R v Agricultural Dwelling-House Advisory Committee for Bedfordshire, Cambridgeshire and Northamptonshire, ex parte Brough

Rent (Agriculture) Act 1976 — Application for judicial review, challenging proceedings of agricultural dwelling-house advisory committee established under section 29 of the Act — Committee appointed to advise local housing authority on applications for possession — Cottage claimed by applicant to be required to house a person to be employed by him in forestry — Questions as to regularity of proceedings before advisory committee — Question of administrative law as to whether certiorari could go to quash an advisory report when the power to make a binding determination resided in another body — Applicant for judicial review was the owner of some forestry land — Respondent had been in applicant’s employment as a forester and occupied a cottage in that capacity — He had been (unfairly) dismissed and given notice to quit, becoming a statutory tenant under the 1976 Act — Applicant sought possession of the cottage for his replacement — There were irregularities during the proceedings of the advisory committee — Each party was heard in the absence of the other and the respondent had made allegations of bad faith against the applicant which the latter had no opportunity to rebut — In addition, the committee’s report failed to state adequately why they rejected the application, although required to give reasons for their decision by section 28(6) of the 1976 Act — After considering various authorities, the judge decided that certiorari could go to quash the committee’s report — Although the report was advisory and not determinative, there was sufficient proximity between it and the decision of the local authority, which would be likely to be strongly influenced by it, to justify the court in granting relief at this stage — It would be wrong to allow the proceedings to go further and require the applicant to wait until the decision of the local authority was made against him — Committee’s report quashed The following cases are referred to in this report. R v Boycott [1939] 2 KB 651 R v Electricity Commissioners, ex parte London Electricity Joint Committee [1924] 1 KB 171 R v Metropolitan Police Commissioner, ex parte Parker [1953] 1 WLR 1150; [1953] 2 All ER 717, DC R v St Lawrence’s Hospital Statutory Visitors, Caterham, ex parte Pritchard [1953] 1 WLR 1158; [1953] 2 All ER 766, DC R v Winchester Area Assessment Committee, ex parte Wright [1948] 2 KB 455; [1948] 2 All ER 552, CA This was an application for judicial review by Reginald Arthur Brough, with a view to challenging the report of the Agricultural Dwelling-House Advisory Committee for Bedfordshire, Cambridgeshire and Northamptonshire, advising the South Bedfordshire District Council against his application for vacant possession of a cottage occupied by the respondent, Mr Atkinson. I A B McLaren (instructed by Turner Kenneth Brown, agents for Brown Jacobson & Roose, of Nottingham) appeared on behalf of the applicant; I Karsten (instructed by Geoffrey Leaver & Co, of Milton Keynes) represented the respondent; the advisory committee were not represented and took no part in the proceedings. Giving judgment, HODGSON J said: It may be that at the heart of this case there is a point of administrative law, to do justice to which would require elaborate and extended investigation of the authorities. However, I feel reasonably confident that without the citation of authorities with which the point may be concerned I have come to the just decision. In this case the applicant seeks judicial review of a decision of the Agricultural Dwelling-House Advisory Committee for Bedfordshire, Cambridgeshire and Northamptonshire, whereby on February 13 1985 it resolved to advise the South Bedfordshire District Council that: The interests of agricultural efficiency do not call for provision of suitable alternative accommodation in this case, principally on the grounds that the forestry operations being carried out on the estate under the supervision of the applicant’s forestry adviser do not warrant the presence of a forester living on the estate. The decision under attack by the committee — I shall speak of the committee and the local authority from now on — is pursuant to and under the provisions of the Rent (Agriculture) Act 1976, as amended by the Rent (Agriculture) Amendment Act 1977. The background facts can be very briefly stated. The applicant is the owner of forestry land. He does not live on the estate and nor does his son. He employs a 2forestry adviser, a Mr Acott, who lives some 25 miles away. Between January 1973 and September 28 1984 the forestry land was cared for by a forester, Mr Atkinson, who is the respondent in these proceedings. He occupied a small house situated near the main entrance to the estate as, I suppose, the licensee of the applicant to begin with. Under the provisions of the 1976 legislation Mr Atkinson became a protected tenant. The applicant and Mr Atkinson fell out, the applicant dismissed Mr Atkinson and his employment terminated on September 28 1984. He brought proceedings for unfair dismissal which were successful. The applicant then served notice to quit and when that expired on January 2 1985 Mr Atkinson became a statutory tenant under the legislation. The applicant wished to use the cottage occupied by Mr Atkinson for his replacement as forester. Mr Atkinson being, not unnaturally, unwilling to depart, the applicant107 attempted to avail himself of the provisions of the 1976 Act. At this stage of my judgment it will be convenient to examine the statutory background against which this application for judicial review is brought. The 1976 legislation made a very substantial alteration in the security of tenure of agricultural workers occupying premises and it was, no doubt, appreciated that it might not be in the interests of agriculture generally if houses were tied up with statutory tenancies where the tenant was no longer working on the land to which the property belonged. Accordingly, provision was made for the estate owner who was himself unable to provide alternative accommodation to make application to the housing authority concerned: in this case the South Bedfordshire District Council, to whom I shall refer as ‘the authority’. Section 27 of the Act provides that an application may be made by the occupier of land used for agriculture to the housing authority concerned on the ground that: (a)  vacant possession is or will be needed of a dwelling-house which is subject to a protected occupancy or statutory tenancy . . . in order to house a person who is or is to be employed in agriculture by the applicant, and that person’s family, (b) the applicant is unable to provide, by any reasonable means, suitable alternative accommodation for the occupier of the dwelling-house, and (c) the authority ought, in the interests of efficient agriculture, to provide the suitable alternative accommodation. Accordingly, the applicant in this case makes such an application. Section 28 of the Act is concerned with the duty of the housing authority to which such an application is directed. Section 28(1) provides that the application shall be in writing. Section 28(2) provides for notification to the occupier of the dwelling-house. Section 28(3) provides: The authority, or the applicant, or the occupier of the dwelling-house, may obtain advice on the case made by the applicant concerning the interests of efficient agriculture, and regarding the urgency of the application, by applying for the services of a committee under section 29 of this Act. The applicant, it appears, made such an application. Section 28(4) provides: the committee shall tender its advice in writing to the authority, and make copies of it available for the applicant and the occupier of the dwelling-house. Section 28(5) provides: In assessing the case made by the applicant and in particular the importance and degree of urgency of the applicant’s need, the authority shall take full account of any advice tendered to them by the committee in accordance with section 29 of this Act . . . Section 28(6) provides for notification of the authority’s decision, with a generous timetable: three months after receiving the application or, if an application is made for the services of a committee, within two months of their receiving the committee’s advice. Section 28(6A) provides: The notification shall state — (a) if the authority are satisfied that the applicant’s case is substantiated in accordance with section 27 above, what action they propose to take on the application; (b) if they are not so satisfied, the reasons for their decision. Therefore, the housing authority have a duty to take full account of any advice tendered to them and a statutory duty, if they find against the applicant, to give reasons for their decision. Section 28(7) places upon the authority a duty to use their best endeavours to provide suitable alternative accommodation. Section 28(8) provides, rather unusually, for an action by the applicant against the local authority for breach of statutory duty, if they are in breach of that duty. For the purposes of this case I think I need not refer to any of the other subsections of that section. In response to the request of the applicant to have a committee to assess the agricultural need and urgency of this application one was appointed, and it is against the decision of that committee that this application for judicial review is brought. Section 29 of the Act makes provision for advisory committees and for the composition of the committee. Section 29(8) provides for the committee to act in accordance with any directions given by the minister; I understand none have been given. Section 29(9) empowers the minister to make regulations; I understand that none have been made. Section 29(10) provides: Subject to regulations, or any direction, under subsection (9) above the procedure of any committee shall be such as the chairman of that committee may direct. Section 29(12) provides: The Minister may with the consent of the Minister for the Civil Service make payments to persons other than members of a committee by way of fees or compensation for expenses incurred and time lost by them in or in connection with their giving, at the request of the committee, any advice or information. The committee having been appointed, they, in their turn, as they were entitled to do, sought the advice of the Forestry Commission. That advice was contained in a three-page document. The advice concluded: The estate’s policy at present is for the forester to carry out all the work himself. Considering the annual forestry work programme, the Christmas tree production and sales, the work being requested by the Nature Conservancy Council and the work involved in the production of semi-mature trees it is my opinion that the employment of a skilled forester is justified. On an estate where public footpaths are in the vicinity of young plantations, and with an intensive Christmas tree operation, and especially considering the distance at which the owner, his son and their forestry adviser live, it is necessary for the forester to live in a strategic place in the vicinity for security reasons. Therefore, the opinion of the Forestry Commission, through its official, was that the forestry land justified the employment of a skilled forester, and that because of the distance from the estate at which the applicant, his son and his forestry adviser lived the forester should live in a strategic place in the vicinity for security reasons. The committee met on February 13 1985 at an hotel. They had before them the advice of the Forestry Commission. What happened on that day seems to me quite plainly to have amounted to procedural impropriety, allowing for the fact that the chairman was entitled to be the master of his own procedure. In my judgment, having devised an unsatisfactory procedure, the committee then proceeded to put it into operation in an unfair way. The committee, the applicant and Mr Atkinson, the tenant, all had a copy of the Forestry Commission report. The committee decided to see the parties separately. First they saw the applicant, his solicitor and his expert Mr Acott, whose views agreed with those of the Forestry Commission. At that first meeting the committee were told of something which did not appear in the Forestry Commission report: that the applicant was unable to obtain the services of a skilled forester unless he could offer him housing. The committee were told that advertisements had been put in the trade papers unsuccessfully. It is true that later on the applicant was asked whether he had copies of the advertisements actually with him and said that he did not. I do not see that very much turns on that. Having seen and heard the applicant’s side the committee then saw Mr Atkinson and his solicitor. As all the expert evidence was one way, and as Mr Atkinson had seen the independent report of the Forestry Commission, he clearly knew the case he had to meet. The applicant could be forgiven for thinking that there was little or nothing which Mr Atkinson could say about the technical matters on which the committee had to be satisfied in order to advise the local authority. What Mr Atkinson did do, and what now appears from his affidavit, was to throw doubt upon the bona fides of the application. In his affidavit Mr Atkinson says: There were a number of points which needed to be made at the hearing, and which I arranged for my solicitor to make on my behalf: (1)  Mr David Brough, the applicant’s son, had indicated to me in early 1984 that he would like my cottage for renting out, which suggested that perhaps they were not being straightforward about applying on the basis of agricultural need. That is a plain allegation of mala fides against the applicant. Mr Atkinson then went on to deal with two other properties on the estate. He then instructed his solicitor to allege inaccuracies of fact in the expert report from the Forestry Commission, set out in para 4(3) of his affidavit, which I do not cite in full. Then at para 4(4) he said: Since my dismissal in September 1984, the estate had been looked after by a forestry worker who had worked previously on the Woburn estate and who lived in Woburn, some four miles distant from Rushmere, and this had apparently worked out perfectly satisfactorily for several months following my dismissal. Mr Marshall, the Woburn forestry worker, had his own home in Woburn, and he would have been very surprised indeed to hear that my cottage was required for his occupation, indeed he informed me himself that he did not wish to move. Those are all relevant averments made in the proceedings, and made at a time when, on the basis of the procedure adopted by the committee, the applicant and his solicitor were given no proper opportunity to rebut them. True it is that, after the proceedings — if108 you can call them that — at the hotel were completed, there was a visit to the site, during which certain matters were discussed as the inspection took place. It is suggested, forcefully and well, by counsel for Mr Atkinson that any defect in procedure at the hearing — or should I say hearings — in the hotel were put right by what happened during the inspection. I do not accept that for one moment. It is true that there is uncontradicted evidence that there were relevant conversations as the party moved from place to place around the estate. But one does not need to have had the experience of such inspections oneself to realise that the sort of thing which goes on during such an inspection cannot take the place of the opportunity to give proper replies to allegations made. Nor were the allegations of mala fides against the applicant and his son and as to the other property on the site ever put to the applicant so that he could, if he wished, refute them. Whether or not any of those things had any effect on the deliberations and determinations of the committee I do not and cannot know, because they have not filed evidence in this case and we are therefore left in ignorance as to what did and did not affect their judgment. All I can really be concerned about is to look at what happened and then, allowing as I said for the fact that the chairman was entitled to devise his own procedure, decide whether it was fair within that procedure. I unhesitatingly conclude that it was not. After the inspection and the conversations which took place there the committee provided their advice to the local authority. That advice is contained in an advice sheet of which there is a copy. It is perhaps of some interest to know that section 1 of that form provides for the committee to make observations on factual data as follows: ‘With particular reference to any instances where, in the committee’s view, the data furnished by the applicant need to be amplified or qualified so as to give what they would regard as a full and fair picture of the relevant facts.’  Nothing was written there in the report. Then, in their assessment, after the printed words ‘in the committee’s view the interests of agricultural efficiency do not call for provision of suitable alternative accommodation in this case, principally on the grounds that,’ the committee have inserted the words: The forestry operations being carried out on the estate under the supervision of the applicant’s forestry adviser do not warrant the presence of a forester living on the estate. On behalf of the applicant it is submitted that those reasons are wholly inadequate for the purpose for which they are required, namely, the advice to the local authority so that it can decide whether it has any duty under the Act. It must be remembered that the local authority is required by statute to take full account of the advice that it receives. There is some slight evidence that when advice is received it is, if not conclusive, then very nearly so; as one would expect with an authority faced with the possibility of having to fulfil a statutory obligation to find accommodation. In the context of the need of the local authority for the advice, I have come to the conclusion that, particularly in view of the overwhelming expert evidence with which the committee were faced and no hint of which appears in their advice, the reasons given were, in the context of this case and this legislation, wholly inadequate reasons. That being so, as long as the decision of the committee to give the advice they did is subject to judicial review and quashing by way of certiorari, and if I am satisfied in my discretion that certiorari should go, then that, on the view I have formed of the case, is the end of the matter. The question of law which may be at the heart of this decision, and to which I referred at the beginning of my judgment, is whether certiorari will go to quash an advisory decision of this nature when the determination is itself to be that of another body. I have looked with counsel at a number of passages from the fifth edition of Wade on Administrative Law and the fourth edition of de Smith.*  I dare say that we could have gone on for hours and hours finding passages both in the textbooks and in the authorities which would support either view. I should particularly refer to R v Boycott [1939] 2 KB 651 and R v Winchester Area Assessment Committee, ex p Wright [1948] 2 All ER 552, together with various passages from Wade and de Smith; R v St Lawrence’s Hospital, Caterham, Statutory Visitors, ex p Pritchard [1953] 1 WLR 1158, the contiguity of which with R v Metropolitan Police Commissioner, ex p Parker [1953] 1 WLR 1150 is perhaps worth noticing; and also the case of R v Electricity Commissioners [1924] 1 KB 171. *Editor’s note: Judicial Review of Administrative Action, by S A de Smith. In my judgment, particularly when one is considering the procedural impropriety or otherwise by which a decision of this nature — that is, one which is not finally determined — can be subject to judicial review, one has to pay great regard to a consideration which appears in a sentence of de Smith at p 234: The degree of proximity between the investigation in question and an act or decision directly adverse to the interests of the person claiming entitlement to be heard may be important. I think that is right. Merely because a decision to give advice, or the advice itself, is not finally determinative of a question is not in my view the determining factor. I think it is important to look at all the facts and see in general terms what part that subdecision, if I can coin a phrase, plays in the making of the decision as a whole. If it is only a decision to give evidence one way or the other, then plainly it would not be subject to judicial review. But where that advice is sought by the determining authority from a committee of whose decision the authority is required by statute to take full account, and where there is some evidence that in practice the advice is — to put it no higher — highly likely to be followed, then I think it would be wrong to allow the proceedings to go further and require the applicant to wait until the decision of the local authority is made against him, if it is, before attacking that decision on the basis that the material upon which it was based was flawed. That would seem to me to be a wholly unnecessary requirement, and I have no doubt on the facts of this case and within the context of this legislation that the court has power to interfere at this stage and that it is a power which it ought to exercise if it is satisfied that there has been a procedural impropriety. I am satisfied that there has been that procedural impropriety. I think that in my discretion I ought not to refuse the relief sought at this stage and the consequence of that is that this decision of the committee must be brought up to this court and quashed. Certiorari ordered to go to quash committee’s decision. Respondent to pay applicant’s costs.