Wragg & Ors v Surrey County Council [2008] EWCA Civ 19

[2008] EWCA Civ 19Case No B5/2007/0957B5/2007/0959 and B5/2007/0960
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GUILDFORD COUNTY COURT
His Honour Judge Reid QC
Claims Nos 5GU00112-5GU00120
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/02/2008
Before
LORD JUSTICE PILLLORD JUSTICE MOORE-BICKLORD JUSTICE RICHARDS
Between
(1) Andrew WraggRespondents(2) Suzanne HillRespondent(3) Robert CromptonRespondent(4) Stephen FryRespondentSurrey County CouncilAppellant
Claire Andrews (instructed by Surrey County Council) for AppellantJerome Wilcox (instructed by Messrs Courtney Campbell Cooney Solicitors) for RespondentsHearing Hearing date : 8 November 2007
JudgmentLord Justice Richards :
[1]Surrey County Council (“the council”) appeals against an order of His Honour Judge Reid QC granting declarations to the respondents that they were entitled to purchase the freehold of their homes under the “right to buy” provisions of Part V of the Housing Act 1985 (“the 1985 Act”). Permission to appeal was granted by the judge.[2]Three of the respondents (Mr Wragg, Mr Crompton and Mr Fry) were employed by the council as countryside rangers, with duties relating to the management and conservation of areas of common land in Surrey. The fourth respondent (Mrs Hill) is the widow of a countryside ranger who was similarly employed but who died after the commencement of the proceedings. The rangers all lived in properties owned by the council and provided to them under their contracts of employment. They all served notices under s.122 of the 1985 Act claiming to exercise the right to buy those properties under s.118. The council, in turn, served notices under s.124 denying that the rangers had a right to buy, on the ground that the properties fell within the exclusion in para 2(1) of schedule 1 to the 1985 Act (premises occupied in connection with employment). The rangers then brought claims in the county court under s.181 of the 1985 Act for the determination of the issue in dispute.[3]The position was potentially complicated by the fact that in 2002 the management of the countryside estate was transferred by the council to Surrey Wildlife Trust (“SWT”), coupled with a transfer of the rangers’ employment to SWT and the grant to SWT of a rent-free 50 year lease of the properties occupied by the rangers. All relevant parties agreed, however, that the lease to SWT should be ignored for the purposes of the proceedings and that SWT would be bound by the outcome. A further issue said to have been left on one side was whether the claimants were tenants or licensees; but it would seem that the argument proceeded on the assumption that they were tenants.[4]In addition to the four respondents to the present appeal, there were five other claimants in the county court proceedings: two were countryside rangers employed by the council, the other three were canal rangers employed by Hampshire County Council but resident in housing provided by Surrey County Council. Their claims were all dismissed and it is unnecessary to say anything further about them.

The statutory provision

[5]In order to exercise the right to buy, a tenant must be a secure tenant. Schedule 1 to the 1985 Act contains a number of exceptions to the general definition of secure tenancy in s.79. In particular, para 2(1) of schedule 1 provides that: “… a tenancy is not a secure tenancy if the tenant is an employee of the landlord or of – a local authority, … and his contract of employment requires him to occupy the dwelling-house for the better performance of his duties.” a local authority, …[6]The relevant provisions were first enacted in the Housing Act 1980, which contained in schedule 3 an exception identical to that set out above.[7]Although the provision has to be construed in its own right and within its particular legislative context, it is relevant to note that the language used in it is identical or very similar to that used in a long line of authorities concerning the circumstances in which occupation of property by a servant is to be treated as occupation by the master for the purposes of matters such as rating and taxation – so-called “representative occupation”.[8]For example, in Fox v Dalby (1874) LR 10 CP 285, which concerned a militia sergeant’s occupation of a house that had been built expressly for accommodation of persons looking after the stores and had been assigned to him by his commanding officer, it was held that the sergeant did not occupy the house as a tenant. Brett J stated the relevant principle as follows:
“that, where a person situate like the respondent is permitted … to occupy premises by way of reward for his services, or as part payment, the occupation is that of tenant; but that, where he is required to occupy them for the better performance of his duties, though his residence there is not necessary for that purpose, or, if his residence there be necessary for the performance of his duties though not specifically required, his occupation is not that of tenant” (pp.294-295, my emphasis). In the same case Lord Coleridge CJ quoted from a judgment of Tindal CJ to similar effect in an earlier case, referring to situations “in which the places of residence are selected by the government, and the officers or servants are required to occupy them, with a view to the more efficient performance of the duties or services imposed upon them”
(p.292, original emphasis).[9]In Glasgow Corporation v Johnstone [1965] AC 609, the House of Lords applied Fox v Dalby in holding that a house lived in by a church officer was occupied for rating purposes by the church’s congregational board which employed him.[10]The Glasgow Corporation case was considered in turn, and the same approach was followed, by the House of Lords in Northern Ireland Commissioner of Valuation v Fermanagh Protestant Board of Education [1969] 1 WLR 1708, in which Lord Upjohn stated the law in these terms (at p.1722):
“First, if it is essential to the performance of the duties of the occupying servant that he should occupy the particular house, or it may be a house within a closely defined perimeter, then, it being established that this is the mutual understanding of the master and the servant, the occupation for rating and other ancillary purposes is that of the master and not of the servant …. Secondly, there is the case where it is not essential for the servant to occupy a particular house or to live within a particular perimeter, but by doing so he can better perform his duties as servant to a material degree: then, in such a case, if there is an express term in the contract between master and servant that he shall so reside, the occupation for rating and ancillary purposes is treated as the occupation of the master and not of the servant.”
[11]In Langley v Appleby [1976] 3 All ER 391, Fox J examined those and other authorities at some length in determining whether the value of a house occupied by a police officer formed part of the officer’s emoluments for the purposes of income tax. He said that, although some of the previous cases as to representative occupation were concerned with franchise, some with rating and some with tax, they all raised substantially the same question. He concluded that: “the correct formulation is that of Lord Upjohn in Northern Ireland Commissioner of Valuation v Fermanagh Protestant Board of Education, namely that it must be established either(a) that it is essential to the performance of the duties of the servant that he should occupy the particular house or(b) that it is an express term of the employment that the servant shall occupy the premises, and that by doing so he can better perform his duties as a servant to a material degree” (pp.309h-410a, my emphasis).[12]That was the state of the law on representative occupation at the time when the legislation concerning the right to buy, including what is now para 2(1) of schedule 1 to the 1985 Act, was first enacted. Essentially the same approach has been taken in later cases: see e.g. Norris v Checksfield [1991] 1 WLR 1241, 1244D-E. I shall come back to the relevance of this line of authority when considering the proper construction of the statutory provision.

The contracts of employment

[13]I shall take Mr Wragg’s contract of employment as an example of the contracts entered into by the rangers. Mr Wragg began his employment with the council as an estate warden in 1984, but his initial contract of employment was replaced by a contract dated 25 February 1986 at the time of a reorganisation and his appointment as a ranger. The 1986 contract consisted of a printed standard form and a typewritten addendum. Para 1 appointed him to the post of ranger and gave his place of employment as follows:
“(i) Your base will be at Surrey Cottage, Scotsgrove Road, Chobham. (ii) Your designated area of operation will be Chobham Common, Stanners Hill, Bisley Group of Commons, Burners Heath and Thames Riverside Lands.”
The “base” referred to was the house provided for Mr Wragg to live in when he commenced his employment in 1984, which he has continued to occupy ever since. The designated area of operation has changed but still includes Chobham Common.[14]Para 3 specified the hours of work. The details are not needed. It suffices to note that the hours were flexible and that in practice all the rangers worked longer hours than specified in the contract.[15]Para 12 related to housing and was in these terms:
“It shall be a condition of your service, as a Ranger/Senior Ranger with the Surrey County Council that you will occupy, on a permanent and full-time basis, a property to be provided by the County Council. This property is provided for the better performance of your duties. This will be a service occupancy and not a service tenancy and your right to occupy will determine with your Contract of Employment. Payment for this accommodation is not a rent but an occupation charge and it is not intended to create a tenancy. You will be required to sign a separate letter giving details of the property and the conditions of occupancy. In the event of the termination of your employment with the County Council, you will be required and expected to surrender, immediately, such housing accommodation you then occupy.”
[16]Para 13 provided that a standard accommodation charge would be made irrespective of the size and type of property Mr Wragg was required to occupy. It was to be based on 10% of the maximum of the unenhanced salary scale for the post, “to recognise that you are expected to make yourself reasonably available, outside of normal working hours, to respond to enquiries and to undertake additional work in special circumstances”.[17]The other rangers’ contracts differed in their details, but their essential provisions were materially the same as those applying to Mr Wragg. Whilst the judge said at para 156 of his judgment (quoted below) that Mr Crompton’s contract did not specify his house as his place of work, the true position is that Mr Crompton’s contract did provide that initially his “normal base” was to be a house provided to him at Manor Way; and his subsequent move to a house provided to him at 2 Copse Edge took effect as a variation to the contract, including a variation to his “base”. Further, although there have also been changes to the terms of some of the other rangers’ contracts since the commencement of their employment, it is common ground that in each case the requirement to occupy a house provided by the council remained a contractual term at the time of service of the relevant notices under the 1985 Act.

The council’s policy

[18]There was evidence from a number of the council’s past and present officers concerning the council’s policy towards the provision of tied accommodation to rangers. They were Mr Derek Lloyd, formerly Head of Estates Strategy; Ms Lisa Creaye-Griffin, formerly Recreational Land Manager, with responsibilities for the ranger service and the countryside team; Mr Michael Dawson, Head of Countryside and Heritage; and Mr Stephen Evans, Valuation Manager. In my view there is sufficient in that evidence to make good, first, Miss Andrews’s submission not only that there was an overall policy to provide tied accommodation to rangers, but that the application of the policy was considered on an individualised basis. As Mr Lloyd put it at para 20 of his witness statement:
“The houses for Rangers were retained as tied-housing because the service department, Countryside Service, justified that they were still required for the service. If a property became vacant, the Countryside Service would have to justify placing another Ranger in that property. Each house and individual placement of a Ranger in that house would be looked at individually by the service.”
The judge observed that there were no documents demonstrating attempts to justify the provision of tied accommodation when new rangers were taken on. That may be so, but the judge did not reject the evidence that the question was looked at in each individual case.[19]The evidence also shows, as Miss Andrews submitted, that the council had in mind a number of considerations in maintaining and applying the policy. First, the council considered it desirable that rangers should live reasonably close to the sites for which they were responsible, so as to minimise the amount of time spent in travelling and to be more readily available in the event of emergencies or other contingencies on site. It is suggested by the respondents that travelling time is an irrelevance because the rangers worked in any event more than the number of hours specified in their contracts. In my view, however, the council could properly take the view that a reduction in travelling time was likely to result in an increase in productive hours worked even if the rangers were exceeding their contractual hours. It is also suggested by the respondents that emergencies were an irrelevance or of little weight because there was no contractual requirement to deal with them and they occurred very rarely. In my view, however, the terms of para 13 of Mr Wragg’s contract, quoted above, were wide enough to encompass such a requirement, and in any event all the rangers said that they would in practice respond to an emergency. The fact that emergencies were rare made it no less desirable that rangers should be reasonably close at hand if one did occur. Nor is the significance of the point affected by the possibility that, however close to the site his home might be, a ranger might in practice be away from home when an emergency occurred.[20]Linked to the issue of proximity to the sites was a concern about the difficulty of recruiting people for these relatively low-paid jobs in an area of relatively high-cost housing. If rangers were required to find and fund their own housing, they would be likely to live further away from the sites, which was considered disadvantageous for the reasons given. That line of reasoning is to be distinguished from one in which accommodation is provided as part of the overall remuneration package in order to compensate for a low salary: the council’s evidence emphasises that that was not the reason why tied accommodation was provided to rangers.[21]A second consideration was the need for the rangers to be able to store at home the tools and equipment provided for work at the sites. The evidence includes inventories which show that the tools and equipment involved could be substantial both in size and in quantity. Rangers also had the use, from time to time, of trailers and other items of plant which needed to be stored in a safe environment. A suitable place for storage could not be assured if rangers were free to choose their own housing.[22]A third, and to some extent related, consideration was that the house was to be the ranger’s “base”. This encompassed the use of the house not just for the storage of tools and equipment, etc., but also for the carrying out of administrative and clerical tasks, which have grown in importance over the years. The operational model was that the rangers carried out their work from home and that only very limited office space needed otherwise to be made available to them. They were provided at home with telephones, computers, filing cabinets and desks. Their telephone charges were paid, subject to reimbursement of the cost of private calls. A contribution was made to electricity costs. Initially, rates on the properties were paid; and when rates were replaced by the community charge for which the rangers were personally liable, their occupation charges were reduced.[23]A fourth consideration was that the house provided a public interface: the public would know that this was the ranger’s home and that he could be contacted there, and this improved the rangers’ ability to act in a liaison role as required by the council. This can also be seen to relate back to some extent to the issue of proximity: the closer the house was to the sites for which the ranger was responsible, the greater the likelihood of the public contacting the ranger at home in this way.[24]The council’s policy towards the provision of tied accommodation was the subject of internal consideration on a number of occasions. In one memorandum it was stated that those present at a meeting on 10 June 1994 had concluded that the justification for senior rangers and the countryside team manager residing in council accommodation for the better performance of their duties was “weak, almost to the extent of being non-existent”, and that:
“for the Rangers there was a marginally improved justification and this related to responsibility for their own area, public expectation and the call out for emergencies. In relation to public expectation, it is doubtful whether this facility justifies residing close to their place of work, the telephone being sufficient contact.”
[25]The judge referred to that memorandum when dealing with the evidence of Ms Creaye-Griffin, who had been present at the meeting. He did not, however, refer to the angry response from Mr Oakley, the then Head of the Countryside Service, who had also been present at the meeting:
“I do not accept that the justification for Senior Rangers and the Countryside Team manager residing in County Council accommodation for the better performance of their duties is ‘weak’ …. It cannot be weak, since it has already been tested. I am fully confident in the need for site Rangers and Team to be resident ‘on the job’ since … I run a Service which is ‘open all hours’. By no reasonable judgment is there only ‘a marginally improved justification’. The comparison with social workers and emergency planning officers also naively misses the point: how many of them are regularly on call in a specific area, have to maintain good relations with local residents, and find it necessary regularly to turn out early in the morning or late at night to do things like fire watching, pest control, repairing broken fences, and chasing off undesirables? ….”
[26]The judge also referred to a tied housing review document prepared in September 1998 by Ms Creaye-Griffin and others. In the context of the possible transfer of the countryside estate to a charitable trust, the document stated:
“(iii) … Initially, the view taken is that all tied housing should be relinquished except for the Ranger homes on the four major open spaces [which, I interpolate, included Chobham Common, for which Mr Wragg was responsible]. (iv) there would be a problem concerning the storage of materials at the other sites as it has been traditional for materials/machinery/equipment to be stored at the Rangers’ homes. However, there is scope at the four properties listed above as well as at other locations around the County. (v) it is considered that there is no justification for housing the following staff: … those Rangers whose homes are not part of the Estate they manage.”
As the judge also observed, the views expressed in the review document were not accepted by those to whom it was addressed. those Rangers whose homes are not part of the Estate they manage.”[27]The judge also referred to parts of the evidence of the other council officers to whom I have referred. But he expressed no conclusions in relation to the council’s policy. As I have already indicated, I take the view that the evidence established the existence of the policy and of the essential considerations on which it was based, though there were clearly differences of view within the council about the justification for the policy and it may well be that the justification for it weakened over time.

The factual position of the individual rangers

[28]The judge dealt at some length with the factual position of each of the rangers. He gave brief details in introductory sections on the claimants and the properties, which I can pass over without giving rise to significant omission. Then, in a later section dealing more fully with the facts, he considered the rangers in alphabetical order, as set out below. A few additional findings of fact may be derived from the section setting out his conclusions, relevant passages from which are set out later in this judgment.[29]When Mr Crompton was first employed his responsibility was for various parcels of land along the Hog’s Back and for Puttenham Common. In 1991 Chinhurst Hill was added. He was housed at Onslow Village, in Manor Way. There was a subsequent change in responsibilities and accommodation. This and other matters are described by

the judge as follows:

“75. … At the end of 1996 he had taken charge, instead, of Newlands Corner, Silent Pool and St Martha’s. His formal transfer took place in January 1997 when he was moved to 2 Copse Edge in Burpham …. 76. This was described in an internal memorandum from Ms Bridges, the personnel officer, to Mr Sayce, the Council’s recreational land manager for West Surrey, as being ‘the house allocated to the area being the nearest to the area’. It had previously been occupied by Mr Barnett, the ranger who previously had responsibility for the area. Mr Crompton was sent a letter by Mrs Bridges dated 14 January 1997, which confirmed that he would be required to occupy 2 Copse Edge for the better performance of his duties ‘as the Area Countryside Ranger now responsible for the management of Newlands Corner, Silent Pool and St Martha’s’. The letter noted he would be located at 2 Copse Edge in order to be closer to these areas. There is no suggestion that Mr Crompton was given an option as to whether or not he wanted to move. The house is some 3 to 4 miles from the sites for which he is responsible, and Mr Crompton accepts that it has ‘been a convenience for [his] job’ but not that it has been directly responsible for the better performance of his duties since other rangers are able to carry out the same functions without being housed. 77. Mr Crompton has equipment provided to him, which he occasionally keeps in the Landrover with which he is provided, although he has been advised not to for insurance reasons. The equipment can be kept in an outbuilding at his house overnight. He has space at his house at which he can store a trailer, which he sometimes does, and he sometimes also keeps signage at his house, though he tries not to. He has a computer, printer, desk, telephone and filing cabinet in an office at his home. He keeps a slide carousel in his house. He accepts it is his only workplace when he was undertaking of this type work [sic], but says that the vast bulk of his time is spent on site and he regards the sites under his stewardship as his real place of work. In common with the other rangers he is provided with a mobile phone, which he can also use for personal calls. He is expected to respond to voice messages as soon as possible and leave alternative numbers on his outgoing message when he is on leave. The public has access to his mobile number from SWT notice boards, its website and site leaflets. His e-mail address is also available in the same way. 78. So far as emergencies are concerned, he takes the view that his presence would be of little assistance. The Fire Service has keys to gain access to council sites, and although it might be … advantageous for him to be around to give assistance to the Fire Service by advising on the best route to get access to a seat of fire he can think of little else … which would assist, even if he was on duty at the time an emergency occurred and was not at a different site.”
[30]Mr Fry moved to his present house at Hempstead in 1994. He had asked to move to a more rural location and had been shown two other houses before agreeing to the move. The judgment continues:
“79. … He has found his job becoming more managerial with regular contacts with parish councils, borough councils, the police and fire brigade, local groups, contractors, service companies and Government agencies. Although he still does litter picking and other practical estate management work, he has found the amount of time he can devote to it substantially reduced. He had a 10-mile drive from Hempstead to Wisley and an 8-mile drive to Chobham Common. In addition from 1994 to 2002 he had responsibility for Pool End Lake, near Shepperton, some 20 miles away. 80. He regards his home as being of little use in assisting the better performance of his work: he instanced an emergency at Christmas 2005 when a rider suffered an accident on Chobham Common. He was on holiday at the time but was contacted by mobile phone and was able to drive over and assist. His vehicle was able to get to the site of the accident, but it was fortuitous that he was able to attend and he was some considerable distance away from the scene. In general there might be instances where his presence on site was helpful (e.g. to deter an incursion of travellers, in the case of a fire or if a fallen tree blocked a track) but this would be fortuitous since he has no obligation to be on call except during his working hours, and then he would be contacted by mobile phone rather than at home. 81. In general his contact[s] with the public or other agencies inn the course of his employment are either face to face on site or at meetings: never at his home. He uses a small room at his home for his office work and he has a computer, desk, printer and telephone supplied by his employers.”
[31]Mr Hill was described as “something of a loner” who had a rare hereditary complaint which made him suffer from headaches and migraines if he travelled more than about 15 miles from his home and which took a couple of days to settle down. This prevented his attendance at rangers’ meetings unless they were arranged for his benefit near to his home. The council had accepted the situation. Mr Hill had remained in the same property throughout, though the Council had proposed a move in 1985. The judgment continues:
“87. Mr Hill’s area of responsibility comprised five different sites, the nearest of which was some 3 to 4 miles from his home. The most remote, Shabden Park, was some 12 to 14 miles away. He had little contact with other rangers, but could be contacted at home on his landline by the Council. He was offered a computer but declined it as he had his own, though he was provided with a desk. He used his own tools, which he kept for many years, some in the back toilet, some in the loft and some in the Land Rover provided by the Council. When Mr Hill was employed he was originally employed as a warden … but (after initial resistance) he converted to ranger status on 1 April 1987 …. 88. In common with other rangers Mr Hill was provided with a mobile phone in 1994 or 1995. This replaced the unreliable radio system. He was very seldom contacted by members of the public by telephone. His contact with them was almost invariably face-to-face whilst he was out and about. He spent a great deal of time, far more than his contractual hours, working in the open air, and he was seldom around at home. 89. Although his contract made mention of his obligation to … organise and carry out appropriate procedures to prevent and deal with site incidents [or] emergencies, he was … only aware of three emergencies during more than a quarter of a century working for the council. The first emergency was helping local land owners clear fallen trees after the storm of October 1987. The second was on 7 May 1998, when there was a serious accident involving a Land Rover and a horse and rider on Staffhurst Wood Road. By the time he had been notified of it and had arrived at the scene, police and paramedics had dealt with the injured rider and he was left with the help of two friends to find the injured horse, which subsequently had to be destroyed. The last emergency was in the early summer of 2005, when an ‘unknown animal’ was sighted to the west of the Hill Park Estate. He happened to be at the scene (rather than being called out) and the ‘unknown animal’ turned out to be a hiker [who] was camping overnight on the North Downs Way.”
As Miss Andrews demonstrated, the judge’s description of that last emergency is not an accurate summary of the evidence, but nothing turns on the point.[32]In relation to Mr Wragg, the judgment first described the commencement of his employment as a warden for Chobham Common in 1984, the provision of his accommodation at Surrey Cottage at that time and the nature of his work as a warden. It then referred to the switch from warden to ranger in 1986, with responsibilities that extended initially to sites in addition to Chobham Common, though responsibility for those other sites had since passed to others. In relation to the contractual documentation, the judge accepted Mr Wragg’s evidence that he signed the relevant form in February 1986 because he wanted to keep his job and have somewhere to live. The judgment continues:
“93. When he became a ranger his role changed considerably. Over time he became increasingly involved in management planning, policy-making and public liaison. He was increasingly identified by the public as a site manager and the council’s representative on the ground. He now has to undertake work such as writing a 10 year management plan of the common, submitting grant applications, and other project management. 94. In the 1980s he did not have a telephone answering machine or a mobile phone or a radio. The public contacted him either by telephoning him at home, or coming to his door during evenings or on his days off, or by stopping him on site. Sometimes he was stopped in the street or in local shops, in his free time. This was usually up [sic] with requests or enquiries either about minor works which needed to be carried out or offering information about problems such as motorcyclists on the Common. By his own choice he did not have a car (as opposed to his work vehicle) and his social life was therefore limited to the immediate area with the result he is perhaps better known in his locality than some other rangers in theirs. From 1986 onwards, as he became increasingly involved in management planning, policy-making and public liaison the public saw him more as the site manager and as such responsible for policies of the Council. He was, in particular, the subject of considerable anger over the Council’s inability to deal with the problem of gypsies on the common in the period 1990 to 1992. As a result from 1990 onwards he repeatedly told his line managers that he was under stress and asked to be moved to housing outside Chobham Village He was told that he would not be moved and the then countryside officer told him that ‘The County had him where they wanted him’. 95. In 1999 his work was suffering because of the stress he was under and disciplinary proceedings were threatened. He again asked to be re-housed and Mr Sayce, the Countryside Estates Manager, insisted he saw the Council’s occupational therapist. Having seen the therapist, Mr Wragg has developed a number of techniques to enable him to cope with stress. Mr Sayce also attempted to find other accommodation for Mr Wragg. He found a property at West End, but it was not practicable for the Council to … use it for Mr Wragg, because of the work needed to bring it up to standard, in particular in installing central heating. 96. Mr Wragg has always been supplied with a motor vehicle for his work …. He has always had to travel to and from work by vehicle. The nearest point of access to his main work site at Chobham is 3 miles, a journey which takes between 10 and 30 minutes, depending on the time of day and the amount of traffic in the centre of Chobham. 97. When he started work for the Council he had a landline telephone but no answering machine. In the early 1990s, in common with the other rangers, his vehicle was fitted with the unsatisfactory radio system, but that has now been replaced by a mobile phone. He prefers members of the public to contact him on his landline and leave a message on his answerphone or to contact him by e-mail, unless the matter is urgent. The signboards for the Chobham site now have his mobile telephone number on them, but the boards tell the public to telephone the fire brigade or emergency services in the event of the discovery of a fire. Despite the fact that his number is on the notice boards, he is not contacted by members of the public on his mobile phone. So far as emergencies are concerned, the last time he was involved with one was on election night, 2 May 1997, when someone who knew him came round to tell him a fire had broken out. 98. Mr Wragg usually works from 9 a.m. to 6 p.m., but will work additional hours if required …. He has been provided with office equipment at home comprising a computer with e-mail/internet access, a desk and a filing cabinet. So far as storing equipment is concerned, he usually keeps tools and equipment required to his work in his vehicle. He does not have room at his home to store any materials …. 99. Although he does spend some time doing administrative work or working at his computer at home, this work has to fit round his basic site work. During his working hours he will be on site unless he is attending a meeting. He has never regarded his home as being his place of work.”

The judge’s reasoning

[33]At the conclusion of his discussion of para 2(1) of schedule 1 to the 1985 Act,

the judge said this (at para 57):

“In summary the requirement is that (a) there is a term in the contract of employment that the employee lives in a particular property, (b) that the requirement (express or implied) is so that the employee can better (i.e. efficiently) perform some of his contractual duties, and (c) in fact the occupation does enable the employee efficiently to perform those duties.”
[34]The repeated reference to “efficient” performance of the employee’s duties picked up a view previously expressed (at para 52) that “the word ‘better’ in this context is not used as a true comparative but rather as a synonym for ‘proper’ or ‘efficient’”.[35]In the section setting out his conclusions,

the judge adopted a different formulation (at para 152):

“For present purposes the starting point is that there is a contract of employment. It is therefore irrelevant that but for the provision of the house the employee would not have entered into a contract of employment. The next point is that there must be a requirement that the employee occupies the dwelling-house. The third point is that on the true construction of the contract in its factual matrix the requirement must have been for the better performance of his duties in the sense of ‘efficient performance of some part of his contractual duties’ rather than ‘better than if he lived in some other property’.”
[36]That formulation appears to treat the matter as one of construction of the contract, albeit in its factual matrix, rather than as one that also involves an issue of fact. Nevertheless the judge went on to deal with the matter as if it were largely one of fact. He said that it was a relevant factor that the rangers had signed agreements by which they agreed that they were required to occupy their houses for the better performance of their duties; but in his view it was not a major factor: the documents appeared all to have been presented “more or less as a matter of housekeeping” and there was no suggestion of any attempt to explain their nature or effect. In considering whether the requirement to live in accommodation provided by the council was for the better performance of the employee’s contractual duties, it was necessary to take into account “the Council’s obligations and the ends it is seeking to achieve in relation [to] local requirements, the welfare of the local people it serves, the priorities necessitated by other demands on their resources, and the extent of those resources”. The location of the property was a major factor in determining whether the occupation enabled better performance of the contract, but equally the nature of the property might enable better performance (for example by enabling the storage of equipment at home or providing office space).

The judge then considered the individual position of each of the rangers, as follows:

“155. … The clearest case is that of Mr Hill who cared for a number of different sites. He would not have applied for or taken the job but for the offer of housing. The terms of his employment required him to occupy the house for the better performance of his duties but there was nothing about the house which assisted him in doing his work efficiently once he had the job. None of the sites he cared for were in close proximity to where he lived. He seems to have done little in the way of office work and there is nothing to suggest that his home was used as a point of contact on any regular basis or at all. In these circumstances I do not see how it can properly be said that he was required to occupy the house for the better performance of his duties. 156. Mr Crompton is in a somewhat similar position. Initially he had occupied a house in Manor Way, which runs from the A3 to the A31 on the south-west outskirts of Guildford. He was then moved some 5 miles to Burpham, on the north-east of Guildford. This more or less coincided with his move from having charge of the sites to the south-west of Guildford to those to the south-east of Guildford and the house was the nearest to the sites he was then taking over. The new house is clearly more convenient (or at any rate less inconvenient) for access to his current place of work than Manor Way. His contract of employment makes no mention of his house as being his place of work. He drives several miles to and from work up to Newlands Corner and the nearby sites. He has had a mobile phone for all the time he has been living in Burpham. Communication with him is mainly by mobile or e-mail. It is his mobile number and e-mail address which is available to the public and there was nothing to suggest that members of the public are aware of his home address or ever approach him there. He does office type work at home, having a computer, desk and filing cabinet there but regards his work place as being out on site. None of this seems to indicate that the occupation of the house as a matter of the true construction of the contract in all the circumstances is required for the better (or proper) performance of Mr Crompton’s duties. I take the view that his occupancy does not fall within the exception. 157. Mr Fry initially worked at Chobham Common and when he was given accommodation in St Martin’s Close he was some 10 miles away from his work. When he moved [to] Hempstead he [was] working at Chobham Common (some 8 miles away), Wisley and Ockham Commons (some 10 miles away) and 20 miles from Pool End Lake at Shepperton. His contract is for set hours, though as indicated above he has attended on an emergency ‘out of hours’. There is no evidence that any member of the public ever attends at his home: contact is either face to face on site or by telephone by mobile or on his landline. He does his office work at home (and is encouraged to do so) and has a room he uses as his office, but regards this as something he could do in that house or anywhere else. As in the case of Mr Crompton it is difficult to see how occupation of this property remote from Mr Fry’s substantive places of work could be regarded as required for the better performance of his work. In my judgement in this case, as in the cases of Mr Hill and Mr Crompton, Ms Creaye-Griffin was accurate in her 1994 view that the case for the ranger being required to occupy the house for the better performance of his duties was only ‘a marginally improved justification’ above being ‘weak, almost to the point of non-existence’. … 163. The last of [the] countryside rangers is Mr Wragg. He has been at his house in Chobham since 1984. It is some three miles from the nearest access point to Chobham Common at Burrow Hill Green, a drive which can take some time depending on the state of traffic in Chobham High Street. His remit has also included other areas at Bisley (close by) and the Thames Riverside lands (a fair way away). Because of his limited social life and the length of time he has been around he is perhaps better known than some other rangers, and he was the recognised face of the Council in relation to a number of controversial issues, as a result of which he has suffered from work-related stress. It is notable that when matters came to a head in 1999 Mr Sayce was prepared to allow him to move out of the village to West End, a move that came to nothing because of the cost of making the property at West End habitable. This has to be contrasted with the earlier reaction in 1990 when he was told that the Council had him where they wanted him. 164. Although this property is one of the four that it was recommended in 1998 should be retained I have had difficulty in seeing how Mr Wragg’s occupation enables him better to perform his duties. Unlike the cases of Mr Boddy and Mr Havler [two rangers whose claims were dismissed] he is not, as it were, on the doorstep of the area for which he is responsible. There is nothing special in the way of storage facilities at or adjoining the house: indeed his evidence suggested that such tools and so on as are brought home are kept in his vehicle. Mr Sayce’s preparedness to let him move to West End (further away from his commons) also suggests that the Council no longer required his occupation of the house for the better performance of Mr Wragg’s duties. On balance therefore I take the view that Mr Wragg’s occupation of Surrey Cottage does not fall within the scope of the exception.”

The proper construction of the statutory provision

[38]The primary argument advanced by Miss Andrews for the council is that the wording of para 2(1) of schedule 1 to the 1985 Act (“his contract of employment requires him to occupy the dwelling-house for the better performance of his duties”) looks only to the terms of the contract of employment, so that the exception applies if the contract requires the employee to occupy the dwelling-house and states that the requirement is for the better performance of the employee’s duties. Since all the contracts contain such wording, she submits that the exception clearly applies in the case of each of the rangers. She accepts that the position would be different if the contract were shown to be a sham and not to represent the true intentions of the parties, but sham was not alleged by the respondents or found by the judge. The respondents did advance a contention described by the judge as “an assertion that on the true construction of the contracts of the employment in their respective factual matrices the label in the contract that the requirement of occupation is for the better performance of employees’ duties is a mis-labelling” (para 44), but the judge distinguished this from an allegation of sham; and it is submitted that, like sham, a case of “mis-labelling” could succeed only if the true intention of the parties was different from that stated in the contract, which again was not found by the judge.[39]The judge did not reach a clear-cut conclusion on Miss Andrews’s primary submission. As I have already indicated, there are passages in his judgment which treat the matter simply as one of construction of the contract, but the concluding part of the judgment seems to approach the question whether the requirement on the employee to occupy the dwelling-house was “for the better performance of his duties” largely as an issue of fact.[40]For my part, I would reject the construction of the statutory provision advanced by Miss Andrews. In my judgment, the provision is to be construed as laying down two distinct conditions: first, that “his contract of employment requires him to occupy the dwelling-house”; secondly, that the requirement is “for the better performance of his duties”. The first condition looks only to the terms of the contract: the question is simply whether the contract contains such a requirement or not. The second condition, however, raises an issue of fact outside the contract: the question is not whether the contract states that the requirement is for the better performance of his duties, but whether the requirement is in fact for the better performance of his duties.[41]The reasons why I have reached that conclusion are these:(1) First, it is in line with the case-law on representative occupation referred to at paras 6-11 above, the general tenor of which is to draw a clear distinction between the contractual requirement to occupy and the factual question whether this is for the better performance of the employee’s duties. Although the present context is different and concerns the construction of a specific statutory provision, it seems to me that the legislative choice of language identical to that used in Fox v Dalby and to the same effect as that used in the later cases evidences an intention to take essentially the same approach as in the case-law.(2) The legislative policy behind the statutory provision must be to deny an employee security of tenure and the right to buy only in those cases where there is a real link between the requirement to occupy the property and the performance of the employee’s duties, such as to justify the employer recovering the property for use by subsequent employees when the present occupier’s employment comes to an end. It would be all too easy to frustrate that policy, and to deprive an employee of the right to buy in a case where there was no genuine justification for doing so, if the application of the statutory provision depended simply on the language of the contract. By imposing a requirement to occupy and stating in the contract that the requirement was for the better performance of the employee’s duties, the employer would place upon employee the burden of proving that the contract was a sham if he wished to exercise the right to buy. That would be a highly unsatisfactory position.(3) Conversely, in a case where all were agreed that the requirement to occupy the dwelling-house was in fact for the better performance of the employee’s duties, it would be surprising if the statutory exception applied only if express words to that effect had been included in the contract of employment.[42]It is not enough to conclude that the expression “for the better performance of his duties” raises an issue of fact. What is the relevant issue of fact? One possible construction of “for” is that it looks to the subjective intention or purpose of the parties in including the requirement in the contract. That might be thought to derive some support from Fox v Dalby, cited at para 7 above. Brett J, in using language identical to that adopted in the statutory provision, appears to have had in mind the purpose for which the requirement was imposed: thus his rider that the residence need not be necessary “for that purpose”. Likewise Lord Coleridge CJ referred to the requirement to occupy “with a view to” the more efficient performance of duties or services. Similar language in terms of purpose is to be found in some of the other authorities examined by Fox J in Langley v Appleby (see para 10 above).[43]In my judgment, however, it cannot have been the legislative intention that the question should depend purely on the subjective intention or purpose of the parties. That would run counter to the need, in terms of legislative policy, for a real link between the requirement to occupy the property and the performance of the employee’s duties. It is also evident that the later authorities on representative occupation did not read Fox v Dalby and other such cases as laying down a subjective test. Thus, for example, the formulation adopted by Lord Upjohn in Northern Ireland Commissioner of Valuation v Fermanagh Protestant Board of Education and accepted as the correct test in Langley v Appleby (paras 9-10 above) focuses on whether the requirement enables the employee better to perform his duties; yet no inconsistency appears to have been perceived between that formulation and what was said in Fox v Dalby.[44]In the light of those considerations I take the view that the statutory provision should be construed as including an objective test: “for” is to be read as “to enable”, the essential question being whether the required occupation of the property is intended to promote, and is reasonably capable of promoting, the better performance of the employee’s duties.[45]One may compare, by way of analogy, the approach taken in R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995] 1 WLR 386. The statutory provision under consideration in that case empowered the Secretary of State to furnish assistance “for the purpose of promoting the development … of a country outside the United Kingdom”. The court held that the “purpose” of assistance was an objective question to be determined by the court. As Rose LJ put it (at p.401):
“Whatever the Secretary of State’s intention or purpose may have been, it is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.”
The court found that there was no sound economic argument for the contemplated development and concluded on the evidence as a whole that, notwithstanding the Secretary of State’s evidence as to his subjective intention, his conduct was not within the statutory purpose and was unlawful. The statutory language and context in the present case seem to me to tell even more strongly in favour of an objective test than in ex parte World Development Movement.[46]Thus the court will look at all the circumstances in deciding whether the required occupation is for the better performance of the employee’s duties. Those circumstances will include the reasons given for the imposition of the requirement to occupy the property and the considerations taken into account in imposing that requirement, scrutiny of which is likely to be particularly important in determining whether occupation of the property was reasonably capable of leading to better performance of the employee’s duties. It will also be relevant to consider the factual history in so far as it casts light on whether occupation of the property was or was not reasonably capable of leading to better performance of the employee’s duties. But I would stress that the test is not whether, in the particular case, the requirement to occupy the property has in fact led to the better performance of the employee’s duties. Thus, if occupation of the property was reasonably capable of leading to better performance, it is immaterial that the particular employee has not used the property in such a way as to produce that better performance in practice.[47]The statutory provision is expressed in the present tense (“… the tenant is an employee … and his contract of employment requires him to occupy …”) and it follows that the contractual requirement must exist, and occupation must be for the better performance of the employee’s duties, as at the date when notice is given under the 1985 Act. But if the condition was satisfied at the time when the contractual requirement was first imposed, then in the absence of a relevant contractual variation or a fundamental change in the underlying factual circumstances it is difficult to see why it should not continue to be satisfied thereafter; and equally, if the condition was not satisfied at the time when the contractual requirement was first imposed, it is difficult to see how it could come to be satisfied subsequently in the absence of a relevant contractual variation or a fundamental change of circumstances. I would, however, expect it to be considerably easier for an employee to rely on a change of circumstances in his favour than for an employer (who has the burden of proving that the statutory exception applies and the duty to make terms of employment clear) to rely on a change of circumstances as operating to deny an employee the right to buy under the 1985 Act.[48]I have referred throughout to the “better” performance of the employee’s duties, which is the language of the statute. The judge equated “better” with “proper” or “efficient” performance of the duties. In my view he was wrong to do so. “Better” is a true comparative: the question is whether the requirement to occupy the house is for the better performance of the employee’s duties as compared with the position if there was no requirement to occupy. If one were to talk in terms of efficiency, then the equivalent would not be “efficient” but “more efficient”, which indeed is another expression used in the authorities on representative occupation. In this context, however, I see no reason for departing from, or putting any gloss on, the statutory language.[49]Before moving on, I should also mention, in order to dismiss, an argument by Mr Wilcox for the respondents to the effect that the requirement must be necessary for the performance of the rangers’ duties and that mere convenience is not enough. Mr Wilcox referred to Hughes v Greenwich London Borough Council [1994] 1 AC 170, 176, and to an unreported judgment of the Court of Appeal in Surrey County Council v Lamond (16 December 1998). The passages cited from those cases, however, relate to the implication of a contractual requirement as to occupation. I can readily accept that a test of necessity must be satisfied before the court will imply such a term. But the present case concerns an express term and the different question whether the requirement expressly imposed is for the better performance of the employee’s duties. Nothing in the language of the statute or in the authorities on representative occupation suggests that necessity is a relevant factor in such a case.

Application of the statutory provision to the facts

[50]It is at best unclear what construction of the statutory provision the judge was purporting to apply, and he fell clearly into error in equating “better” with “efficient”. In those circumstances I do not think that his conclusions can stand. I therefore propose to consider the matter afresh, applying my preferred construction of the provision to the facts as found by the judge and the other evidence before him.[51]On the evidence, I accept that the contractual requirement to occupy the house provided by the council was imposed in each case pursuant to the council’s policy as described above (paras 18 et seq.). Like the judge, I would place relatively little weight on the fact that the contracts state in terms that the requirement is imposed for the better performance of the rangers’ duties. The rangers must have understood in general terms what was involved in the provision of tied accommodation, but their agreement to contracts containing the language in question is very different from a reasoned acceptance that the requirement was indeed for the better performance of their duties. I would, however, reject the contention advanced by Mr Wilcox, on behalf of the respondents, that the inclusion of such language in the contracts was arbitrary or capricious or a device that did not reflect the reality of the situation. I see no reason to doubt the council’s evidence that the policy as to tied accommodation was one for which there was considered to be a continuing justification, notwithstanding the expression of different views in the course of the internal debate that took place over the years.[52]The various considerations taken into account by the council in maintaining and applying its policy, and therefore relied upon as justification for the imposition of the requirement in each of the contracts, were in my view all relevant and valid considerations. There was good reason to consider that the rangers’ duties would be better performed if the rangers lived reasonably close to the sites for which they were responsible, and that rangers would be likely in practice to find accommodation further away if they were not required to live in housing provided to them. There was also good reason to consider that the provision of tied accommodation would conduce to the safer storage of tools, equipment and plant and would assist the rangers in their administrative and clerical tasks by furnishing them with a properly equipped base for the purpose. The role of the house in providing an interface with the public strikes me as a lesser and more doubtful consideration, but I would not dismiss it altogether.[53]Mr Wilcox placed weight on the absence of a contractual duty to keep tools and equipment etc. at the house; but it seems to me that in circumstances where the rangers’ duties inevitably involved the use of tools and equipment etc. which in the normal course would be issued to them by the council, the requirement to live in a house which was considered to afford a safe place to keep such items was properly to be regarded as being for the better performance of the rangers’ duties even if there was no specific duty to keep the items in the house. Mr Wilcox also contended that the furniture and equipment for office use, and the telephone, could have been provided wherever the rangers lived and that tied accommodation did not need to be provided for the purpose. Again, however, the relevant question is not whether the tied accommodation was necessary but whether it was for the better performance of the rangers’ duties; and as to that, it seems to me that the requirement to live in a house which was provided on the basis that it was suitable for administrative and clerical work and could be equipped accordingly was properly to be regarded as being for the better performance of the duties.[54]There is nothing in the factual situation of the individual rangers, as found by the judge, to cast doubt on the validity of the various considerations to which I have referred. I do not think that anything turns, for example, on the fact that some rangers chose to store their tools and equipment (contrary, it would seem to instructions or advice) in their vehicles rather than in the house, or that they did not do much office work or were not contacted at home by the public or did not regard the house as a place of work. In any event, it seems to me that the judge was overly selective in the matters to which he referred in his conclusions and that the evidence concerning the individual rangers, taken as a whole, serves to support rather than to undermine the rationale for the council’s policy. The validity of each of the considerations relied on – proximity, storage, base, and public interface – is exemplified by the evidence relating to one or other of the rangers concerned.[55]I am therefore satisfied, in relation to each of the rangers, that the required occupation of a house provided by the council was intended to promote, and was reasonably capable of promoting, the better performance of his duties and thus was for the better performance of his duties. Even if the justification for the requirement weakened over the years, there was nothing in the way of contractual variation or change in underlying circumstances in relation to any of the rangers that could warrant a finding that the statutory condition had ceased to be satisfied by the time when the notices were served under the 1985 Act. Nor was any such variation or change of circumstances pleaded or contended for by the respondents. On a point of detail, I disagree with the judge’s view that, because the council was prepared to allow Mr Wragg to move house in 1998 in response to his work-related stress, this suggested that occupation of his existing house was no longer required for the better performance of his duties. In my view, the council’s sympathetic response to an individual employee’s health problems tells one nothing about the continued justification for the provision of tied accommodation.[56]Accordingly, the occupation of the house provided by the council to each of the respondents fell, in my judgment, squarely within the terms of para 2(1) of schedule 1 to the 1985 Act. The council has discharged the burden of establishing that the exception applied in each case and that none of the respondents had a right to buy.[57]That conclusion and the route by which it has been reached make it unnecessary for me to consider various alternative contentions that were advanced by Miss Andrews and considered by the judge, in particular an argument as to estoppel and an argument that there was undue delay in bringing the county court proceedings.[58]For the reasons I have given I would allow the council’s appeal in each case and would grant declarations to the effect that none of the respondents had a right to buy under the 1985 Act.

Lord Justice Moore-Bick :

[59]I agree.

Lord Justice Pill :

[60]I also agree.

Cited in 1 later judgment