Mesch and Mesch (Née Rivett) v Housing Committee

CourtRoyal Court
JudgeCrill, Bailiff and Jurats Le Boutillier and Orchard:
Judgment Date04 October 1990
Date04 October 1990
Crill, Bailiff and Jurats Le Boutillier and Orchard:

P. de C. Mourant for the appellants;

Miss S.C. Nicolle for the respondent.

Cases cited:

(1) Att. Gen. v. Brown, Royal Ct., January 16th, 1989, unreported.

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

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

(4) Cutner v. Green, 1980 J.J. 269, considered.

(5) Dash, In re, ex p. Australian Sporting Club (1947), 47 S.R. (N.S.W.) 283.

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

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

(8) 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.

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

(10) Hammond v. Hutt Valley & Bays Metrop. Milk Bd., [1958] N.Z.L.R. 720.

(11) Housing Cttee. v. Phantesie Invs. Ltd., 1985-86 JLR 96, considered.

(12) Hughes v. Architects' Reg. Council (U.K.), [1957] 2 Q.B. 550; [1957] 2 All E.R. 436; (1957), 101 Sol. Jo. 517, considered.

(13) Le Maistre v. Island Dev. Cttee., 1980 J.J. 1.

(14) Minister for Aboriginal Affairs v. Peko-Wallsend Ltd., [1987] L.R.C. (Const.) 822, considered.

(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, considered.

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

(17) Stepney B.C. v. Joffe, [1949] 1 K.B. 599; [1949] 1 All E.R. 256; (1949), 118 L.J.R. 561; 65 T.L.R. 176; 113 J.P. 124; 47(1) L.G.R. 189; 93 Sol. Jo. 119, considered.

Additional cases cited by counsel:

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

Blackall & Danby Ltd. v. Island Dev. Cttee., 1963 J.J. 273.

Bundy v. Housing Cttee., 1979 J.J. 99.

Duport Steels Ltd. v. Sirs, [1980] 1 W.L.R. 142.

Greenly v. Lawrence, [1949] 1 All E.R. 241.

Hamon v. Housing Cttee., 1962 J.J. 197.

Le Masurier v. Natural Beauties Cttee., Royal Ct. (1957), 251 Ex. 43, unreported.

Pinel v. Housing Cttee., 1970 J.J. 1545.

Ruban v. Att. Gen., 1987-88 JLR 204.

Simon v. Housing Cttee, 1964 J.J. 363.

Stringer v. Minister of Housing and Local Govt., [1971] 1 All E.R. 65.

Legislation construed:

Housing (Jersey) Law, 1949, art. 12: The relevant terms of this article are set out at page 280, lines 20-33.

Text cited:

de Smith's Judicial Review of Administrative Action, 2nd ed., at 267 (1968).

Housingapplication to purchase accomodationappealsunder Housing (Jersey) Law, 1949, art. 12(1) wide powers of appeal to Royal Court against decision of Housing Committee not limited to judicial reviewno complete rehearing but court able to hear fresh evidenceintervention possible if properly directed Committee could not reasonably have reached such decision, or if contrary to justice or common sense

Housingapplication to purchase accommodationconsideration of facts of individual caseCommittee has duty to consider detailed facts before imposing restrictive conditionsfailure to do so may make conditions contrary to justice or common sense

The appellants appealed against the Housing Committee's refusal to delete a condition it had attached to the use of property which the appellants proposed to buy.

The appellants intended to purchase a property comprising a main house, a flat above a garage and a staff cottage, access to which was through the garden of the main house and from which the main house could be entered. The cottage also overlooked the patio area forming part of the main house. Since they wished to provide a home in the cottage for an elderly relative who was not a Jersey resident, the appellants applied to the Committee requesting that it delete the condition it had previously imposed upon the occupancy of the cottage, restricting it to appropriately qualified Jersey residents. Upon the Committee's refusal to delete the condition, the appellants brought the present proceedings.

They submitted that (a) the wording of the Housing (Jersey) Law, 1949, art. 12(1) ("may appeal") was sufficiently wide to give the court an unfettered original jurisdiction to rehear the case, and it was not limited to carrying out judicial review of the Committee's decision; (b) alternatively, if the court's powers were more limited, the Committee had still failed to meet the more restrictive requirements of judicial review since it had failed to consider so many vital aspects of the applicationthe status of the occupants of the cottage at the time it had first imposed the restrictive condition, the extent to which the cottage was an integral part of the property, and the loss of privacy to the occupants of the main house if non-relatives occupied the cottagethat its decision was one to which no reasonable Committee could have come; and (c) the Committee had erred in deciding that if a property was capable of being occupied, it should be occupied by a qualified person, whereas it had an obligation to weigh this policy in the light of the facts of the original case.

The respondent submitted in reply that (a) art. 12(1) did not give the court power to conduct a complete rehearing but envisaged more restricted powers of judicial review, subject to the relaxation that the court could always interfere with the Committee's decision if it was contrary to justice and common sense; and (b) its primary obligation was to restrict occupancy to appropriately qualified residents and it had balanced this policy against the facts of the instant case by considering the issues submitted to it by the appellants, including that of privacy, so that it could not be said that its decision was unreasonable.

Held, allowing the appeal:

(1) By using the simple words "may appeal," the Housing (Jersey) Law, 1949, art. 12(1) provided a right of appeal against a decision of the Housing Committee in wide terms and without precluding the hearing of fresh evidence by the court. It did not, however, empower a complete rehearing but simply allowed the court to interfere with the Committee's decision if it was satisfied that no properly directed Committee could reasonably have made it, or if it was contrary to justice or common sense (page 281, lines 16-31; page 283, line 36 - page 284, line 5; page 287, line 38 - page 288, line 14).

(2) Although the Committee was entitled by the Law to impose a "qualified occupant" condition upon any property, it had in this case failed to explore crucial matters of fact which would have allowed it to balance the application of this protective housing policy with the circumstances of the individual application. In particular, it had not investigated the terms of the occupancy of the previous residents in the cottage, the extent to which it was an integral part of the property, or the probable degree of loss of privacy to the occupants of the main house if the cottage were not occupied by relatives of those occupants. It could therefore fairly be said that the Committee's decision was contrary to justice and common sense and the court would therefore order that the condition restricting the occupany of the cottage should be deleted (page 282, line 45 - page 283, line 7; page 289, lines 17-25).

CRILL, BAILIFF: Anneville Lodge ("the property") is in the Parish of St. Martin and is owned by the appellants. It consists of the main house, a cottage (the subject of this appeal) and a flat over a garage. All these units are joined together and abut on to a public road. The main access to the house and cottage is a driveway to the west of the three units. Access to the flat is by a door giving on to the public road.

Approaching along the drive from the west one comes first to the garage and flat, secondly to the cottage, and thirdly to the main house. Before one comes to the cottage and the main house one passes through two pillars and a wrought iron gate which leads from the drive into a courtyard which in turn is bordered on the north by the cottage and the main house, including the kitchen, on the south partly by an underground swimming pool and a section of the garden, and on all the other sides by the main house and swimming pool. One bedroom window of the flat over the garage overlooks the courtyard from the west and there is a door below that window which leads into a boiler and laundry room which is shared in common between the main house and the cottage. There is also a small enclosed area at first-floor level between the cottage and the main house which is accessible from both the cottage and the main house.

The cottage itself is quite small. It consists of a sitting room 12 ft. x 10 ft. 1 in., a kitchen, a bedroom on the ground floor, which in fact is part of an open area and includes the staircase leading to the first floor, one bathroom on the ground floor and one bedroom 12 ft. x 9 ft. 8 in. on the first floor. The area which was said to constitute a bedroom on the ground floor measures 9 ft. 1 in. x 9 ft. 1 in.

There is a passage which leads from the ground floor of the cottage to the public road. It passes a door which leads into the kitchen of the main house. At the end of the passage is another door which gives on to the public road and serves as a tradesman's entrance for the main house as well as for direct access to the main road from the cottage.

Attached to the main house is a large garden (which does not form part of this appeal save that it is used by the appellants and their family), a substantial part of which can be seen from the windows of the cottage, particularly the first-floor window. It is fair to say that the same applies to all the windows of the flat above the garage. The whole of the courtyard and the enclosed...

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