House of Lords
|Session 2001- 02
Publications on the Internet
|Judgments - Uratemp Ventures Limited v. Collins (Ap)
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
URATEMP VENTURES LIMITED
ON 11 OCTOBER 2001
 UKHL 43
LORD IRVINE OF LAIRG L.C.
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.
LORD BINGHAM OF CORNHILL
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  KB 144; Cole v Harris  KB 474; Kenyon v Walker  2 All ER 595; Winters v Dance  LJR 165; Baker v Turner  AC 401; Hayward v Marshall  2 QB 89; Goodrich v Paisner  AC 65; Marsh Ltd v Cooper  1 WLR 803; Parkins v Westminster City Council  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  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  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  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  AC 147, 158C-G.
17. The observation in Westminster City Council v Clarke  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.
LORD HOBHOUSE OF WOODBOROUGH
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  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.
The ordinary meaning of "dwelling".
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"?
The Parliamentary Franchise.
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.