R v Bristol Rent Assessment Committee, ex parte Dunworth

Rent Act 1977 — Fair rent — Decision of rent assessment committee challenged by tenant — Application for judicial review — Rent officer had determined a rent of £1,068 per annum plus £168 for services — Committee subsequently fixed a rent of £2,000 per annum, with the same amount of £168 for services — It was the intervening events and procedure which gave rise to the issue in this case — Communications from the tenant to the committee were ambiguous as to whether she wished to withdraw her objection or was merely stating that she did not wish to attend a hearing — Unknown to committee the tenant had written a letter which did indicate an intention to withdraw, but this letter never reached the committee, having been given to a friend who failed to post it — Committee made efforts to clarify the tenant’s intentions but eventually decided that she did not intend to withdraw and notified her of the date and arrangements for the hearing — Even at this stage there was some ambiguity — Tenant said on a reply card that she did not intend to be present but was willing to make arrangements for an inspection — She also wrote a letter which repeated that she would not attend, made comments on increases of rent, but was otherwise ambiguous — Committee proceeded with the hearing in the absence of the tenant — Despite the fact that the landlord supported the rent officer’s determination, the committee increased the fair rent to the figure mentioned above, stating in their reasons that the flat had been substantially undervalued — Committee had been unable to inspect the flat as the tenant was not there to admit them — McCullough J, after referring to the principles governing a withdrawal, as established in Hanson v Church Commissioners for England, said that the essential question, to be decided in the light of Associated Provincial Picture Houses Ltd v Wednesbury Corporation was whether the committee’s decision to proceed to a determination in the absence of the tenant and without an inspection was one which no reasonable rent assessment committee in the circumstances could reasonably have arrived at — This question had to be answered by considering whether the only conclusion which the committee could reasonably have reached was that the tenant had indicated an intention to withdraw her objection, or that what she had written was so ambiguous that, without further inquiry, she could not reasonably be taken not to have indicated such an intention — Held by McCullough J, having reviewed the correspondence, that these questions could not be answered in the tenant’s favour so as to enable the committee’s decision to be quashed — It was hoped that the tenant would appreciate that the court had no power to consider the fairness of the rent — Nor could it be swayed by its considerable sympathy over the mishap of the letter which was never posted showing the tenant’s intention to withdraw — Application dismissed The following cases are referred to in this report. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, CA Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; [1983] 2 WLR 735; [1983] 2 All ER 346, PC Hanson v Church Commissioners for England; R v London Rent Assessment Committee ex parte Hanson [1978] QB 823; [1977] 2 WLR 848; [1977] 3 All ER 404; (1976) 34 P&CR 158; 241 EG 683, [1977] 1 EGLR 49, CA This was an application by Mrs Coral Marjory Dunworth, tenant of Flat 13a at 13 Lansdown Crescent, Cheltenham, for judicial review of a decision of a Bristol rent assessement committee determining the fair rent of the flat under the Rent Act 1977. The applicant sought to have the decision quashed or, alternatively, declared unlawful. R Gordon (instructed by Willans & Gyles, of Cheltenham) appeared on behalf of the applicant; N P Pleming (instructed by the Treasury Solicitor) represented the respondent committee. Giving judgment, McCULLOUGH, J said: This is an application by Mrs C M Dunworth for judicial review of the decision of a Bristol rent assessment committee made on August 9 1985, and communicated to her by a letter of August 12 1985, determining a fair rent in respect of premises occupied by her at Flat 13a, 13 Lansdown Crescent, Cheltenham. On February 11 1985 the rent officer, upon application by her landlord, decided that a fair rent would be £1,068 per annum plus £168 per annum for services, to be effective from April 10 1985. The103 applicant objected to those figures and said so. The issue fell to be determined by the respondent committee. The original hearing was to have been on June 5 1985 in the Montpellier Room, Municipal Offices, Cheltenham. On May 22 1985 Mrs Dunworth was notified of the date and of the fact that the committee would visit her premises on the same day. She wrote to the clerk to the committee on May 27 saying inter alia: I am unable to attend the hearing on Wednesday June 5 1985 as I will be away, and I wish not to leave the key of the premises to any other person, whilst being on vacation. Also I do not have anyone to represent me, as I cannot afford it; knowing full well I don’t stand a chance of winning this case, so there’s no point wasting your’s and my time. It not being apparent to the committee’s officers whether or not the applicant wished to withdraw her objection, she was written to on June 20 1985 in the following terms: I refer to your letter of May 27 1985. I should be grateful if you could advise me whether or not you want the rent assessment committee to proceed with this case?  If you want to withdraw your objection to the rent officer’s registration, the committee will not consider the matter, and the rent will remain as registered by the rent officer. If you do want the rent assessment committee to consider this case, then a date will be arranged for the inspection and hearing in July. Please let me know as soon as possible whether or not you wish to withdraw your objection. Mrs Dunworth then wrote a letter dated July 25 1985 to the committee which said: Received your letter June 21 1985 asking me if I want to withdraw my objection to the rent officer’s registration. I do not wish to pursue this case, I didn’t expect it to go this far, all I wanted was an explanation. Her reference to the letter of June 21 1985 must be to the one written to her by the committee dated June 20 1985. Mrs Dunworth then gave the letter which she had written to a friend and asked her to post it. Unfortunately her friend lost it in her handbag and did not post it; she forgot all about it and so it never reached the committee. Not having received any reply to their letter of June 20, the committee wrote again on July 10 1985 in the following terms: In the absence of a reply to my letter to you of June 20 1985, I assume that you still require the rent assessment committee to consider this matter. I will advise you in due course of the arrangements for inspection of the property, which will now take place in August. The next thing that happened was that on July 26 1985 the clerk to the rent assessment committee wrote to Mrs Dunworth as follows: The Rent Assessment Committee considering the fair rent for the premises named above will hold a hearing. It will be held at No 2 Magistrates’ Court, St George’s Road, Cheltenham, on Friday, August 9 1985 at 2.45 pm. You have a right to speak at the hearing or to be represented by someone else. If you intend to be represented please let me know as soon as possible. The committee will visit the premises on the same day at 11.15 am. If you are the tenant would you please make sure that someone is there to let them in. You are welcome to attend but they cannot hear any new arguments or evidence during the visit. Its purpose is simply to let them see the premises for themselves. At the foot of the page was written: Please complete and return the enclosed card, in the reply envelope provided, as soon as possible. Mrs Dunworth did complete the card, which reads: I acknowledge receipt of the notice of inspection/hearing and will arrange for the members to be shown over the premises when they arrive. I intend/I do not intend to attend the hearing. Signed C Dunworth. Date 31-7-85. The whole of the card, apart from the applicant’s signature and the date, is printed. There are asterisks against the words ‘I intend’ and ‘I do not intend’ and a note below indicating ‘delete as appropriate’. The card was received by the committee on August 2 and on the same day the clerk to the committee received a further, undated, letter from Mrs Dunworth which said: Dear Mrs Collins, Reference to your Rent Assessment Form, saying you wish me to be at the court hearing Friday, August 9. I am unable to attend, as this wasn’t my intention for this case to go as far as to the Magistrates’ Court, my nerves couldn’t take it. I was just trying to state that I couldn’t understand why the rent go up so much every year, when I was told when I was visited before moving from my old flat into a new flat, that the rents would go up for atleast 5 years. This is what was lead to understand. I understand that rents do go up from time to time, but surely not every year. I trust you understand what I am trying to say. Yours sincerely, C Dunworth (Mrs). That was the material before the committee on August 9 1985 when they decided to go ahead and make a determination of the fair rent. The figure which resulted from that determination was £2,000 per annum with £168 per annum for services. The landlord was in fact content with the figure which had been determined by the rent officer but the committee decided of its own volition, for reasons set out in its determination, that this significantly higher figure should be substituted. The committee wrote and told Mrs Dunworth so and a statement of reasons was sent in due course. In fairness to the committee I will read those reasons: Rent assessment committee was unable to inspect the flat which was the subject of the objection by the tenant due to the tenant’s failure to be present to admit the committee at the time arranged for inspection. As this was the second occasion that this has happened and furthermore in spite of intervening correspondence sent by the BRAP Office to the tenant the committee decided to proceed with the application without an inspection and in the absence at the hearing of the tenant. The committee was, however, able to inspect a similar flat on the ground floor of 13 Lansdown Crescent in the presence of a representative of the landlord who indicated that that flat was similar in all respects to the subject flat save that as it was on the top floor the ceilings were at a reduced level. As a result of the said inspection it was concluded that the subject flat was a self-contained flat of well above average proportions providing above standard accommodation comprising a living room, three bedrooms, a kitchen, bathroom, separate WC, two stores, hall and linen cupboard. The standard of fittings throughout the flat and, in particular, in the kitchen were of high quality. The committee considered the representations made on behalf of the landlord who supported the rent officer’s assessment. However, the committee considered that his figure of £1,068 per annum was a very substantial undervaluation of this flat particularly having regard to comparable flats where committee decisions had been registered and especially having regard to rents registered the same day by the committee in Lansdown Crescent. This was a high quality flat in a top residential area of Cheltenham but convenient to the centre of Cheltenham and its shopping facilities. By applying the requirements of section 70 of the Rent Act 1977 and using its own knowledge and experience the committee determined a fair rent of £2,000 per annum. The committee included in that sum an amount for services of £168 per annum being fully satisfied that such a sum represented quite a modest charge for the services provided by the landlord which were listed in the schedule supplied and which were described in some detail by the landlord’s representative. That is the decision which this court is invited to quash or, alternatively, declare to have been unlawful. The first point made by Mr Gordon, who appeared on behalf of Mrs Dunworth, is that the letter from the committee of June 20 1985 created a legitimate expectation that if she were to tell the committee that she wanted to withdraw her objection the registered rent would stand. Although he did not go on to spell it out, the effect of his submission was that if, with this expectation, she thereafter told the committee that she did want to withdraw her objection and the committee none the less went ahead with its determination that decision could be successfully challenged in this court. Mr Pleming for the committee was inclined to accept that this letter did create such an expectation. However, I, for my own part, am hesitant to accept that a determination following an indication of withdrawal would inevitably be open to a successful challenge in this court. I have in mind the words in form RR 102 (Rev 1982), which was sent to Mrs Dunworth by the committee on March 5 1985. This is a standard form running to four pages. One section, headed F, reads as follows: Withdrawing an Objection. Once you have made an objection to the rent fixed by the rent officer you do not have an automatic right to withdraw it if you change your mind. You will normally be allowed to withdraw if the other party agrees, unless the committee think that there are good reasons why they should continue with the case. Even when you have told the committee that you wish to withdraw your objection, you should not assume that this has been agreed to until they tell you. If you try to withdraw your objection a short time before a hearing is due to take place, there may not be enough time to consult the other party. The committee will continue with the hearing but they may allow you to withdraw your objection at the beginning of the hearing if the other party agrees. These words reflect the decision of the Court of Appeal in Hanson v Church Commissioners for England and R v London Rent Assessment Committee, ex parte Hanson [1978] QB 823, and in particular the words of Lord Denning MR at pp 832 G to 833 E, about104 withdrawal by one party from a dispute in which there is a public interest in addition to the interest of the parties. (See also Roskill LJ at p 836 B to E and Lawton LJ at p 839 C to F.) In this connection it is material also to note a passage in the judgment of the Privy Council in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 delivered by Lord Fraser of Tullybelton at p 638 E to F, namely: When a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. My doubt stems from those last eleven words, for it may be that what was said in the letter of June 20 1985 would have interfered with the statutory duty cast upon the committee. However, it is not necessary to say more than I have about that submission by Mr Gordon. The essential question which I have to decide is one to be determined according to the well-known Wednesbury* principles: was the decision of the committee to proceed to a determination on August 9 1985 in the absence of Mrs Dunworth and without an inspection one which no reasonable rent assessment committee could in the circumstances reasonably have reached? *Editor’s note: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Since the point at issue concerns whether or not the tenant had indicated or had tried to indicate that she wished to withdraw her objection to the registered rent, the question is to be answered by considering whether the only conclusion which could reasonably have been drawn by the committee was that this tenant had indicated an intention to withdraw her objection by August 9 1985, or that what she had written was ambiguous in the sense that, without further inquiry of her, she could not reasonably be regarded as someone who had not so indicated. I phrase the matter in that way because if a tenant who has set in train the process of determination by a rent assessment committee wishes that process to be halted short of such a determination it is for the tenant to indicate that such is his or her wish. No separate argument was addressed to this court by Mr Gordon on the basis that, although it might have been proper for the committee to make a determination, they could not properly have made one without an inspection of the flat. Looking at the correspondence, the position seems to me to be as follows. Mrs Dunworth’s letter of May 27 1985 gave rise to the question of whether or not she was indicating her wish to withdraw her objection; hence the letter from the committee of June 20 1985. No reply having been received by the committee, they wrote on July 10 1985 telling her what they assumed to be the position, in other words, that her objection had not been withdrawn. It is to be noted that she did not write in reply and say, ‘Contrary to your assumption, I do want to withdraw it’. Nor did she write and say, ‘But did you not get my letter of June 25 1985 telling you that I did want to withdraw?’  What followed from her was silence. Then on July 26 she was told that the hearing and the visit were both to be on August 9 1985. Her subsequent response was in the form of two documents. The first was the card which indicated two things: her preparedness to have her flat inspected and the fact that she would not attend the hearing. The second document was her undated letter which was received on August 2 1985. That letter also says, effectively, ‘I am not going to attend’. It then goes on to set out her point of view about an increase in her rent. I do not regard it as unreasonable for the committee not to have taken her statement that she had not intended the case to go as far as the Magistrates’ Court as an indication that she did not want it to be determined by the rent assessment committee. Nor do I regard it as unreasonable for the committee not to have read the word ‘was’ (the second word in the third paragraph of her letter) as indicative of a consideration which she previously had desired to have taken into account but no longer did. In all the circumstances I am not able to answer the relevant question in the way which would enable this determination to be quashed. I do hope that the applicant realises that this court has no power to consider the fairness of the rent which was determined. Nor could this court be swayed by its considerable feeling of sympathy for her because, unknown to the committee, she did in fact want to withdraw her objection and wrote a letter to that effect intending that it should be posted. It was no fault of hers that it was not. Having written it, she believed that her objection would be withdrawn and that the registered rent of £1,068 per annum would stand. She then found that, despite the fact that her landlord had asked for no further increase, the committee determined that her registered rent was to rise by a further £932 from £1,068 per annum to £2,000 per annum. If that is an unfair result, I can see no assistance for her other than that she might try to prevail upon her landlord’s kindness and consideration in not exacting the full measure of what the law entitles them to demand of her. The application must be dismissed. No order for costs except legal aid taxation.