Kilby, R (on the application of) v Basildon District Council [2007] EWCA Civ 479 (22 May 2007)

Kilby, R (on the application of) v Basildon District Council [2007] EWCA Civ 479 (22 May 2007)

Clause 11 of the Council's tenancy agreement, which required the consent of tenants' representatives for any variation of tenancy terms, is incompatible with sections 102 and 103 of the Housing Act 1985. The statute provides an exclusive code for variation of secure tenancies, allowing variation only by agreement, pursuant to existing contractual terms (for certain matters), or by unilateral notice after consultation. The Council cannot contractually fetter or delegate its statutory power to vary tenancies by notice, and any such contractual restriction is void.

Citation
[2007] EWCA Civ 479
Parties
Appellant/claimant: The Queen on the application of Kilby; Respondent/defendant: Basildon District Council
Jurisdiction
England and Wales
Judgment Date
22 May 2007
Procedural Posture
Appeal (judicial Review) / Court of Appeal (civil Division)
Outcome
appeal dismissed
Legal Topics
Statutory Interpretation, Variation of Tenancy Agreements, Fettering of Discretion, Delegation of Statutory Powers, Secure Tenancies
Public Law Housing Law Local Government Law Statutory Interpretation Variation of Tenancy Agreements Fettering of Discretion Delegation of Statutory Powers Secure Tenancies

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Parties

The Queen on the application of Kilby

Appellant/claimant

Basildon District Council

Respondent/defendant

Procedural Posture

Appeal (judicial Review) / Court of Appeal (civil Division)

Legal Issues

  1. 1 Whether a local authority can lawfully bind itself by contract to subject its statutory power to vary tenancy agreements by notice to the approval of tenants' representatives under the Housing Act 1985.
  2. 2 Whether clause 11 of the Council's standard tenancy agreement unlawfully fetters or delegates the Council's statutory powers of variation under sections 102 and 103 of the Housing Act 1985.

Ratio Decidendi

Clause 11 of the Council's tenancy agreement, which required the consent of tenants' representatives for any variation of tenancy terms, is incompatible with sections 102 and 103 of the Housing Act 1985. The statute provides an exclusive code for variation of secure tenancies, allowing variation only by agreement, pursuant to existing contractual terms (for certain matters), or by unilateral notice after consultation. The Council cannot contractually fetter or delegate its statutory power to vary tenancies by notice, and any such contractual restriction is void.

Court Disposition

appeal dismissed