Copping and another v Surrey County Council

Right to buy — Relevant date for valuation — Tenant serving notices in 1991 and 2001 — Judge holding that 1991 notice still extant — Whether claim impliedly abandoned — Whether writing necessary for withdrawal of claim — Appeal allowed The first respondent was employed by the appellant council as a canal ranger, and had lived in a house provided by them since 1981. The second respondent was his wife. In 1991, the respondents served a notice under section 122(1) of the Housing Act 1985 (the 1985 Act), claiming to exercise a right to buy the house. The council, in turn, served a notice under section 124(2) of the 1985 Act denying the right to buy, on the ground that the first respondent did not hold a secure tenancy because he was required to occupy the property for the better performance of his duties. The respondents took no further action until 2000, when they entered into further correspondence with the council concerning the right to buy. In 2001, they submitted a further application to purchase the property, on the basis of occupation from 1986 to 2001, but the council denied that claim on the same ground as previously. The respondents brought Part 8 proceedings against the council, seeking a declaration, in relation to the 2001 claim, that they were entitled to purchase the house. The judge found that the respondents were secure tenants and granted the declaration. A dispute subsequently arose between the parties over the valuation of the property. The council were obliged to serve a notice stating the value at “the relevant time”, which was defined in section 122(2) of the 1985 Act as the date of service of the tenant’s notice claiming the right to buy. They maintained that the relevant time was the date of the 2001 notice, while the respondents argued that it was the date of the 1991 notice. The respondents brought a further Part 8 claim for a declaration as to the relevant date. They argued that their 1991 notice was still extant, since it had not been withdrawn in writing pursuant to section 122(3) of the 1985 Act. The council contended that, in light of the respondents’ inaction for almost 10 years, they had been entitled to assume that that application was not being pursued. The judge found in favour of the respondents, holding that the right to buy was independent of any notice purporting to exercise that right. The council appealed. Held: The appeal was allowed. The right to buy was created by statute. It did not exist in common law, and it could be exercised only in accordance with the provisions of the 1985 Act and subject to its conditions and exceptions: Hanoman v Southwark London Borough Council [2004] EWHC 2039 (Ch); [2005] 1 All ER 795 considered. The judge had erred in holding that the right to buy was independent of any notice purporting to exercise that right. On the contrary, the right to buy could not exist if a valid notice had not been served; the court could not declare the existence of a right to buy in the absence of such a notice. If a local authority denied the right to buy, the tenant had two options: either to challenge that denial in the county court under section 181 of the 1985 Act, or to accept it and no longer pursue the claim. If a claimant failed to bring proceedings to establish the right to buy in the county court within a reasonable time, it might be contended that its claim under section 122 of the 1985 Act had lapsed through effluxion of time: Sutton London Borough Council v Swann (1986) 18 HLR 140 considered. Although section 122 of the 1985 Act did not provide for a deemed withdrawal of a claim, that did not mean that a tenant’s notice could be withdrawn only by notice in writing and that it would otherwise remain extant. A notice could be abandoned or withdrawn. It was incorrect to say that the issues of abandonment and estoppel did not arise because they were not mentioned in the 1985 Act. There was no reason why abandonment should not, on the appropriate facts, be a unilateral decision by a party not to pursue its right. Once such a decision had been made and communicated, or once it could properly be inferred, the right was lost and should not be capable of being revived. If prejudice to the victim of the delay had to be established, substantial delay could give rise to an inference of prejudice: Grice v Dudley Corporation [1958] Ch 329 and Graham v Northern Joint Police Board 2000 SLT (Land Ct) 7 considered. In this case, the respondents had abandoned their 1991 claim to the right to buy. They had not replied to the council’s denial of their claim, challenged it, or brought proceedings in the county court. Their enquiries nine-and-a-half years later were based upon their then occupation of the premises, and their 2001 notice relied upon occupation up to 2001. Moreover, the first Part 8 claim had been based solely upon the 2001 notice. That conduct amounted to a clear abandonment, or, alternatively, an implied withdrawal, of the 1991 notice. It was not necessary for the council to show prejudice, but prejudice had clearly occurred, in that reliance upon the 1991 notice would result in the council receiving a lesser sum for the property. Furthermore, it would be unconscionable to allow a tenant to issue more than one notice and to choose the most advantageous time to select the one upon which it chose to rely. This would lead to uncertainty and disadvantage to the local authority and, hence, to the taxpayers of the county. Jerome Wilcox (instructed by Campbell Courtney & Cooney, of Frimley) appeared for the claimants; Claire Andrews (instructed by the legal department of Surrey County Council) appeared for the defendants. Sally Dobson, barrister