“Preliminary Question: The ownership of the Chalets? The Old 21-Year Leases: (1) stated (in a recital) that situated on each Plot was ‘a recreational chattel Sic. The lease recital actually said “chalet”. or hut … now belonging to and removable by the Lessee’; and (2) required the tenant to remove the chalet at the end of the Lease.”
“It is our view that, notwithstanding the recital set out above, the chalets form part and parcel of the Plots and are accordingly owned by the Councils as freeholders. The chalets are clearly attached to the land on which they are situated.”
“Under the heading – Preliminary Question – the case-law is set out including a case involving a chalet (albeit one where there was no restriction on year-round occupation). The Councils do not dispute that case-law and accept that the chalets are not chattels. It will be a question of fact in each case whether the chalets are removable and so remain tenant’s fixtures; it is likely that many chalets could not be removed without being destroyed.”
“3. The Lessee hereby covenants with the Lessor as follows:- [ … ] (vii) Not to use the chalet site or any building or structure thereon nor permit or suffer the chalet to be used (either by the Lessee or any other person whomsoever) for any purpose other than for recreational purposes for eleven months of the year for use primarily by the Lessee or the Lessee’s families and the chalet shall not be used for the period from the 10th January to 9th February in each year (or such other one month period as may be specified by the Lessors). [ … ] (ix) (a) Not to assign the whole benefit of this Lease without the prior written consent of the Lessors such consent not to be unreasonably withheld… (b) Not to share the use of or part with the possession of the chalet site or any part thereof or assign the benefit of part only of this Lease or grant any licence to occupy reside or stay at or use or permit or suffer any person other than the Lessee or the Lessee’s families to occupy reside or stay at or use the chalet site or any building erection or structure thereon or any part thereof respectively EXCEPT that … the Lessee shall be entitled to grant occasional licences for occasional use of the chalet site or other building erection or structure thereon or any part thereof respectively by other respectable persons for occasional recreational purposes. [ … ] (xii) Not to carry on or permit or suffer to be carried on either in relation to or on or in the chalet site or any building erection or structure from time to time thereon or any part thereof respectively any trade or business and in particular but without prejudice to the generality of this paragraph not to carry on or permit or suffer to be carried on the trade or business of letting or licensing the occupation or use of the chalet site or any building erection or structure from time to time thereon PROVIDED that without prejudice to any other covenant condition agreement or provision in this Lease contained nothing in this sub-clause contained or implied shall be deemed to prevent the granting of occupational licences by the Lessee as permitted in sub-clause (ix)(b) hereof.”
“The chalet site tenants now need to be informed of the terms of the new ground leases that will come into effect from September 2021 onwards and this action will commence the lease renewal process. A draft communication plan is being drafted that will: Explain the rationale behind the lease increase Inform chalet leaseholders of what they need to do and when Be transparent about the increase and the wider benefits to Rame and Mount Edgcumbe It is being built around the following proposed messages: It will help secure the long-term future of Mount Edgcumbe by reducing its reliance on subsidies from Cornwall and Plymouth residents The proposed increase reflects the market value that the local authorities are under an obligation to achieve Whilst this is a big increase the conditions of the lease are being enhanced to enable holiday lettings More than 60% of leaseholders live outside Plymouth and Cornwall and use the chalets as second homes – given the enormous pressures being faced by local authorities it feels inappropriate that local council tax payers should be subsidising a cheap ground rent”
“Self-generated evidence from the chalet plots themselves of this increase in market values is strongly illustrated by 26 Trenninow which has been on the market with a guide price of£250,000 and is now reported as sold Subject to Contract on the agent's website. This sale is based on the renewal terms the Councils issued in February … It is evident that due to the ongoing impact of the pandemic on the market, significant premiums could be immediately secured by tenants if the Councils were to proceed with the February renewal terms. On account of the statutory obligation for Councils to obtain best consideration under the 1972 Local Government Act, the Councils accordingly now need to undertake a further review of appropriate long lease terms to offer.”
“We must remind you that, as a matter of law, Plymouth City Council acting on behalf of the Mount Edgcumbe Estate is legally obliged to secure the best financial return that can reasonably be obtained. The landlords are aware that, in recent years (and prior to the pandemic), chalet plots have changed hands for significant sums. In their view, much of this value is attributable to the unique location of the plots, and should rightfully accrue to the benefit of the landlord rather than the tenant. In addition, of course, in the last 18 months there has been a huge increase in the popularity of the Comish coast for holidays and second homes, and they consider that has increased the market value of plots, and that this uplift is likely to be permanent. The council is currently considering a range of possible provisions which would enable the landlord to benefit from the increase in values. These possibilities include: - charging a premium for the granting of a lease - restricting the power to assign following the granting of a lease - subjecting the power to assign to a ‘claw-back’ provision, entitling the landlords to a proportion of the proceeds of assignment. Please note that these are ideas currently being discussed and they may or may not be included in the draft lease when finalised. We must keep an open mind about how widely such provisions may vary from the terms we have come to expect from previous lease renewals.”
“The new terms will protect the Councils' position at assignment by ensuring that the Councils receive an appropriate share of any assignment premium secured by the tenant or market value if higher.”
“THERE is now standing upon the plot of land situate at Treninnow and Wiggle Cliffs in the Parish of Maker-with-Rame in the County of Cornwall forming part of Mount Edgcumbe Country Park (freehold title no. CL307759 at the Land Registry) and delineated on the plans annexed hereto and thereon shown edged red and numbered [ ] a structure comprising a recreational chalet or hut (which chalet or hut (together with any ancillary outbuildings, erections or structures) is the property of the Tenant) now called Chalet [ ], Treninnow & Wiggle Cliffs.”
“35. The Claimants seek declarations that: a. Clause 3.9.4 of the Leases is void. b. The Defendants are not entitled to make grants of consent for assignments of the Leases subject to a condition requiring the payment of a premium (whether the premiums stipulated in clause 3.9.4 or any other premiums).” a. Clause 3.9.4 of the Leases is void. b. The Defendants are not entitled to make grants of consent for assignments of the Leases subject to a condition requiring the payment of a premium (whether the premiums stipulated in clause 3.9.4 or any other premiums).”
“78. … (v) This emphasis on doing justice in the particular case is reflected in the limitations which are generally applied. Thus: a) The court will not entertain purely hypothetical questions. It will not pronounce upon legal situations which may arise, but generally upon those which have arisen: Zamir & Woolf at 4-036 & Regina (Al Rawi) v Sec State Foreign & Commonwealth Affairs[2008] QB 289 at 344. b) There must in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them: Rolls Royce [v Unite the Union[2010] 1 WLR 318 ]at [120]. c) If the issue in dispute is not based on concrete facts the issue can still be treated as hypothetical. This can be characterised as ‘the missing element which makes a case hypothetical’: see Zamir & Woolf at 4-59.”
“20. It is a long-established principle that a court, whether first instance or appellate, will only make determinations on matters which are truly in dispute between the parties; Lord Bridge commented in Ainsbury v Millington[1987] 1 WLR 379 at 381 that courts do not ‘pronounce on abstract questions of law where there is no dispute to be resolved’. An exception is recognised for arguments on points of law (especially in public law cases) which, although ‘academic’ or "hypothetical’, are points of general public interest. Even if it were such a case, the court's discretion to hear such an appeal would always be exercised with caution, and the jurisdiction to proceed is a narrow one (R v Secretary of State for the Home Department Ex p. Salem[1999] 2 WLR 483 , HL).”
“(1) The purpose of a covenant against assignment without the consent of the landlord, such consent not to be unreasonably withheld, is to protect the lessor from having his premises used or occupied in an undesirable way, or by an undesirable tenant or assignee … (2) As a corollary to the first proposition, a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease … ”
“In all leases containing a covenant, condition, or agreement against assigning, underletting, or parting with possession, or disposing of the land without licence or consent, such covenant, condition, or agreement shall, unless the lease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent; but this proviso does not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent.”
“ … the Legislature appears to have regarded the exaction of a fine as the price of consent to an assignment as so unreasonable that it ought not to be deemed to have been part of the bargain unless expressly mentioned in the lease itself. This is a question of general policy equally applicable to all leases.”
“The effect of that section is not to make the payment of a fine an illegal thing, but only to read into the lease, as between the parties to it, a provision that no fine shall be payable for a licence to assign. The defendant, as a proposed assignee, is not a party to the lease, and under those circumstances it seems to be impossible for the defendant to get out of the provisions of s. 3 of the Act of 1892 a defence to this action.”
“I am of the same opinion. Sect. 3 of the Conveyancing Act, 1892, does not prohibit the taking of a fine on the granting of a licence to assign.”
“The Legislature does not make the exaction of a fine a malum prohibitum, but only reads into the lease a covenant in favour of the leaseholder that no fine shall be exacted, and he alone can take advantage of it. This is perfectly just. The price paid for a licence to assign must in the ordinary course come out of the pocket of the assignor, whether it is paid by him or by the assignee, for, taking the present case as an instance, the defendant who was going to purchase the lease must be assumed to have taken into consideration the obligation under which he came by reason of the covenant in determining what he would give for the lease. It therefore lessened the price which the assignor obtained for the lease and to that extent injured him, but it did not injure anyone else.”
“Nor can [the freeholder] refuse approval on grounds which are unrelated to the purpose for which the power has been reserved, for example that he simply does not like his neighbour. That too would be an obvious misuse of the power. So also would a refusal of approval not because there was in fact any objection to the proposals but because the covenantee wished to exact a monetary price for the giving of the approval.”
“(1) Subject to the following provisions of this section, [and to those of the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010,] a principal council may dispose of land held by them in any manner they wish. (2) Except with the consent of the Secretary of State, a council shall not dispose of land under this section, otherwise than by way of a short tenancy, for a consideration less than the best that can reasonably be obtained.”
“Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together, in which case the maxim, ‘Leges posteriores contrariasabrogant’, applies. Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal will not be implied and special Acts are not repealed by general Acts unless there is some express reference to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together.”
“68. … the respondent inevitably accepts that if there is an inescapable logical contradiction between the earlier and the later statute, the former is repealed by implication. But the contradiction asserted must be inescapable; so that where (as here) an implied repeal is said to be based on the construction of the later statute, that construction must be shown to be the only rational interpretation which is available.”
“93. … Where there is a conflict between two statutory regimes, some assistance may be obtained from the rule that a general provision does not derogate from a special one (generalia specialibus non derogant), which is set out in section 88 of the code in Bennion, ‘Statutory Interpretation’ 6th ed (2013): ‘Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed’.” ‘Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed’.”
“78. In this appeal, the respondent relies on reports in Hansard as to the legislative debates during the passage of the Bill which led to the enactment of the Act as an external aid to interpretation. Under the rule in Pepper v Hart[1993] AC 593 , the court may have regard to reports of the legislative debates on a Bill for the purpose of ascertaining the meaning of a provision of the resulting Act where three critical conditions are met. The three critical conditions are (i) that the legislative provision must be ambiguous, obscure or, on a conventional interpretation, lead to absurdity; (ii) that the material must consist of or include one or more statements by a minister or other promoter of the Bill; and (iii) the statement must be clear and unequivocal on the point of interpretation which the court is considering.”
“3.9. In this paragraph we consider the effect of this section as it originally stood before the enactment ofsection 19(l)(a) of the Landlord and Tenant Act 1927 , which made further provision as to disposition covenants. We deal later with section 19(l)(a) and when we do so we shall reconsider the points made below. (1) It should be noted, first, that the section has no effect at all when a disposition covenant is absolute. (2) Even when the covenant is not absolute, the section will not in practice always prevent a fine being taken. It does not make it illegal for the landlord to ask for one, and if the tenant pays it (either because he does not know his rights or because he considers it the easiest course to take), the fine cannot be recovered. (3) More important, the section contains nothing to turn a qualified covenant into a fully qualified one. There is therefore nothing to prevent a landlord who has taken a qualified covenant from withholding his consent altogether (however unreasonably) and telling the tenant that if he wants to make the disposition he will have to surrender his existing tenancy and take a new one which allows dispositions, and that he must pay a premium in order to obtain it. The premium, of course, will be only a fine called by another name. (4) It seems, therefore, that the section isreally effective only in the case of a fully qualified covenant. Paradoxically, however, it can be argued that this is the one case in which its provisions are unnecessary because the courts would almost certainly have held that the demand of a fine for giving consent amounted to an unreasonable withholding. (5) Finally, it is arguable that the section does not apply at all when the disposition which the tenant wants to make is a disposition of only part of the premises let.”
“3.15. The first and most important provision (in sub-section (l)(a)) subjects such covenants to an implied proviso that the consent is not to be unreasonably withheld. Like section 144, it adds that the proviso is not to prevent the landlord requiring a reasonable sum for expenses. But unlike section 144 it stipulates that the proviso applies despite any provision to the contrary. The main effect of this is to convert qualified covenants automatically into fully qualified ones. 3.16. Having summarised section 19(l)(a), it is appropriate to reconsider, in the light of it, the points made in the numbered sub-paragraphs of paragraph 3.9 of this report in relation to section 144 sf theLaw of Property Act 1925 : (a) Section 19(l)(a) makes no difference to sub-paragraphs (1)or (it seems) (2) of that paragraph. (b) Sub-paragraph (3), however, is no longer valid (except for agricultural tenancies, to which section 19(l)(a) did not apply) in that there are (except in them) no longer any disposition covenants which are qualified but not fully qualified. (c) For this reason there is, on the argument put forward in sub-paragraph (4), an increase in the number of cases in which section 144 is fully effective but also unnecessary. In fact the suggestion that section 144 is unnecessary where the covenant is fully qualified is perhaps strengthened by section 19(l)(a) because the wording of its ‘fully qualifying’ proviso conveys the clear impression that the demand of a fine would in principle be unreasonable: otherwise there would be no need to include (as the proviso does) an express saving for landlords who require payment of their reasonable expenses. (d) It can even be argued that the only surviving effect of section 144 (except for agricultural tenancies) may be to lessen the protection given to the tenant by section 19(l)(a). The proviso implied by that paragraph (which clearly suggests, as we have just said, that it is unreasonable to demand a fine) applies despite any contrary provision in the tenancy. Section 144, by contrast, can be nullified by such a provision. So what would happen if a case arose in which an expressly qualified or fully qualified covenant were coupled with an express provision for a fine? It might be said that section 19(l)(a) had rendered nugatory the right to contract out contained in section 144 and this is probably correct. But section 144 remains on the statute book; and although its continued presence is explicable on the ground that it is still needed for agricultural tenancies, it has not been limited to such tenancies but remains quite general. So it might conceivably be concluded that the right of contracting out was still excusable, with the result that the provision for a fine remained valid. (e) As to sub-paragraph (3),it should be noted that section 19(l)(a) applies equally to dispositions of part as to those of the whole. If the argument in sub-paragraph (d) above is valid, therefore, the strange result might be that the protection conferred by section 19(l)(a) is greater in relation to dispositions of part (to which section 144 arguably does not apply) than it isin relation to dispositions of the whole (where it may still have an effect).”
“8.20. Allowing a landlord to demand a fine for giving consent – that is, a payment or other consideration just for the consent itself – would be wholly inconsistent with the nature of a fully qualified covenant. It would go against the policy which has led to the recommendations for full qualification, and it would go far to deprive those recommendations of practical effect. In no case could it be reasonable for a landlord to withhold consent upon the ground that the tenant had refused to pay a fine, and this should be made clear. [ …] 8.22. … as we mentioned earlier (ie paragraph [3.16(d)], there is a possibility, because of a provision in section 144 of the Law of Property Act, 1925,that contracting out may be effective under the present law in relation to certain fully qualified disposition covenants. We recommend that any doubt which may exist on this point should be removed.”
“ … So what would happen if a case arose in which an expressly qualified or fully qualified covenant were coupled with an express provision for a fine? It might be said that section 19(1)(a) had rendered nugatory the right to contract out contained in section 144 and this is probably correct. But section 144 remains on the statute book; and although its continued presence is explicable on the ground that it is still needed for agricultural tenancies, it has not been limited to such tenancies but remains quite general. So it might conceivably be concluded that the right of contracting out was still excusable, with the result that the provision for a fine remained valid.”
“ … subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.”
“As to the restrictive covenants against assigning, altering or improving premises or changing the use of them without consent, I have said that some landlords do make unreasonable use of those covenants and do exact fines for giving their consent. First there is the covenant against assigning or underletting without consent. There is already a statutory provision against exacting a fine for consent to an assignment or underletting. That has been the law since, I think, the year 1881. It is also common in well-drawn leases to provide that assent shall not be unreasonably withheld. We propose to read that condition, that consent shall not be unreasonably withheld, into every covenant of this kind.”
“30 The words ‘dwell’ and ‘dwelling’ are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as ‘inhabit’ and ‘habitation’ or more precisely ‘abide’ and ‘abode’, and refer to the place where one lives and makes one's home. They suggest a greater degree of settled occupation than ‘reside’ and ‘residence’, connoting the place where the occupier habitually sleeps and usually eats, but the idea that he must also cook his meals there is found only in the law reports. It finds no support in English literature … ”
“Not at any time to carry on or permit to be carried on upon the Property any trade or business whatsoever nor to use or permit the same to be used for any purpose other than as a private dwelling house for occupation by one family at any one time.”
“20. … the use of residential property for short term occupation by a succession of paying guests has always been treated as a breach of a covenant requiring use only as a private residence or dwelling-house. Occupation by a sub-tenant who uses the property as his or her own private residence is permitted, as may be occupation by a group of individuals living collectively, or by non-paying guests, family members, or servants occupying with the tenant. But short-term occupation by paying strangers is the antithesis of occupation as a private dwelling-house. It is neither private, being available to all comers, nor use as a dwelling-house, since it lacks the degree of permanence implicit in that designation.”
“The issue is not whether the restriction contained in the first rule is justifiable but how the restriction should be construed having regard to its blanket or discriminative effect in relation to a political body. In view of this the ambiguous words ‘wholly or mainly’ should be construed restrictively. By that I mean they should be construed in a way in which limits the application of the restriction to bodies whose objects are substantially or primarily political. This corresponds with the Shorter Oxford English Dictionary's meaning of ‘mainly’ as being ‘for the most part, chiefly or principally.’ Certainly a body to fall within the provision must be at least midway between the two percentages I have identified, ie more than 75 per cent. This approach to the interpretation of a provision which impedes freedom of communication corresponds with the general approach of the courts of this country, the European Court of Human Rights and many Commonwealth courts in this area … ”
“‘dwelling’ means a building or part of a building occupied or intended to be occupied as a separate dwelling together with any yard, garden, outhouses and appurtenances belonging to it or usually enjoyed with it …”
“25. … The definition does not confine the use of the word to a principal home. In common parlance one regularly talks about a ‘holiday home’. There seems to be absolutely no reason why someone cannot have two or more homes. The legislative history may well be interesting but the 1987 Act does not purport to be a ‘consolidation statute’. If it had been, then of course the original meaning would have been carried over into the new consolidated legislation. Parliament has chosen to definition of ‘dwelling’ in theLandlord and Tenant Act 1985 and has not adopted that from the Housing Act: the Landlord and Tenant Act definition is specifically not limited to defining ‘dwelling’ as a main home. Following the guidance of the House of Lords in Uratemp Ventures Ltd v Collins[2001] UKHL 43 ; [2002] 1 A.C. 301 which makes it clear that the meaning to be attached to the word ‘dwelling’ is very much context specific. I find that the word is not limited to use of a main home as a private residence. 26. It may well be, as Mr Virgo pointed out, that the exclusion of holiday lettings from landlord and tenant legislative protection is not in any sense novel: sees.9 of the Rent Act 1977 and s.1(2) and Sch.1para.9 of the Housing Act 1988 . Plainly it would be inappropriate for there to be security of tenure for someone taking a lease of holiday accommodation. But in my judgment that does not undermine another principle about which Parliament has been concerned namely that unscrupulous landlords should not be able to exploit tenants who are required to contribute to the management costs of an estate … ”
“a lease by which a building or part of a building is let wholly or mainly as a single private residence … ”
“I would say that if a house cannot fairly be described as someone's private dwelling house, it cannot be said to be being used as such. I therefore ask myself the question which was asked by James LJ in German v Chapman, 7 Ch D 271: whose private dwelling house can it be said to be? It is not the Secretary of State's. And I am unable to say that it is the residents'.”
“49. The term ‘private residence’ is a composite term. It may be contended that a room in a hotel is not a ‘private residence’, but if a guest stays there enjoying the facilities for months or years a strong argument could be made that the room has become a private residence of the guest for the time being. For myself, I find it difficult to think of circumstances in which an individual’s ‘residence’ would not be that person’s ‘private residence’ … [ … ] 53. I have reached the view, consistent with the decision of the FtT, that the duration of the occupier’s occupation is material. It does seem to me that in order for a property to be used as the occupier’s private residence, there must be a degree of permanence going beyond being there for a weekend or a few nights in the week. In my judgment, I do not consider that where a person occupies for a matter of days and then leaves it can be said that during the period of occupation he or she is using the property as his or her private residence. The problem in such circumstances is that the occupation is transient, so transient that the occupier would not consider the property he or she is staying in as being his or her private residence even for the time being.”