Local government and agreements - secure tenancies - variation clauses - variation of tenancy agreement - validity of clause providing for variation only where majority of tenants in favour

Maurice Kilby v Basildon District Council: QBD (Admin) (Mr Justice McCombe): 26 July 2006



The claimant tenant (K) applied for judicial review of the decision of the defendant local housing authority to approve and implement a new secure tenancy agreement.


K's original secure tenancy agreement contained a clause that provided that the authority could only vary the terms of the agreement if a majority of the tenants' representatives agreed to the change. The local authority's new agreement did not contain that clause and it considered that the clause was ultra vires and was void in so far as it conflicted with the provisions of sections 102(1) and 103 of the Housing Act 1985 and purported to give preliminary notice of an intention to vary the agreement, pursuant to section 103 of the Act.


K contended that the local authority had validly exercised its statutory powers to manage its properties and grant tenancies, which included a power to agree clauses such as that in issue, and that, in doing so, it was perfectly lawful for it to agree not to exercise certain other statutory powers.


Held, the clause was void as an illegitimate fetter on the local authority's statutory powers under the Act. The statutory powers and duties conferred on local housing authorities by the Act envisaged that secure tenancies might be granted by such authorities for the purposes of alleviating social housing need. If the authority had purported to contract irretrievably out of those powers by agreeing to the clause in K's tenancy agreement, Parliament's intention and purpose would be frustrated (R v Brent LBC, ex parte Blatt, (1992) The Independent, 20 December distinguished).


Application refused.


Nigel Giffin QC, Liz Davies (instructed by Sternberg Reed Taylor & Gill) for the claimant; Andrew Arden QC, Andrew Dymond (instructed by the local authority solicitor) for the defendant.