provided when the restaurant closed in 1988.

25. Room 403 measures some 72 square feet. It has a single bed, some furniture, a shower and a basin. Except for an increase in the amount of the weekly rent the terms of Mr Collins' occupation remained the same.

26. No cooking facilities were provided in any of the rooms which Mr Collins occupied, although each of them contained at least one power point. Mr Collins brought in some furniture of his own and electrical equipment to enable him to prepare simple meals; a pizza warmer, a toasted sandwich maker, a warming plate, a kettle, and what he described as "an underlight". He was not prohibited by the terms of his occupation from bringing such equipment into his room. He took ready-cooked take-away meals into his room and ate them there.

27. In 1993 the hotel published rules which on safety grounds prohibited cooking in rooms otherwise than by the use of microwaves and kettles. Residents were required to accept the rules by signing them, but Mr Collins never did so. He maintained that the terms of his occupation never changed throughout the period of his stay in the hotel.

28. On 28 April 1998 the respondents served a notice terminating what they contended was Mr Collins' licence to occupy Room 403. They brought proceedings for possession in the West London County Court. Judge Cotran dismissed the respondents' claim for possession and granted Mr Collins a declaration that he held the room on an assured tenancy within the meaning of section 1(1) of the Housing Act 1988, which employs the customary formula. It was not disputed that the room was part of a house. The respondents denied that it was let or, if it was, that it constituted a dwelling; though if it did it was a separate dwelling, since Mr Collins did not share accommodation or facilities with anyone else. The Judge held that it was let as a separate dwelling and that Mr Collins' meagre culinary equipment satisfied any requirement that a dwelling should possess cooking facilities.

29. The Court of Appeal considered that the Judge had made inadequate findings in relation to the question whether Mr Collins' occupation was under a licence or a tenancy, and would if necessary have remitted the case to the County Court for retrial of that issue. In the event they did not do so because, in the view of the majority, the absence of cooking facilities precluded a finding that Room 403 was a dwelling. The room had been let furnished but without cooking facilities, and (it was said) a room did not have the necessary facilities for cooking merely because it had a power point. The position might be different if the room had been let unfurnished or it had been contemplated that the occupier would bring in his own cooking equipment. Mance LJ dissented. He held that the availability of cooking facilities was not an essential characteristic of a dwelling, and considered that it was artificial to draw a distinction between furnished and unfurnished lettings. On the footing that, contrary to his view, the presence of cooking facilities was essential, he would have remitted the case for retrial of the question whether the room constituted a dwelling, and in particular whether the terms on which Mr Collins occupied the room contemplated the use by him of his own cooking facilities.

30. 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, but the idea that he must also cook his meals there is found only in the law reports. It finds no support in English literature. According to the Book of Common Prayer, "the fir trees are a dwelling for the storks" (Psalm 104); while W. S. Gilbert condemned the billiard sharp "to dwell in a dungeon cell" (where it will be remembered he plays with a twisted cue on a cloth untrue with elliptical billiard balls): The Mikado Act II. It is hardly necessary to observe that Victorian prison cells did not possess cooking facilities. Of course, the word "dwell" may owe its presence to the exigencies of the rhyme, but it does not strike the listener as incongruous. If faintly humorous, it is because the occupation of a prison cell is involuntary, not because of the absence of cooking facilities. As I shall show hereafter, Gilbert, who had qualified at the Bar, had got his law right. An earlier and greater poet wrote of Lucifer being hurled "to bottomless perdition, there to dwell in adamantine chaos and penal fire": (Paradise Lost Book I l.47).

31. In both ordinary and literary usage, residential accommodation is "a dwelling" if it is the occupier's home (or one of his homes). It is the place where he lives and to which he returns and which forms the centre of his existence. Just what use he makes of it when living there, however, depends on his mode of life. No doubt he will sleep there and usually eat there; he will often prepare at least some of his meals there. But his home is not the less his home because he does not cook there but prefers to eat out or bring in ready-cooked meals. It has never been a legislative requirement that cooking facilities must be available for a premises to qualify as a dwelling. Nor is it at all evident what policy considerations dictate that a tenant who prepares his meals at home should enjoy security of tenure while a tenant who brings in all his meals ready-cooked should not. How, then, have the courts reached the conclusion that, as a matter of law, the presence of cooking facilities is an indispensable characteristic of "a dwelling"?

32. The first of the Rent Acts was the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915. This applied to "a house or a part of a house let as a separate dwelling": see section 2(2); and the formula was repeated in succeeding Rent Acts and has been carried over into the more recent Housing Acts. But its genesis was older, being derived from the formula which was employed in relation to the Parliamentary franchise.

33. The Reform Bill of 1832 extended the franchise to males over the age of 21 who satisfied a property qualification by occupying a house or other building in the constituency of a specified minimum annual value. The courts held that four elements must be present: tenement, value, occupation and estate. A difficulty was caused by the requirement that the tenement be "a house or other building". It was not doubted that a single room could constitute a separate house if there was a sufficient degree of structural separation from the rest of the building of which it formed part. The Representation of the People Act 1867 (30&31 Vict, c 102) introduced the word "dwelling house", but refrained from defining it except to provide (by section 61) that it should include "any part of a house occupied as a separate dwelling, and separately rated to the relief of the poor".

34. The meaning of this expression was explored in the great case of Thompson v Ward, Ellis v Burch (1871) LR 6 CP 327, in which a four man court was divided on every issue and equally divided on the outcome. The Court held (by a majority of three to one) that section 61 of the 1867 Act removed the requirement of structural separation by directing attention to the nature of the occupation rather than its subject-matter. In the course of his judgment Bovill CJ (who was in the majority on this point) said, at p 358:

In a passage of some significance for present purposes the Chief Justice proceeded, at p 359, to give examples of rooms which could properly be considered to be dwelling-houses:

Whatever may have been the position in the case of the other examples given, the inclusion of rooms in colleges at the universities is illuminating. Unmarried fellows who lived in college in the 19th century did not prepare their own meals or cook in their rooms. Their rooms not only lacked cooking facilities but were without running water, and dons in residence, like the undergraduates, ate in hall or had their meals brought to them from the college kitchens. At the most they may have made tea in their rooms or toasted muffins over an open fire, but the opportunity to engage in such minor activities can hardly be the distinctive characteristic of a dwelling.

35. There were limits, of course. Attempts to claim the franchise by persons who were in gaol failed on the ground that a prison cell was not a dwelling. This was not because it lacked cooking facilities, but because the residence was compulsory and temporary "and without any intention on the [occupier's] part of remaining, but, on the contrary, with an intention . . . of leaving it when she could": Dunston v Paterson (1858) 5 CB(NS) 267, per Willes J. In Powell v Guest (1864) 18 CB (NS) 72, 80 Erle CJ expressly approved a statement in a contemporary textbook which stated that the occupant must have "at the least a sleeping apartment." He did not suggest that this was insufficient.

36. The difficult case of Stribling v Halse (1885) 16 QBD 246 was a foretaste of what was to come. A shop assistant had exclusive occupation of a furnished bedroom in a dwelling-house belonging to his employers. The house contained other bedrooms and a dining room in which the residents took their meals in common which were provided by their employers. It was doubted whether a person could be said to occupy a bedroom as his dwelling when he dwelt partly in the bedroom and partly in another room. In the mistaken belief that such doubts had been removed by a decision of the Court of Appeal, the Divisional Court held that the bedrooms were separately occupied as dwelling houses for the purpose of the franchise. The decision was later doubted (see Barnett v Hickmott [1895] 1 QB 691) but only because of the existence of the communal dining room. No doubt was cast on the decision in so far as it involved a finding that a bedroom which lacked cooking facilities was a dwelling. In Barnett v Hickmott a policeman failed to obtain the franchise by virtue of his occupation of a lock-up cubicle in a dormitory, but only because the cubicle was insufficiently partitioned from the rest of the dormitory and the ventilation, atmosphere and lighting were common to all the cubicles. He was not denied the vote because he could neither cook nor eat in his cubicle.

37. The Rent Acts adopted a similar formula but varied it slightly from "occupied as a separate dwelling" to "let as a separate dwelling", but nothing seems to have turned on this. The premises to which the Acts applied were necessarily let unfurnished or only sparsely furnished, since they did not apply where a substantial charge was made for the use of furniture. It was established very early that it was the state of things at the date when the proceedings were brought that mattered: Prout v Hunter [1924] 2 KB 736 (a point which the majority judgments in the Court of Appeal in the present case appear to have overlooked) and the use to which the tenant put the premises once he had furnished them was taken to be indicative of their character and the purpose for which they were let. The Housing Acts have extended security of tenure (and the application of the statutory formula) to furnished lettings, but the question still has to be determined as at the date when proceedings are brought, by which time the premises will almost invariably have been furnished whether or not they were originally so let. Where the tenant has not installed cooking facilities of his own, no sensible distinction can be drawn between premises which were originally let unfurnished and premises which were let furnished but without such facilities.

38. The object of the Rent Acts was to protect people from being evicted from their homes. Their legislative purpose was, therefore, very different from that of the Representation of the People Acts, and it could be dangerous to rely on the Nineteenth century cases particularly in relation to the word "separate"; but there is no reason to be chary of doing so in relation to the word "dwelling". Security of tenure, like the property qualification for the franchise, was given in respect of premises which constituted a person's home.

39. Over the course of the 20th century much judicial labour was expended on the statutory requirements that the premises must be "let" (so that they must be occupied under a tenancy and not a mere licence) and that they must be let as a "separate" dwelling (that is to say not shared with others). Shared accommodation or facilities presented a special problem, and it is convenient to deal first with the cases where this element was absent.

40. There is only a handful of reported cases in which a single room has failed to qualify as a "dwelling" for the purposes of the Rent Acts, and in none of them was this because it lacked cooking facilities. In Wright v Howell (1947) 92 SLJ 26 CA the room had neither cooking facilities nor water supply at the date of the letting, though the tenant afterwards installed an electric cooker. After the tenant's wife had a baby, the family slept upstairs in a flat belonging to her parents. Scott LJ said that

and that as one of those activities, sleeping, was not being carried on there, the room was not a dwelling and the tenancy was not protected. Given that the tenant did not sleep on the premises, the decision is unremarkable; it is not an authority for the proposition that the tenant must also be able to cook there, for at the date when the proceedings were brought he did. The case is simply one where at the relevant time the tenant did not dwell in his own flat, but partly there and partly in his parents-in-law's flat, so that his flat was not a dwelling but only part of a dwelling: (see McCarthy v Preston [1951] NZLR 1091 at pp. 1092-1093). This is how the case was explained by Lord Greene MR in Curl v Angelo [1948] 2 All ER 189, 192, and it is in conformity with Lord Reid's explanation of the cases on shared accommodation in Baker v Turner [1950] AC 401, 437:

41. In Curl v Angelo two rooms were let to the proprietor of an adjoining hotel as additional accommodation for the hotel. They were used mainly for guests but occasionally for the tenant's family or staff. The tenant's claim for protection was rejected on the ground that the premises were not a dwelling. They were not "the home of anybody; they were a mere annexe or overflow of the hotel". But Lord Greene MR made it clear that a dwelling could consist of a single room. He said:, at p 190:

Lord Greene explained Wright v Howell as another case where the tenant carried on only one of his home activities on the premises which were the subject of the letting while he carried on others in a different tenement altogether.

42. In Metropolitan Properties Co (FGC) Ltd v Barder [1968] 1 All ER 536 a protected tenant of a flat under a 12 year lease took a quarterly tenancy of a small single room on the opposite side of the corridor for use by an au pair. It was furnished as a bedroom with washbasin. It was held that "this tiny room" was not let as "a dwelling-house". The basis of the decision is not entirely clear, but I have no doubt that it was correct. Even if the room could properly be regarded as the au pair's dwelling, she was not the tenant; and although the tenant was in occupation of the room by his servant it was not his dwelling but only part of his dwelling. Had it been possible to regard the arrangement as a mere extension of the original letting the result might have been different (see Wimbush v Cibulia [1949] 2 KB 564); but its terms showed it to be an entirely distinct letting. Edmund Davies LJ stressed, at p 542, that the decision had no application to a case "where a single room is let as the occupier's place of habitation for all purposes."

43. None of these cases turned on the absence of cooking facilities. All were cases where, on the facts, the subject-matter of the letting constituted only a part of the tenant's dwelling.

44. The question whether the landlord qualified as a "residential landlord" for the purpose of section 12 of the Rent Act 1977 by occupying a bed-sitting room without cooking facilities arose in Palmer v McNamara [1991] 1 EGLR 121. The landlord had never learned to cook, and either bought food which he did not need to cook or ready-made take-away meals. It was argued that a room without a cooker could not be described as a dwelling. This was rejected by the Court of Appeal, which observed that the room occupied by the landlord contained everything required to be his dwelling house except a cooker which he did not want. It was his home and therefore his residence. I have no doubt that the case was rightly decided. It did not, of course, turn on the statutory formula or the word "dwelling"; but the decision of the majority of the Court of Appeal in the present case cannot stand with it. If the room was the landlord's residence, it was his dwelling. The decision was explained by Moore-Bick J on the basis that the landlord was in the same position as a tenant of an unfurnished room who has the right to install a cooker if he wishes to do so: the fact that he chooses not to do so cannot affect the nature of the premises themselves. But this will not do. As I have already explained, the question has to be determined at the date of the proceedings, not at the date of the original letting. At the relevant time the premises were furnished but lacked a cooker. Either its absence was fatal to the classification of the premises as a dwelling or it was not.

45. The supposed requirement that cooking facilities must be available for premises to qualify as a dwelling derives from cases directed to the question whether the tenancy constituted a "separate" dwelling when it included shared accommodation or facilities. The conclusion which was reached was that a right to share living accommodation put the tenancy outside the protection of the Acts, whereas a right to make use of communal facilities such as a w.c. or bathroom did not. For this purpose a kitchen was classified as a living room.

46. The leading case was Neale v Del Soto [1945] 1 KB 144. The tenant took a tenancy of two rooms together with the use, in common with the landlord, of the garage, kitchen, bathroom, w.c., coal house and conservatory. This was held not to be a letting of the two rooms as a separate dwelling, but a sharing of the house.

47. Neale v Del Soto was explained and distinguished in Cole v Harris [1945] 1 KB 474 where the premises consisted of a bedroom, living room and kitchen on the first floor of a dwelling-house together with the use of a bathroom and w.c. in common with the landlord and the tenant of the second floor. The county court judge had understood Neale v Del Soto to lay down a rule of law that "the sharing of any part of the accommodation included in the tenancy contract which is essential to the conception of a dwelling-house, according to ideas held at the present day, prevents the letting from being a letting of part of a house as a separate dwelling." See p 478. This test was accepted by Lawrence LJ in the Court of Appeal but was firmly rejected by the majority, who said that Neale v Del Soto laid down no such principle. They drew the line in a different place, between the sharing of living accommodation, which took the case outside the Acts, and the use of shared facilities such as a bathroom and w.c., which did not. They agreed that a w.c. was an essential part of the accommodation according to current modes of living, but it was not a living room. Mackinnon LJ set out the test, at p. 479:

This provides no support for the contention that the availability of cooking facilities is an essential part of the concept of a dwelling-house. Both the kitchen and the w.c. were essential to ordinary living, but the one formed part of the living accommodation and the other did not. Mackinnon LJ emphasised the word "living," not the word "essential". Morton LJ did not even use the word "essential". He said, at p 485:

This explains why the kitchen was classified as a living room. It was not because it afforded the tenant the ability to cook his meals there, but because it was one of the rooms in which he could fairly be said to live. A kitchenette measuring seven feet by six feet and containing inter alia a kitchen table was held to be a living room in Winters v Dance [1949] LJR 165: but this is because it was treated as being merely a small kitchen. In Marsh Ltd v Cooper [1969] 1 WLR 803 an even smaller room, probably no more than an alcove, which contained no furniture and in which it was impossible to do anything except cook and wash up (the tenant did not eat there), was held not to be a living room.

48. These decisions lost much of their importance after the passing of section 8 of the Landlord and Tenant (Rent Control) Act 1949. Henceforth the sharing of accommodation did not preclude the application of the Rent Acts unless it was shared with the landlord. The distinction was the key to the legislative policy which lay behind the requirement that the dwelling be "separate". As later cases explained, the right of a tenant to share his living accommodation was such an invasion of the landlord's privacy that Parliament cannot be taken to have intended that the tenant should have security of tenure. This was not so in the case of a right to share the use of a bathroom or w.c.

49. Not every right to make use of the facilities of the kitchen was sufficient to take the case out of the Rent Acts. In Hayward v Marshall [1952] 2 QB 89 the tenant took a letting of three unfurnished rooms together with a right to draw water in the kitchen and once a week to use the gas stove in the kitchen to boil washing. These limited rights did not amount to a right to use the kitchen as part of the living accommodation provided by the tenancy, and the tenancy was held to be protected. Unfortunately in the course of their judgments both Jenkins LJ and Sir Raymond Evershed MR repeated the expression "essential living accommodation" (without emphasising the word "living"), and this became something of a mantra in later cases. Sir Raymond Evershed MR said, at p 99:

This comes perilously close to reviving the test which was rejected in Cole v Harris. Taken out of context and divorced from the reasoning in Cole v Harris, the use of the word "essential" is potentially misleading. The cases did not decide that a kitchen is an essential part of a dwelling, so that premises which lack cooking facilities are not a dwelling. What they decided was that the essential feature of a dwelling is that it contains living accommodation, and that every room which forms part of the tenant's living accommodation, including the kitchen if there is one, forms part of his dwelling. It is fallacious to reason that, because a kitchen is a living room and therefore part of any dwelling which possesses one, premises which do not possess a kitchen are not a dwelling. Substitute the word "sitting-room" for "kitchen" and the fallacy is exposed.

50. I think that the word "essential" is best omitted in this context. In summarising the result of the cases in Baker v Turner, none of the members of your Lordships' House found it necessary to use it to qualify the words "living rooms" or "living accommodation." Lord Porter summarised the result of the decisions, at p 414:

Your Lordships were more forthright in Goodrich v Paisner [1957] AC 65. Lord Morton of Henryton considered the use of the word "essential" in the present context to be "not particularly appropriate"; while Lord Radcliffe regarded it as a gloss on the statute which either begged the question or confused the issue (see pp 84, 91). Lord Radcliffe could see nothing more satisfying in the definition which had been offered in the course of argument: "a living room is a room wherein you cook, eat, sleep and put your feet on the fender." As he observed: "Why ever should courts of law tie themselves down in this way?" He would have been astonished at the idea that a room or set of rooms could not constitute a dwelling unless they possessed facilities for cooking.

51. The House confirmed the test laid down by the majority of the Court of Appeal in Cole v Harris in the face of an attempt to revive the test which had been adopted by the county court judge and Lawrence LJ in that case. It was argued that the question should be: "Do the rooms so let in fact contain the essentials of a separate dwelling, or is what is let a separate dwelling only if you include with it the other rights or conveniences which the tenancy agreement confers?" This was once again firmly rejected: see Lord Morton at p 85 (dissenting but not on this point).

52. In Haywood v Marshall [1952] 2 QB 89 counsel had suggested that there might be a distinction between a concurrent sharing and a consecutive sharing, only the former being sufficient to take the tenancy out of the protection of the Rent Acts. This idea was eventually taken up in Goodrich v Paisner, where the tenant's right to have the occasional use of a bedroom in common with the landlord was held not to exclude the application of the Rent Acts. It was assumed that the tenancy agreement did not contemplate simultaneous user; there would have had to be some further arrangement by which there would be separate user at successive times. On this footing, there was not such a sharing as would involve the invasion by the one party of the privacy of the other sufficient to exclude the application of the Rent Acts.

53. So I can come to Westminster City Council v Clarke [1992] 2 AC 288. The case concerned a hostel with 31 rooms, each with a bed and limited cooking facilities. Accommodation was made available to vulnerable persons by the local authority in the discharge of its social responsibilities. Mr Clarke occupied one of the rooms as his only home. The question for decision was whether he had exclusive possession of the room. If he did, he was a secure tenant. On the facts the House held that none of the occupants had exclusive possession of his room. The restrictions placed on their use of the rooms, the facts that they were not entitled to any particular room and might be required to share a room, and above all the fact that the grant of exclusive possession would be inconsistent with the social purpose for which the accommodation was provided, all pointed to this conclusion.

54. Lord Templeman gave the only reasoned speech. It is clear that the passage which I have cited and on which the majority of the Court of Appeal relied in the present case is not part of his reasoning. It is certainly not authority for the proposition that a room is not a dwelling in the absence of cooking facilities. In the first place, even a clear statement to that effect would have been obiter, since the room in question possessed them. In the second place, this was not the issue: the question was whether Mr Clarke had exclusive possession of his room, not whether it was a dwelling. In the third place, the authorities cited (Neale v Del Soto, Cole v Harris, and Goodrich v Paisner) lay down no such principle. All are cases of shared accommodation which do not depend on the meaning of the word "dwelling"; and the two last-named are entirely inconsistent with the proposition, which would seek to revive the test expressly rejected in each of them.

55. In Parkins v Westminster City Council [1998] 1 EGLR 22 CA the tenant occupied a bedroom and shared the use of a common room, kitchen, bathroom and separate w.c. Chadwick LJ described the tenant as being faced with an unanswerable dilemma. The premises as a whole were not let as a separate dwelling, since while they provided cooking facilities the tenant did not have exclusive possession of them; nor was the bedroom alone let as a separate dwelling, since while he did have exclusive possession of the room, it did not provide cooking facilities. Whether the correct view was that the tenant was entitled to occupy the whole of the premises or only the bedroom, there was no letting of a separate dwelling.

56. I have no doubt that the decision was correct, but the distinction which Chadwick LJ drew is an analytical not a factual one. The facts were capable of only one interpretation; the tenant was entitled to exclusive possession of the bedroom and the shared use of two living rooms and other facilities. The so-called dilemma is real enough, but is not that depicted by Chadwick LJ. It was described by Lord Reid in Baker v Turner [1950] AC 401 and does not depend on the presence or absence of cooking facilities. The premises as a whole were not a separate dwelling because the tenant did not have exclusive possession of them, and the bedroom alone was not the tenant's dwelling but only part of it. The absence of cooking facilities in part of the house of which the tenant had exclusive possession was not material.

57. My Lords, in Westminster City Council v Clarke [1992] 2 AC 288 Lord Templeman was merely summarising the result of the earlier cases. It was natural, but unfortunate, that in doing so he repeated, at 299, the expression "essential living rooms", an expression which, as I have already explained, is misleading when taken out of its original context. In agreeing with him, the other members of the House cannot have intended to replace the statutory language by a rigid test which makes the availability of cooking facilities an essential precondition for security of tenure. This would place a gloss on the statute which is not justified by the language or purpose of the statute or the decided cases; and once again revive the heresy, twice previously rejected, that a room or set of rooms must possess "all the features essential to the conception of a dwelling house" in order to attract security of tenure. Moreover such a conclusion would be productive of great difficulties in future cases. It would be necessary to consider just what is sufficient to constitute "cooking facilities". The Victorian bedroom possessed an open grate; the modern one has a power point. What more is required? And why should even this much be necessary to attract security of tenure? The legislative purpose of the Rent and Housing Acts is to protect people in the occupation of their homes, not to encourage them to cook their own meals.

58. 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 only part of it. This 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 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.

60. After leave was granted to bring the present appeal, and with the agreement of the respondents, Mr Collins vacated Room 403 and moved to another room in their hotel. Accordingly there is no longer any lis between the parties and no remaining issue to be remitted to the county Court for decision. On 25 September 2000 the respondents notified the judicial office that they did not intend to take any part in Mr Collins' appeal to the House, and their Lordships are grateful to the amicus curiae for his careful and helpful argument.

United Kingdom House of Lords Decisions