Housing Committee v Phantesie Investments Ltd

CourtCourt of Appeal
JudgeNeill, Clyde and Fennell, JJ.A.:
Judgment Date10 July 1985
Date10 July 1985
Neill, Clyde and Fennell, JJ.A.:

C.E. Whelan for the appellant;

W.J. Bailhache for the respondent.

Cases cited:

(1) Arbaugh v. Island Dev. Cttee., 1966 J.J. 593.

(2) Associated Builders & Contractors Ltd. v. Housing Cttee., 1965 J.J. 479.

(3) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680; (1947), 177 L.T. 641; 63 T.L.R. 623; 117 L.J.R. 190; 45 L.G.R. 635; 112 J.P. 55; 92 Sol. Jo. 26.

(4) Bundy v. Housing Cttee., 1979 J.J. 99, applied.

(5) Coated Steel of Europe Ltd. v. Housing Cttee., 1962 J.J. 179.

(6) Cottignies v. Housing Cttee., 1969 J.J. 1149.

(7) Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374; [1984] 3 All E.R. 935; [1985] I.C.R. 14.

(8) Fraser (D.R.) & Co. Ltd. v. Minister of Natl. Rev., [1949] A.C. 24 ([1948] UKPC 74); [1948] 4 D.L.R. 776; [1948] C.T.C. 297; (1948), 4 D.T.C. 521; [1948] 2 W.W.R. 1119; 92 Sol. Jo. 673.

(9) Fulham Borough Council v. Santilli, [1933] 2 K.B. 357; (1933), 149 L.T. 452; 49 T.L.R. 480; 102 L.J.K.B. 728; 29 Cox, C.C. 668; 31 L.G.R. 257; 97 J.P. 174.

(10) Godfrey v. Bournemouth Corp., [1969] 1 W.L.R. 47; [1968] 3 All E.R. 315; (1968), 67 L.G.R. 154; 132 J.P. 558; 112 Sol. Jo. 785.

(11) Greenly v. Lawrence, [1949] 1 All E.R. 241; (1949), 65 T.L.R. 86; 47 L.G.R. 87; 113 J.P. 120; 93 Sol. Jo. 60.

(12) Habin v. Gambling Licensing Auth., 1971 J.J. 1637.

(13) Hackett v. Housing Cttee., 1970 J.J. 1523.

(14) Hamon v. Housing Cttee., 1962 J.J. 197.

(15) Minister of Natl. Rev. v. Wrights' Canadian Ropes Ltd., [1947] A.C. 109 ([1946] UKPC 51); [1947] 1 D.L.R. 721; [1947] C.T.C. 1; (1946) 2 D.T.C. 927; [1947] 1 W.W.R. 214.

(16) Pinel v. Housing Cttee., 1970 J.J. 1545.

(17) Sagnata Invs. Ltd. v. Norwich Corp., [1971] 2 Q.B. 614; [1971] 2 All E.R. 1441; (1971), 67 L.G.R. 471; sub nom. Norwich Corp. v. Sagnata Invs. Ltd., (1971), 115 Sol. Jo. 406.

(18) Simon v. Housing Cttee., 1964 J.J. 363.

Legislation construed:

Housing (General Provisions) (Jersey) Regulations, 1970 (R. & O. 5444), reg. 1(1)(j), (k): The relevant terms of these sub-paragraphs are set out at page 105, lines 10-19.

reg. 2: The relevant terms of this regulation are set out at page 105, lines 36-40.

Housing (Jersey) Law, 1949, art. 10(1), as substituted by Housing (Extension of Powers) (Jersey) Law, 1969, art. 1: The relevant terms of this paragraph are set out at page 103, lines 7-14.

(2), as substituted by Housing (Amendment No. 4) (Jersey) Law, 1974, art. 2(b): The relevant terms of this paragraph are set out at page 103, lines 19-30.

(3): The relevant terms of this paragraph are set out at page 104, lines 15-22.

art. 12: The relevant terms of this article are set out at page 104, lines 25-35.

States of Jersey Law, 1966, art. 34: The relevant terms of this article are set out at page 102, lines 11-13.

art. 51: The relevant terms of this article are set out at page 102, lines 11-13.

Administrative Law—judicial review—Committees of States—committee to give applicant adequate reasons for decision reached—inadequate if reasons manufactured ex post facto or if merely uninformative recital of statutory powers without explanation

Administrative Law—judicial review—Committees of States—court to consider whether statute requires appeal from committee to be by judicial review or hearing de novo—if judicial review, test is whether committee's decision so unreasonable that no reasonable authority possessed of facts could reach it

The respondent company appealed against the decision of the appellant Committee to insert a particular condition in its grant of consent to the sale of a residential property to the respondent.

The respondent company wished to purchase residential property consisting of a house and a flat over a garage situated 40 yds. apart but so that the flat looked out over the garden of the house. It therefore applied to the Housing Committee for consent to the sale under art. 10(1) of the Housing (Jersey) Law, 1949, as amended, and reg. 2 of the Housing (General Provisions) (Jersey) Regulations, 1970, as amended, as was required where the purchaser of property was a company. Further, the company applied for the consent of the Committee under art. 10(2) of the 1949 Law to the occupation of the house by a named Jersey resident, and to the occupation of the flat by any persons. Article 10(2) required the consent of the Committee to occupation by persons other than those specified in regulations made under that Law. In fact, no regulations had been made specifying classes of persons permitted to occupy following acquisition by a company and consent was, therefore, in every case necessary. The company was thus seeking an unrestricted consent as to occupation of the flat.

The Housing Committee, acting through one of its officers, the Law and Loans Manager, granted its consent to the sale but imposed a number of conditions under the 1949 Law, art. 10(3). Of these, condition 4 stated that the flat should be let unfurnished to, or be otherwise occupied by, persons approved by the Committee as being persons of a category specified in certain housing regulations. These regulations listed the categories of purchaser-occupier to whom consent to sale would be granted if the purchaser were an individual but were invoked in this case by analogy, the purchaser being a company, to decide who would be permitted to occupy after sale. The company objected to the imposition of this condition and another and complained to the Committee. The dispute over the other condition was resolved informally but after the full Committee had reconsidered condition 4, it confirmed the decision of the Law and Loans Manager and eventually gave as its reason the view that there would be only a minimal loss of privacy to the house if the flat were let separately from the house.

The respondent company then appealed to the Royal Court under art. 12(1) of the 1949 Law on the ground that this condition was wholly unreasonable. The respondent submitted that (a) the release of the condition could not aggravate the housing shortage since the Committee could not prevent the company leaving the flat unoccupied; (b) there was little risk of aggravating the shortage because it was likely to sell another flat which it owned if unconditional consent were given; and (c) the Committee should consider the property as one unit so that once it had decided that the house was not of a type for which there was "an unsatisfied demand" then, treating the property as one unit because of the substantial loss of privacy which would be caused by letting the flat, it had no obligation to try and retain a part of it, namely the flat, for occupation by local residents.

The appellant Committee submitted in reply that (a) whether or not the flat was actually occupied, the duty of the Committee was to keep it available for local residents; (b) the possible availability of the company's other flat would not help local residents since it too was a property within the same regulation; and (c) the fact that one part of the property, namely the house, fell within the regulation did not affect the duty of the Committee with regard to another part, the flat and there was, therefore, no reason why they should not be treated separately, especially since the loss of privacy to the house consequent on letting the flat would be minimal.

The Royal Court found in favour of the respondent company as (a) the substantial loss of privacy which would result from letting the flat meant that the property should be treated as one unit and, therefore, (b) the flat should also be considered to be within the regulation with the result that the imposition of the condition was wholly unreasonable.

On further appeal, the Committee conceded that the express reasons it had given were inadequate but submitted that (a) it had made its decision after consideration of its own statutory obligations and terms of reference; (b) in any case the Royal Court had not made a sufficiently thorough examination of the premises to enable it to form an opinion on or review the decision of the Committee; and (c) the Royal Court had placed too much emphasis on what was in fact an irrelevant issue—even if lack of privacy might be a reason for allowing the flat to remain unoccupied, if it were to be occupied, it was not a reason why the class of occupants should not be limited as the Committee desired—and it was the extent of this limitation that was in issue, not whether there was to be occupation at all; and (d) the Royal Court was in error in treating the hearing as one in which it was entitled to substitute its own decision for that of the Committee. The respondent company repeated its submission that the decision of the Committee was unreasonable and submitted that if the Royal Court had substituted its own decision on the appeal, then the terms of art. 12(1) of the Housing (Jersey) Law, 1949 permitted it to do so.

Held, dismissing the appeal:

(1) The respondent company was entitled to a proper statement of the reasons on the basis of which the decision to impose the condition had been reached. The reasons offered to them before the hearings were either admittedly inadequate or constituted an uninformative recital of the statutory powers under which the Committee had acted, without any explanation of how it had applied the statute to the facts or what policy considerations it had taken into account. Once the hearing stage had been reached it was not open to the Committee to tender additional justifications for the decision without evidence that they had been considered in reaching its original decision and the decision could not, therefore, stand because the inadequacy of the reasons offered was such that the decision was to be treated as if no reasons had been given at all (page 112, lines 26-32; page 113, lines 6-11; page 114, line 41 -...

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4 cases
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