QUEEN'S BENCH DIVISION

Lord Parker or Waddington C. J., Salmon L. J. and Widgery J.

REGINA v. HUDDERSFIELD COUNTY COURT JUDGE
EX PARTE BEAUMONT ASHTON LTD.
October23, 1967

Landlord and Tenant - Local legislation - Business premises - Premises owned by corporation Tenants' application for grant of new tenancy - Whether conflict between local Act and Public Act - Huddersfield Waterworks and Improvement Act, 1876 (39 & 40 Vict., c. 1), ss. 40(7), 44,53 - Landlord and Tenant Act, 1954(2 & 3 Eliz. 11, C. 56), ss, 33, 34.

The Huddersfield Waterworks and Improvement Act, 1876, which makes provisions for certain markets and fairs purchased by the Huddersfield Corporation provides by section 40(7) that the corporation:

" may demand and receive tolls, stallages, and rents (not exceeding the tolls, stallages and rents specified in the Second Schedule to this Act) from persons selling or offering or exposing for sale cattle or articles in any markets or fairs in the borough, or using the buildings or conveniences in the markets or fairs By Schedule 2 (as amended by the Huddersfield (Amendment of Local Enactments) Order, 1954:

" From the occupier of each shop, according to the site and dimensions of the same; namely, for each and every superficial foot thereof inside measure per day.. 3d."

By section 53 (as amended by the Huddersfield Corporation Act, 1953):
" The corporation may from time to time let to any person any pen, shop, stall, standing or other convenience in any cattle or other market or fair, for any time not exceeding seven years, at such rent and on such terms as they think reasonable."
The Landlord and Tenant Act, 1954, provides by section 33:
"Where on an application under this Part of this Act the court makes an order for the grant of a new tenancy, the new tenancy shall be such tenancy as may be agreed between the landlord and the tenant, or, in default of such an agreement shall be such a tenancy as may be determined by the court to be reasonable in all the circumstances, being, if it is a tenancy for a term of years certain, a tenancy for a term not exceeding 14 years...
By section 34:

"The rent payable under a tenancy granted by order of the court under this Part of this Act shall be such as may be agreed between the landlord and the tenant or as, in default of such agreement, may be determined by the court. Tenants applied to the county court under Part II or the Landlord and Tenant Act, 1954, for the grant of a new tenancy of shop premises of which the Huddersfield Corporation were the owners. Neither party had sought a letting in excess of seven years nor a rent in excess of 3d. per foot. The corporation submitted that the Act of 1954 did not apply to the tenancy having regard to the provisions of the Huddersfield Waterworks and Improvement Act. 1876, with which it conflicted. The county court judge upheld that submission and refused to hear the tenants' application.

On the tenants' application for an order of mandamus requiring the judge to hear and determine the tenancy application.
Held, making the order, that the points of conflict between the two Acts pertained only to the determination by the court under the Act of 1954 of the terms of the new lease in default of agreement and not to the right to the new lease which was the first object of the Act of 1954, and were not such as to justify the contention that Parliament did not intend the later Act to apply to such a letting; that the maximum rent provided for by section 40 of the 1876 Act was directed to casual occupation in a market on a day to day basis and not with the grant of a lease for a term of years, the conflict between the maximum length of time provided for by section 53 of the Act of 1876 and section 33 of the Act of 1954 was of insufficient significance, and in fixing the rent under section 34 of the Act of 1954 a county court judge was not restricted to the written terms of a proposed tenancy, but must view them and their effect against the background of the law of the land, and have regard to special local legislation; and that, accordingly, the Act of 1954 did not deprive the local authority landlord of powers vested in it by its local legislation: section 33 of the Act of 1876 did not empower a local authority to dictate rent.

Quaere: Whether the county court judge would be restricted to ordering a new lease for not more than seven years.
Per curiam: The limit of 3d. per foot per day does not apply to a grant for a term of years.

APPLICATION FOR AN ORDER OF MANDAMUS.
The facts are stated in the judgment of Widgery J.

DAVID McNEILL Q.C. and HAROLD SINGER for the applicant tenants.
DEREK HODGSON Q.C. and GEORGE SPAFFORD for the respondent corporation.
LORD PARKER OF WADDINGTON C.J., Widgery J. will give the first judgment.

WIDGERY J. Mr. McNeill moves on behalf of Beaumont Ashton Ltd. for an order of mandamus directed to the judge of the Huddersfield County Court, requiring him to hear and determine an application made by Beaumont Ashton Ltd. under Part II of the Landlord and Tenant Act, 1954, for the grant of a new tenancy of premises known as No. I King Street, Market Hall, Huddersfield, of which the Huddersfield Corporation are the owners.

The premises in question are a lock-up shop in conventional form, and on their face are clearly business premises within the meaning of Part II of the Act of 1954. It is further conceded that all the procedural steps under that Act and its rules for the making of an application for a new lease have been taken by the applicants, and the reason why the judge declined to proceed with the matter or to hear the application was the view he took of a submission made by the landlords that the Act of 1954 did not apply to this tenancy in any shape or form having regard to earlier local legislation affecting such tenancies under the Huddersfield Waterworks and Improvement Act, 1876, as amended.

This matter requires a comparison of the local legislation with the Act of 1954 in order to see if they are in conflict, and I can conveniently begin by considering some of the local legislation. The Act of 1876 was designed to effect a number of purposes in Huddersfield, and amongst others, according to its preamble, it says that the corporation had by agreement: " . . .purchased the fairs and markets now held or authorised to be held in the borough", and accordingly one finds in the body of the Act a number of provisions concerned with these markets and fairs.

First, in section 39, there is a power in the corporation to construct and maintain certain works, and then in section 40 it is provided that: "With respect to cattle and other markets and fairs, and the providing of cattle markets, weighing-houses, and slaughter-houses, the corporation shall have the following powers";
a number are set out, and one comes to No. 7, whereby:

"They may demand and receive tolls, stallages, and rents (not exceeding the tolls, stallages and rents specified in the Second Schedule to this Act) from persons selling or offering or exposing for sale cattle or articles in any markets or fairs in the borough, or using the buildings or conveniences in the markets or fairs, or frequenting the markets or fairs, or using the weighing-house . . . When one turns to Schedule 2 as then enacted, one finds a detailed list of tolls and charges, the first of which is:

"From the occupier of each shop, according to the size and dimensions of the same; namely, for each and every superficial foot thereof inside measure per day - . 1d ".

That figure of 1d. was increased to 3d. by a statutory instrument in 1954. Other provisions of the Act dealing with the demanding of tolls and rents from premises comprised in the market are to be found in section 43, which allows the corporation to make bye-laws fixing tolls and rents within the prescribed statutory limits to which I have referred, and I refer to section 44 as being an example of a number of similar provisions where it is provided that:

"Every person who shall have been convicted of three offences against any of the bye-laws relating to cattle or other markets or fairs shall be liable after the third conviction to be forthwith removed and excluded from all or any of such markets or fairs in the borough by the market inspector or his assistants, and his or her tenancy (if any) of any pen, shop, stall or standing shall be thereupon determined, without prejudice to any remedy or remedies for the recovery of any rent that may be due".

I mention that in passing, because reliance is placed upon it by Mr. Hodgson as being a provision for forfeiture of tenancies in this market, which is in somewhat more stringent terms than commonly found in an ordinary lease. Section 53 is of importance:
'The corporation may from time to time let to any person any pen, shop, stall, standing or other convenience in any cattle or other market or fair, for any time not exceeding three years, at such rent and on such terms as they think reasonable".

It is to be noted that the limit of three years in that section was -increased to seven years by the Huddersfield Corporation Act, 1953. So that under those powers as they stand, it is contended that the corporation could grant a lease of a shop in the market for up to seven years at such rent as they thought reasonable, subject to the statutory maximum of 3d. per superficial foot per day.

By contrast, one looks at the terms of the Act of 1954. Section 23 deals with the tenancies to which Part II applies, and I need say no more about that except to mention that a lock-up shop used for the purposes of a shop is clearly prima facie within section 23. Sections 24 and 25 deal with the continuation of such tenancies until due notice is given to determine them, and prescribe the length of notice and the circumstances in which the notice can be given. Section 26 allows a tenant to apply for a new tenancy if he wishes to remain in possession and section 29 deals in detail with the function of the court if an application is made by the tenant.

It will be remembered that prior to this Act there was no general provision giving security of tenure to tenants of business premises, although a very limited right was given under the Landlord and Tenant Act, 1927, to a tenant who could prove that the value of the property had increased through the existence of goodwill which had attached during the tenancy. Section 29 provides for an application being made to the court, and section 30 details a number of grounds on which a landlord may refuse or oppose the grant of a new tenancy. None of this is relevant in this case, because the landlords have never at any time sought to decline to grant a new tenancy, so the only question which arose, assuming the judge had jurisdiction, was as to the term, and terms, of the tenancy and the rent.

Section 33 deals with the term of the new tenancy which may be granted under the Act:
" Where on an application under this Part of this Act the court makes an order for the grant of a new tenancy, the new tenancy shall be such tenancy as may be agreed between the landlord and the tenant, or, in default of such an agreement, shall be such a tenancy as may be determined by the court to be reasonable in all the circumstances, being, if it is a tenancy for a term of years certain, a tenancy for a term not exceeding 14 years ......"

One pauses there to note that the maximum term which section 33 contemplates is longer than the maximum term contemplated by section 53 of the Huddersfield Act of 1876 as amended. As to rent, section 34 of the Act of 1954 provides that:

" The rent payable under a tenancy granted by order of the court under this Part of this Act shall be such as may be agreed between the landlord and the tenant or as, in default of such agreement, may be determined by the court to be that at which, having regard to the terms of the tenancy (other than those relating to rent), the holding might reasonably be expected to be let in the open market by a willing lessor .... ".

The section then goes on to deal with certain matters irrelevant to this case which have to be taken into consideration. Finally in section 35 it is provided that:

"The terms of a tenancy granted by order of the court under this Part of this Act (other than terms as to the duration thereof and as to the rent payable there under) shall be such as may be agreed between the landlord and the tenant or as, in default of such agreement, may be determined by the court; and in determining those terms the court shall have regard to the terms of the current tenancy and to all relevant circumstances", The Act contains no special provision with regard to landlords who are local authorities. It contains some fairly complex provisions to deal with the situation which may arise when the immediate landlord is not the freeholder, and therefore may not have a sufficient reversion to sustain the grant of a new lease for 14 years, and the Act provides for a reversionary lease to be granted by others entitled to deal with that situation. It does not, so far as we have been referred to its provisions, contain any section dealing with a situation in which the landlord is the freeholder, and therefore has an estate capable of supporting a new lease, but has restricted powers either by virtue of his representative capacity or by reason of his being a local authority subject to special local legislation.

Those being the two codes which do, or may, apply to this case, the court has been invited to consider whether they are so much in conflict as to show that the second repeals the former, or to show that Parliament cannot have intended the terms of the later Statute to apply in view of those subsisting in the former.

During the argument in the court below considerable stress seems to have been laid on the fact that whereas under the Huddersfield Act of 1876 the rent was limited to a maximum of 3d. per superficial foot per day, yet under the terms of section 34 of the Act of 1954, the rent had to be fixed according to that which might be expected to obtain in the open market, and I think it is clear that the county court judge was much influenced by this difference in reaching the conclusion which he did. But in my judgment this is not in truth a difference between the local legislation and the Act of 1954, because, as I read the local legislation, and in particular section 53, the limit of 3d. per superficial food per day does not apply to a letting under a lease of the kind which is contemplated here.

It seems to me tolerably clear that section 40 which prescribed the limits, as I have already indicated, is dealing with the casual occupation of a market and its stalls and shops on a day-to-day basis, and is not really dealing at all with the grant of a lease for a term of years, made in formal form as contemplated by section 53. In my judgment, quite apart from the Act of 1954 the limit of 3d. per foot per day did not apply to such a lease, and consequently cannot present a point of conflict between the local Act and the Act of 1954.

The points of conflict relied upon, therefore, are really three. The first is an obvious one, namely the maximum length of term to which I have already referred. I feel quite confident that this difference, or conflict, if that is the right word, is not nearly of sufficient significance to justify the conclusion that Parliament cannot have intended the Act of 1954 to apply to lettings of this kind. The fact that local authority lettings are not generally excluded itself supports the view that tenants of local authorities were regarded as being as much in need of security of tenure as other tenants, and to suggest that Parliament must have intended to deprive them of those important rights merely by reason of this discrepancy in the maximum term capable of being granted seems to me to be wholly insufficient.

The second point of difference, or conflict, relied upon by Mr. Hodgson is concerned with the special provisions for forfeiture to which I have briefly referred, in particular to section 44 of the Act of 1876. The argument here is based on the terms of section 34 of the Act of 1954, and is to the effect that as under that section the county court judge fixing a rent under the Act of 1954 must have regard only to the terms of the tenancy other than those relating to rents, he cannot reflect in his judgment the existence of specially onerous provisions for forfeiture such as those contained in the local legislation and said to be applicable here. Here again I find myself unable to accept Mr. Hodgson's contention. I do not accept that under the terms of section 34 of the Act of 1954 the county court judge when considering the rent is restricted entirely to the written terms on the proposed tenancy. He must, as I see it, view those terms and their effect against the background of the law of the land so far as it is applicable to the particular case; and just as he must have regard to the general statutory provisions regulating the law of landlord and tenant, such as section 146 of the Law of Property Act, 1926, so in my judgment must he have regard to any special local legislation which affects the rights of the landlord and tenant, and which ought to be reflected in the rent payable.
Thirdly, it is said that the effect of the Act of 1954, if it be allowed to apply to this case, will be to deprive the local authority landlord of valuable powers vested in it by its local legislation, in particular to powers which appear from time to time, and notably in section 53 of the Act of 1876, whereby the local authority is entitled to charge such rent as it thinks reasonable, and to let premises upon such terms as it thinks reasonable. It is contended that these provisions give the local authority an advantage in that they can dictate, as it were, the terms of the tenancy and the rent to be paid, and that this privilege is lost if a reasonable rent fixed by the county court judge is to be substituted. in my judgment a fallacy exists in this argument in that quite apart from the Act of 1954 there was no question of the local authority being able to dictate a rent The rents, if any, fixed were to be fixed by agreement and the reference to the rent being such sum as the local authority think reasonable in section 53 is not made with the intention of giving them some dominant position in the negotiations, but is attributable to the fact that a local authority requiring statutory powers must have directions as to the terms upon which the powers are to be exercised. Those words relating to the local authority's view of what rent was reasonable are put in to indicate that no specific scale of rent was contemplated here, but that the local authority's powers extend to any letting at a rent which in all the circumstances it considers reasonable.

Accordingly, as it seems to me, although Mr. Hodgson has made every point that can be made in this case, the decision of the county court judge was wrong. I think it only right to say that he may have been affected by his view of the limits of rent imposed under the Act of 1876, a limit which for reasons which I have already given I do not think exists. But when one looks at the so-called points of conflict or difference either alone or cumulatively, it seems to me that they do not justify the assertion that Parliament must have intended that the Act of 1954 should not apply to this kind of letting. in the present case we have been told that neither party is seeking a letting in excess of seven years, and that neither party is seeking a rent in excess of 3d. per foot per day. What seems to have happened is that the figures put forward by the landlord and tenant respectively both came within those limits, but in the absence of

Agreement the tenant sought to have the matter resolved by the county court under the Act.
That being the case, I find it unnecessary to deal with the further point that may arise for decision in another case, namely whether the county court judge in circumstances such as these would be restricted to ordering a lease for not more than seven years. That some reconciliation of these two positions may have to be achieved if application is made for a lease in excess of seven years seems clear, but that is something which does not arise in the present case and I would express no opinion upon it.
For these reasons in my judgment the order of mandamus should go.

SALMON L. J. I agree.

LORD PARKER OF WADDINGTON C. J. I agree and I would only add a word in deference to Mr. Hodgson's argument. I think it is important to realise that Part II of the Act of 1954 does broadly speaking two things, first of all it gives a tenant of premises where a business is carried on a right, subject to certain powers of the landlord to object, to a new tenancy. Secondly, it provides that the terms of that new tenancy in default of agreement are to be determined by the court. I say that that, in my judgment, is important because such points of conflict, (and as Widgery J. has said there appears to be only one valid one, that in connection with the duration of the lease) such points of conflict as there are pertain solely to the second provision, namely a determination by the court of the terms of the lease in default of agreement. If here the conflict extended in some way to the first object of the legislation, namely the right to the new tenancy, then the position might, as I see it, be very different.

Solicitors for the applicant tenants - Prentis, Jackson & Jennings for Ellis Green & Co., Sheffield.

Solicitors for the respondent corporation - Sharpe, Pritchard & Co. for the Town Clerk, Huddersfseld.

Reported by Marcel Berlins Esq.

Landlord and Tenant Act 1954 - application of Pt. II - leases from local authority

[ Huddersfield Waterworks and Improvement Act 1876 (39 & 40 Vict. c. 6), ss. 40, 44, 53 (as amended); Landlord and Tenant Act 1954 (2 & 3 Eliz. 2, c. 56). Pt. 11.]

Where business premises are such as would normally be within the ambit of the Landlord and Tenant Act 1954, Pt. II, they are not excluded from such ambit merely by the fact that they are subject to local statutes which are, in minor respects, different from the 1954 Act. Monthly tenants of business premises owned by the Huddersfield Corporation applied to the county court for a new lease pursuant to the provisions of Pt. II of the 1954 Act; the judge declined jurisdiction on the ground tat the 1954 Act did not apply to the tenancy by virtue of conflicting provisions of the Huddersfield Waterworks and Improvement Act 1876 (as amended). S. 40 of the 1876 Act (as amended) provided for a rent limit of 3d. per square foot; s. 53 provided for the granting of leases; s. 53 (as amended) provided that such leases were not to exceed seven years in duration and were to be let at such rent and upon such terms as the Corporation thought reasonable; s. 44 provided special provisions for forfeiture. Held, (1) that the rent limit in s. 40 did not apply to leases granted under s. 53; (2) that the other provisions above mentioned did not mean that the 1954 Act was to be excluded; and (3) that an order of mandamus would issue to the county court judge to direct him to hear the application. R. v. HUDDERSFIELD COUNTY COURT JUDGE, ex p. BEAUMONT ASHTON (1967) 19 P. & CR. 62. D.C.