Raymond, R (on the application of) v London Borough of Ealing

J U D G M E N T

1. LORD JUSTICE LATHAM: I will ask Lord Justice Neuberger to give the first judgment.

2. LORD JUSTICE NEUBERGER: This is an application for permission to appeal a decision of Bean J given in the Administrative Court on 18th March 2005. He refused a renewed application for permission to seek judicial review brought by Mr Martin Raymond, and refused permission to appeal. Mr Nyarumba Nota, on behalf of Mr Raymond, now seeks permission to appeal.

3. The facts are simple. Mr Raymond was a tenant, together with a Ms Clarke, of 13 Rutherford Tower, Southall, their landlord being Ealing Borough Council ("the council"). On 30th June 2003 Mr Raymond served an application on the council seeking to exercise his statutory right to buy a long leasehold interest of the flat. The council responded admitting that he had the right to buy.

4. Thereafter, on 17th October 2003 Ms Clarke served a notice to quit on the council which determined the secure tenancy on 17th November 2003. Shortly before the expiry of the notice to quit, the council had actually made a formal offer of sale of the flat to Mr Raymond, who accepted it on 19th December. The effect of the notice to quit was said, however, by the council to put an end not merely to the tenancy, but to Mr Raymond's statutory right to buy. In those circumstances, they refused to take the sale further and proceeded against Mr Raymond for possession.

5. The council's position so far as the right to buy was concerned appears, on the face of it at least, to be unassailable. Following three earlier decisions of this court, London Borough of Sutton v Swann, Jennings v Epping Forest District Council and Bradford City Metropolitan Council v McMahon, this court said in Bater and Bater v London Borough of Greenwich [1999] 2 FLR 993 that:

"It is now established beyond a peradventure that a right to buy is dependant on the existence of a secure tenancy to which it is incidental."

6. I should add that it is quite clear from those authorities that the secure tenancy must survive throughout the period during which the right to buy is sought to be exercised.

7. In those circumstances, it follows, subject to any new arguments that can be raised on his behalf, that Mr Raymond lost the right to buy, and indeed became prone to a claim for possession with effect from 17th November 2002.

8. On his behalf, however, it is said, principally as I understand it in reliance on the decision of the European Court of Human Rights in Connors v United Kingdom(2004) 40 EHRR 189, that he should be nonetheless entitled to exercise the right to buy.

9. So far as Connors v United Kingdom is concerned, it seems to me, with respect, to take matters no further so far as Mr Raymond's right to buy is concerned. It may, subject to the interrelationship between the decision of the European Court of Human Rights in Connors and the decision of the House of Lords in Harrow London Borough Council v Qazi[2004] 1 AC 43, be of some possible assistance to Mr Raymond in resisting the claim for possession. But that is not the issue before us. Article 8, as my Lord pointed out in argument, is concerned with the right to possession (to put it in English terms) or the right to a home, whereas what Mr Raymond is complaining of is a right to ownership. To my mind, therefore, there is nothing in the main point on which Mr Nota seeks to rely.

10. If any Article of the Convention was engaged, it seems to me that it would be Article 1 of the First Protocol, the right to property. But as my Lord also pointed out in argument, the nature of the property right which Mr Raymond is seeking to enforce is a right contained in a statute, and that is a right which only survives so long as the secure tenancy survives. Accordingly, quite rightly in my view, no weight is placed on Article 1 of the First Protocol.

11. Mr Nota also suggests that Mr Raymond may be able to invoke a legitimate expectation. Again that runs into the difficulty that, in so far as any expectation was legitimate, it rested on his statutory right to buy and therefore contains the seeds of its own destruction, because that right to buy only survives so long as the secure tenancy survives.

12. Alternatively, it is said that Mr Raymond's legitimate expectation was encouraged by something he was told by an employee of the council. Again, it seems to me that there can be nothing in that, because it is not suggested that he or anyone else acted in reliance on what that employee of the council is said to have told him.

13. Mr Nota also told us that Ms Clarke would not have served notice to quit if she had appreciated its consequences. Assuming that is right, it does not assist Mr Raymond's case because it does not engage any aspect of the European Convention on Human Rights, nor does it engage any rights in domestic law. The fact that someone acts under a mistake or misapprehension or fails to appreciate what the consequences of his or her action may be, is not of itself enough to give rise to any rights.

14. It was also, I think, suggested that Bater and Bater v London Borough of Greenwich and the cases on which it relies should not be followed. But to my mind they represent a clear and consistent line of authority in this court. Indeed, it is hard to see how they could be other than right in light of the way in which the statute is phrased.

15. In those circumstances, while one can well understand Mr Raymond's strong disappointment as to the circumstances in which he finds himself, it seems to me that Bean J was entirely right to dismiss the application. For my part, I would dismiss the application for permission to appeal.

16. LORD JUSTICE LATHAM: I agree.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)