This is an application by Mr and Mrs Frank Smith for a finding under sec. 68(4) of the Housing (Scotland) Act 1987 (hereinafter "the Act") that the applicants have a right to purchase the subjects occupied by them known as Barnhill Schoolhouse, Falkland Crescent, Broughty Ferry, Dundee. The schoolhouse is tenanted by Mr Smith and subsequent references to "the applicant" refer to him. Mrs Smith's application is clearly dependent on his right to buy.
The respondents dispute the right to purchase on grounds which reflect the provisions of paragraphs 1 and 8 of Schedule 2 of the Act. The right to buy is given to "secure" tenants as defined by the Act. It was agreed that the applicant fell to be treated as a secure tenant unless the respondents could establish that one or other of these provisions of Schedule 2 applied. They are in the following terms:
"(1) A tenancy shall not be a secure tenancy if the tenant (or one of joint tenants) is an employee of the landlord or of any local authority or development corporation, and his contract of employment requires him to occupy the house for the better performance of his duties.
(2) In this paragraph "contract of employment" means a contract of service or of apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing.
8. A tenancy shall not be a secure tenancy if the house forms part of, or is within the curtilage of, a building which mainly -
(a) is held by the landlord for purposes other than the provision of housing accommodation; and
(b) consists of accommodation other than housing accommodation".
We heard evidence and submissions at Edinburgh on 25 and 26 January and at Dundee on 30 January 2001. We carried out a site inspection on the latter date. At the hearing Mr Smith appeared on his own behalf. He led evidence from George Ford and from Jim Cunningham both, like him, now employed as Facilities Co-ordinators by the respondents. He also led evidence from Jack Hogan, Client Monitoring Officer, employed by the respondents. Mr David Bartos, advocate, appeared for the respondents instructed by their solicitor Roger Mennie. He led evidence from Mrs Gillian Ross Pond, employed by the respondents as Education Services Manager.
The following facts were admitted or established in evidence:
Barnhill Primary School and the schoolhouse, which Mr Smith has occupied since June 1988, were built in about 1974 on a total site of 1.789 hectares (4.4 acres). It is sufficient to describe the layout in very broad terms. The school grounds lie to the south of Falkland Crescent. The perimeter of the grounds is a rectangle except where the north east corner meets the curve of Falkland Crescent. The longer axis of the rectangle is from north to south. The school buildings and playgrounds occupy the south half of the grounds. The school buildings are approached by a private road from Falkland Crescent running along and within the eastern boundary of the rectangle. The schoolhouse which is a single storey detached bungalow, lies immediately to the west of this private road and extends into the corner formed by the private road and Falkland Crescent. Access to the house and its garden is by a pedestrian gate situated on the private road. The distance from the house to the school buildings is of the order of 40 metres. Immediately beside the house and enclosed by hedges there is an environmental wildlife garden used by the school children. Closer to the school there is a tarmaced area used for car parking. Most of the remaining area of the north half of the grounds, lying to the west of the schoolhouse, is occupied by playing fields.
The school and its grounds are enclosed by a wire mesh fence as are the house and garden. Until about two years ago there were gates across the private road at a point to the north of the said pedestrian gate in the fence giving access to the house and garden. At the time it was, accordingly, necessary to go through the school gates to gain access to the gate in the schoolhouse fence and, in turn, to the house. From the gates the perimeter fence ran a short distance to the east and then turned south to form the east edge of the said rectangle. On the west side the gates met the front fence of the house and garden. The garden is of irregular shape, one corner of it running into the corner formed by the private drive and Falkland Crescent. From the end of the garden fence abutting Falkland Crescent, the main school fence runs west along the north edge of the said rectangle and continues round the outside of the school grounds interrupted only by two pedestrian gates, one on the south and other at the south end of the east side.
The garden of the house slopes up from Falkland Crescent and about 2 years ago Mr Smith asked the council to make a vehicular entrance from Falkland Crescent to his garden so that he could park his car off the road. The council investigated that but decided the cost was prohibitive. However, they agreed, instead to move the gates to the school some 10 metres to the south. As a result the gates are now on the extended line of the south boundary of the schoolhouse garden. Mr Smith can now take access to his house without going through the school gates. He is now in the habit of parking his car on the private road outside the gates out of school hours but it was not contended that he has any right, or need, to do so.
Mrs Ross Pond described the curtilage of the school as being formed by the main perimeter fence, the very short stretch of garden fence on Falkland Avenue, the front garden fence along the edge of the private road and the new school gates. This description implicitly recognised that because the gates were the obvious boundary of the school precincts, the private roadway between the gate and the Crescent was not within the curtilage of the school. However, as it was clear that the private road had been built as part of the school and fell within the overall rectangular shape of the school grounds, we were anxious on our site visit to see whether our impression of the curtilage was consistent with that of Mrs Ross Pond in relation to the private road. Visually, the whole road can be identified as part of "the school". There is a pavement on the east side which is separated from the carriageway by a strong steel barrier. This is patently for protection of school children and serves to emphasise the nature of the private road as serving a school purpose. It can be described as a private driveway. The steel barrier extends from Falkland Crescent up to the gates and runs up to about the line of the school buildings. This provides a strong visual connection between the private drive and the school grounds within the gate. The boundary fence which ran from the original position of the gate is still in that position. However it now serves no useful purpose. The line of the boundary is obscured at the north east end by a line of trees.
The applicant was formerly the janitor at Barnhill School. By his contract of employment as janitor he was "required to take a tenancy of the school house". We heard evidence that the main benefit of a tied house for a traditional janitor in performance of his duties was related to the duties as boilerman. Janitors traditionally required to attend coal fired boilers out of school hours. However, Barnhill School was built with oil fired boilers and this problem did not arise. We have, however, little doubt that for the traditional type of janitor, residence on site is normally to be regarded as required for better performance of his duties. There may be circumstances where that is not so but it was not seriously disputed that residence in the schoolhouse facilitated performance of the applicant's general duties as janitor. He was a caretaker and was, for example, available as a keyholder out of school hours.
Janitors occupying school houses administered by the respondents did so at a rent assessed at 25% of the normal level of rent for local authority housing. They were entitled to a rebate on council tax. This rebate was paid through their salary. The applicant as occupier of the house at Barnhill had the benefit of this arrangement while he was a janitor. He continues to have the benefit of this arrangement.
In 1999, the respondents carried out a complete reorganisation of the Janitorial Services. The detail of reorganisation was agreed between the respondents and the relevant unions. It was realised by the respondents, as employers, that radical change, "at a stroke", would give rise to anomalies. The agreement was based on recognition that there would be a great deal of change and movement of jobs. It was undesirable that existing employees be uprooted from their homes. The hope was that the agreement would not prejudice future policy. As appears from the documents quoted below, the system changed completely from use of janitors dedicated to individual schools, to use of a team to look after a group or "Cluster" of schools consisting of a Secondary School and a group of Primary Schools. The team was to consist of a Facilities Co-ordinator and a number of Facilities Assistants.
By letter of 4 February 2000 the applicant was offered "the job of Facilities Co-ordinator". He accepted this. The letter enclosed a 'Statement of Employment Particulars' detailing the terms and conditions of the employment. This document set out the details under a wide range of headings. Under 'Place of work', it said, "Grove Academy. You may be required to work in any other job appropriate to your grade at such other place of employment in the Council's service as may be required". Under the heading 'Miscellaneous' the document provided: "During your employment with the Council, terms and conditions of your employment will be determined by collective agreements negotiated with the Scottish Joint Council for Local Government Employees as embodied in the "Red Book" and/or as amended/supplemented by collective agreements negotiated between the Cuncil and the appropriate trade union(s). Further details are available in the attached Addendum".
The relevant local agreement was headed: "Restructuring of Janitorial Services City-wide". It narrated: "Following a series of meetings with the local trade union representatives and subsequently with the full-time official from GMB and the local representative with delegated authority to negotiate on behalf of the TGWU, the following agreement was reached:-
The janitorial services will be grouped in geographical clusters, as outlined in Appendix A. Facilities Assistants will be deployed at any of the nursery, primary and secondary schools within the Cluster and, on occasions, may be deployed in another Cluster.
Each Cluster will be staffed by one Facilities Co-ordinator and the appropriate number of Facilities Assistants. Agreed Job Descriptions are attached as Appendix B and C. All postholders will be required to carry out the full range of duties". The agreement then gave details of the National Agreement on Pay and Conditions of Service, which are not relevant to the present case. Certain specific details were then set out covering duties which had previously attracted over-time payments. Each Facilities Assistant and Co-ordinator within the Cluster was to attend a maximum of five out of hours call-outs per month without additional pay. Additional call-outs and, for example, Sunday lets might attract additional pay. It was provided that: "The Facilities Co-ordinator will be required to ensure that all call-outs Saturday and Sunday lets and late night working are shared equitably amongst the Facilities Assistants and himself".
The agreement further provided that: "The Facilities Co-ordinators will work a 37 hour week. Generally the working hours will be 7.00am to 4.30pm. However this may vary between Clusters and depending on the exigencies of the service. It is agreed that Facilities Co-ordinators will respond to requests for assistance from Facilities Assistants outwith normal working hours without additional pay".
The important conditions relating to Appointments and Tied Accommodation (hereinafter "the Accommodation Provisions") were in the following terms:
"All existing permanent janitorial employees will be given the opportunity to apply for the posts of Facilities Co-ordinator.
With the exception of existing employees, the Facilities Co-ordinator is required to live in a tied house within the Cluster. Existing employees will not be required to move into a tied house in the Cluster, although all new employees to the janitorial/facilities service will be required to occupy a tied house within the Cluster, where available.
The existing employees who are subsequently appointed to one of the posts of Facilities Co-ordinator, if they currently occupy a tied house, will be required to react to situations outwith working hours at the school in the vicinity of their house, eg report incidents to the Police, respond to contact by the Police, call out the appropriate Co-ordinator/Assistants, be keyholder, etc.
The Council's policy required janitorial employees to occupy tied accommodation where it is available. However, the above proposals acknowledge the anomalies which have arisen as a result of a Senior Officer in Tayside Regional Council's Education Department varying the policy without authority".
Mr Smith's Cluster is based on Grove Academy, a secondary school. This lies to the south of Barnhill Primary at a distance of approximately two miles. The other schools in the Cluster are Barnhill and Eastern, which are linked for the purposes of the Facilities Assistants and Powrie and Forthill, similarly linked. Of the Facilities staff employed in the Cluster, two live in school houses at Grove Academy. Another lives at Powrie Schoolhouse. There are now no school houses at Eastern or Forthill. In short, of the seven facilities staff in the Grove Cluster, three do not live in school houses.
The job description for a Facilities Co-ordinator ran to some four pages. The 'job purpose' was expressed as follows:
"Under direction/guidance of the Client Monitoring Officer, be responsible for co-ordinating the facilities management across the geographic Cluster, ensuring security and maintenance of premises, monitoring of cleaning standards and the health and safety of users and giving due regard to the Head Teachers' priorities and Health and Safety. The co-ordinating role includes the deployment and involvement in all related staffing issues relating to Facilities Assistants and School Crossing Patrollers."
The 'main duties' were itemised under the sub-headings: Supervision of staff; Cleaning; Security of Premises and Contents and Health and Safety of Users; Lighting, Heating of Premises (including maintenance and operation of plant); Handy-person, Maintenance and Porterage Duties; and Other Duties. The following provision appeared under the last heading: "This job description is a broad picture of the post at the date of preparation. It is not an exhaustive list of all possible duties and it is recognised that jobs change and evolve over time. Consequently, this is not a contractual document and the postholder will be required to carry out any other duties to the equivalent level that are necessary to fulfil the purpose of the job".
In course of evidence and submissions, reference was made to various specific duties listed under the heading of "Security etc". The following may be noted:
It is also appropriate to set out the terms of said Appendix 1: "Facilities Co-ordinators are expected, under normal circumstances, to patrol school premises both indoors and outdoors, as follows:-
The documentary material bearing upon the terms and conditions of appointment made no mention of the special arrangements for rent or council tax. The applicant continues to pay the reduced rent and to receive rebates of council tax with his salary.
The change from janitor to Facilities Co-ordinator was a complete and obvious change of job. The applicant was given a presentation when he "left" Barnhill School. Children and parents no longer perceive him as directly connected with the school. They would not now attempt to call at his house in connection with school matters. He is now based at Grove Academy. He exercises his responsibilities through his subordinates, the Facilities Assistants. Mrs Ross Pond said that Mr Smith, as co-ordinator, could organise the staffing of the Cluster. In course of his work he might attend at any of the schools. His work as Facilities Co-ordinator did not carry any special responsibility for Barnhill School.
During school hours and agreed late opening hours, when the school is available for use by pupils or for meetings or social functions, the duties of supervision are allocated to an appropriate Facilities Assistant. If special access to any of the schools is required for deliveries by cleaning or maintenance contractors, for example, arrangements are made for keys to be supplied. No reliance is placed on the applicant, as adjacent resident, for any routine purpose connected with Barnhill School.
From rooms to the front of his house the applicant has no view of the school grounds. From the back of the house his view of the school is, in effect, restricted to the playing field area. From the garden he would be able to see the playing field area, the environmental garden, and the north side of the school. Because of the rise in the ground he would not be able to see children standing close to the north side of the school buildings. He would not be able to see any of the more vulnerable parts of the school. Because of this, we are satisfied that, whatever may be the case in other schools, the role played by the occupier of the school house at Barnhill in relation to detection of wilful trouble makers is of no practical significance. If the applicant did notice anyone on the open playing fields he would warn them off. He asserted that he would not carry out any checks within the school grounds for damage or vandalism over weekends. Although Mrs Ross Pond expressed some surprise about this, we are satisfied that it is no part of his duties as set out in the written material before us to carry out such positive inspection out of his working hours.
From his garden the applicant would probably hear alarm bells from the school buildings although the sound might be distorted by wind. If the wind was in the wrong direction he would not hear alarms from within his house. The alarm would probably not be loud enough to waken him if asleep.
The alarm system is directly connected to the Police. The Police have details of keyholders for each school and would work through the list of keyholders until they made appropriate contact. Mr Smith is first on their list of keyholders for Barnhill. However he attached little significance to that. He said that other keyholders would be able to attend almost as quickly. The speed of the Police response was such that any of the present keyholders could be expected to be there from their homes at much the same time as the Police. We accept this evidence although, of course, it assumes that all keyholders live in relatively close proximity to their Cluster.
The facilities staff are under instruction not to enter the school buildings on hearing alarms but to await the attendance of Police or Fire Service. They are not to attempt to accost intruders.
If Mr Smith noticed a broken window out of hours he would report it immediately. He would not, however, report vandalism such as graffiti, until working hours. He would be unlikely to be able to see a broken window from the schoolhouse.
It appeared that Mr Smith had made repeated annual attempts to buy the house. His letter of 30 June 2000 made clear his view that the request raised "the entire issue of 'Tied Housing', a matter that needs to be addressed and resolved finally by all departments of this council". Mr Smith appears to have been an active member of his union. We heard a good deal of evidence of the policies and practice of the respondents and their predecessors, Tayside Regional Council, in relation to the sale of tied houses, including school houses. We are satisfied that this material is irrelevant to the issues before us. This chapter of evidence appeared to have been led to show that it would be reasonable for persons such as the applicant to be allowed to buy his house. The whole issue of tied housing gave rise to strong feelings. One witness spoke of it as a "medieval concept". It is clear that the evidence was not designed to meet the issues raised by the provisions of Schedule 2. Indeed, Mr Smith started to give his evidence by stating that he agreed that he was not a secure tenant but that his contention was that in the whole circumstances he was entitled to buy. (We understood him to accept that we would not be able to treat his concession as binding!). It may be said that on the information available to us it seems that Mr Smith would have had no statutory right to buy as janitor. Accordingly we are not concerned with the history of his request nor with the policy bearing upon earlier refusals. Our task is simply to apply the statutory provisions to his present employment.
We recognise that if the respondents had had a policy of selling school houses - which was not conceded - this might have been evidence which would justify an inference of recognition that it was not necessary for employees to live there for the better performance of their duties. However we heard some evidence of the cost of maintaining "janitors" in school houses. It can be seen that determination of policy requires consideration of a variety of issues. Employers might well wish staff to live in tied houses for the better performance of duties but, as landlords, recognise that in certain circumstances this might be impracticable. There was no evidence of the broader issues bearing on policy. It was apparent that the problem was not limited to school houses. We think it unnecessary to make any findings as to the policy and practice. Neither bears directly on the issue before us and no positive attempt was made to draw any relevant inferences from that chapter of evidence.
For completeness, it should be added that Mrs Ross Pond declined to express any opinions in cross-examination on the basis that she was speaking only to formal policy. It was put to her by Mr Bartos that the policy was that janitors should occupy tied houses if available. She said that policy had not changed. We took her to mean that the policy was that school houses should remain as tied houses. However, the expression, perhaps inadvertent, of that policy in terms of "janitors" suggests that it had not been positively revised to take account of the radical change in the scheme of operation of janitorial services. In any event we are not persuaded that the policy as such is relevant. Similarly, her evidence of practice does not appear to bear on the statutory tests. It may be noted Mrs Ross Pond spoke to a list of some 77 co-ordinators and assistants of whom only 42 were in "tied" housing. Of the Facilities Co-ordinators two out of 11 did not live in a tied house. Another lived in a school house some distance from his own Cluster.
Because Mrs Ross Pond made clear in cross-examination that she was not intending to give evidence of her own opinions, we can give little weight to such positive views as she expressed in course of evidence-in-chief. We heard no evidence from the respondents as to any positive need for a Facilities Co-ordinator to occupy a house near a particular school.
The only evidence bearing on better performance of duties came from acceptance by several witnesses of certain broad propositions put in relation to the obligation to report any incidents noticed by a resident of a school house. It was, for example, accepted that if a resident noticed an intruder and reported it to the Police this would enable a quicker response than if he had not noticed it. If he had not been living at that address he was unlikely to have noticed the intruder. Accordingly it could be said that residence in the school house led to a quicker response. The witnesses, of course, stressed that although Facilities staff might be resident in a particular house they might well be absent when any incident occurred or might be watching the television with the curtains drawn. We heard no expert or specialised knowledge bearing on this matter. One witness did give evidence of experience when vandalism at a particular school dropped dramatically when the janitor's house was left vacant. It was thought that pupils had previously acted out of deliberate malice towards the janitor. We do not think that any useful general conclusions can be drawn from this. We do not think that the evidence took us further than would be apparent as a matter of obvious inference.
Mr Bartos accepted that the onus was on the respondents to establish that the circumstances of the case brought it within one or other of the relevant provisions of Schedule 2 set out above. He dealt with the law bearing on paragraph 1 under reference to De Fontenay v Strathclyde Regional Council 1990 SLT 605; Hughes and Another v Greenwich London Borough Council 1994 1AC 170; Surrey CC v Lamond 1999 31 HLR 1051; Strathclyde Regional Council v Gallagher (24th November 1994), a decision of the Inner House unreported on the merits but reported in relation to leave to appeal at 1995 SLT 747; Young v Strathclyde Regional Council LTS/TR/1989/1; Campbell v Highland Regional Council 1996 HLR 36; and Rockcliffe Estates plc v Co-operate Wholesale Society Limited 1994 SLT 592.
He submitted that it was necessary to establish two separate matters: that the contract required the applicant to occupy the house; and, secondly, that it required this for the better performance of his duties. De Fontenay established that the term could be implied if it was "necessary or obviously called for in the circumstances": page 608L. He accepted that it would not have been possible to imply a relevant condition if nothing whatever had been said in the contract. However, this case could be distinguished from Hughes because the contract itself made provisions from which a condition of occupancy could be implied.
Mr Bartos accepted that there was an apparent conflict between the effect of the decision in Hughes and the Scottish approach as illustrated by the decision in Gallagher. He submitted that this was not an irreconcilable clash of approach. In the latter case the opinion of the Court included the proposition that: "the words of the statute envisaged that if the particular duties would not be so well performed if the employee lived elsewhere then it is open to imply a requirement to occupy the premises for the better performance of the duties". Hughes appeared to say that where the matter turned on better performance it would never be possible to come up to the test necessary to imply a term. The Scottish decision did not give specific examples of when such a term might be implied. As interpreted by the decision in Surrey CC v Lamond, it was clear that Hughes was not to be read as requiring a test of absolute necessity. A realistic approach was needed and the observation that it was "open to imply a requirement" could be read as simply pointing in the same direction as the approach in Surrey CC. The observation did not have to be read as meaning that an implied term would be established in every case where it was possible to say that occupancy would lead to better performance. Mr Bartos made no attempt to found on any different principle of Scots law. He was content to proceed on the basis of the decision in Hughes as interpreted in Surrey CC.
On the facts, he submitted that although there was no express term requiring occupancy such a term should be implied. It was necessary to have regard to the whole background. The policy of having janitors occupy houses was clear. The common intention of parties to the Local Agreement was clearly that existing janitors who became Facilities Co-ordinators and already occupied tied houses should have to stay in them. This, he said, was shown in two ways. It was a clear inference from the language of the provisions relating to appointments and tied houses. Although it could not be doubted that the provision that "with the exception of existing employees, the Facilities Co-ordinator is required to live in a tied house within the Cluster" gave support to the applicant's contention, the prima facie meaning did not in fact make sense when taken in the whole context. The provisions had to be read as a whole. What was meant was obvious. Facilities Co-ordinators were to live in a tied house within the Cluster unless they were existing employees who did not live in a tied house or lived in a tied house in another Cluster. In any event, the subsequent provision dealing expressly with duties incumbent on employees who occupied a tied house clearly implied an obligation to live in the house. The obligation to continue to occupy the tied house was so obvious that the parties must have intended it.
He submitted that the duty of a Facilities Co-ordinator to ensure security included a duty to report incidents and deal with smashed windows and other damage. He had to react out of hours. If he was not resident, reaction would be slower. Mr Bartos admitted that this duty might not be particularly onerous. There was no obligation on an applicant to be at home in the evenings nor to keep his curtains opened but he did have a duty to report what he did see. It was a positive duty and could not be disregarded. There was no doubt that he was paid for it in terms of abated rent and council tax. On the basis that the duties, however modest, could not be performed unless living in the house, the reasons of pure practicability pointed to an inference of an obligation to continue to live in the house.
If an obligation to continue to occupy the house could be inferred, the second question was whether that was to enable him to perform his duties better. It was obvious that his reaction would be quicker. His very presence might be a deterrent. Taking his duties as a whole it was plain that residence would enable him to perform them better. Indeed non-residence would not enable him to perform the specific duties at all.
In respect of paragraph 8, Mr Bartos made reference to McTurk 1990 SLT (Lands Tr) 49; Campbell v Highland Regional Council, supra; Barron v Borders Regional Council 1987 SLT (Lands Tr) 36; Burns v Central Regional Council 1988 SLT (Lands Tr) 46; Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65; and Walker v Strathclyde Regional Council 1990 SLT (Lands Tr) 17.
Mr Bartos submitted that the house was within the curtilage of the school. It was close to the school buildings. Although it had its own enclosure, it was within the outer school fence. It faced across the school private road. It took its access from that road. It was surrounded by school property except the very short stretch onto Falkland Avenue. It had been built for school purposes. Although the occupier's job had changed, he still had responsibilities for the school. His duties benefited the school and could be said to show that use of the house was for the comfortable enjoyment of the school. Although Mrs Ross Pond had treated the private road north of the gates as being outwith the curtilage of the school that was simply her opinion. The road could be seen as part of the curtilage. The present position of the gates was not determinative. On a proper view the house and garden was within the school curtilage.
Mr Smith's submissions in response were largely directed to detail of the evidence already given. He made no submissions on matters of law. We have, of course, had regard to the full submissions of both parties in reaching our conclusions as to fact. It is unnecessary to set out further detail or to set out the submissions in relation to credibility and reliability of witnesses. We were satisfied that all the witnesses were trying to give truthful evidence. In any event we are not persuaded that there was a significant dispute over any relevant issue of fact. Where disputes arose they were largely directed at matters of policy and practice. We have set out, above, our view that the evidence on this had no real bearing on the issues before us.
We did hear conflicting opinions as to the value of a resident caretaker of some sort in simply deterring intruders. We had no expert evidence bearing on this. There was insufficient material to contradict the common sense view that awareness of the presence of a "resident caretaker" would tend to deter casual intruders. However this does not bear directly on the present situation. Mr Smith has no positive obligations in relation to the school out of hours. It is misleading to think of him as a resident caretaker.
Although Mr Bartos made no attempt to rely on Scottish authority as being more favourable to the respondents and his approach was, understandably, not challenged by Mr Smith, we consider that it is necessary for us to be satisfied that our approach to the application of the provisions of paragraph 1 is consistent with any authority binding upon us.
It is clear that the decision of the House of Lords in Hughes v Greenwich London Borough Council must be our starting point. That case concerned the headmaster of a boarding school whose employers had built a new house for him within the school grounds. It was in a secluded position remote from the school itself and accepted as not being within the curtilage. His application to buy was resisted on the basis of the provisions of Schedule 1, paragraph 2(1) of the Housing Act 1985 which are, effectively, in the same terms as said paragraph 1 of the Scottish Act. There was nothing in the written contract of employment bearing on the matter. It was argued that it was an implied term of the contract of employment that he reside in the house. The decision of the Court was given in the speech of Lord Lowry with whom the other members concurred. At page 177B he said:
"In my opinion, the only way in which the term which the council need to imply here could be implied into the contract would be to show that, unless he lived in [the house] Mr Hughes could not perform his duties as headmaster. Mr Reynold has insisted that to put the case in this way amounts to glossing or even distorting the words of paragraph 2(1) of Schedule 1 which merely speaks of "the better performance of his duties". It is at this point that I must part company with counsel's argument. In order that a term may be implied, there has to be a compelling reason for deeming that term to form part of the contract, and that compelling reason is missing in this case, unless it was essential that Mr Hughes should live in the house in order to do his job, but the facts found contradict that proposition". His Lordship then referred to the decision in Luxor (Eastbourne) Ltd v Cooper  AC 108 and Liverpool City Council v Irwin  AC 239.
It is, we think, plain from the reference to these cases that his Lordship did not intend to enunciate any novel proposition bearing on the specific provision of the Schedule. On the contrary he was simply reinforcing the need to apply the accepted common law approach to the implication of a term. If a term could only be implied where it was essential for proper performance it could not be implied simply on the basis that it would lead to a higher standard of performance. Lord Lowry expressed that as follows, "Once the principle stated above is accepted, it becomes pointless for the council to argue that a requirement must be implied in a contract just because in fact for Mr Hughes to live in [the house] may have promoted (or even did promote) the better performance of his duties".
His Lordship went on to quote with approval a passage from one of the judges in the court below. Balcombe L. J., commenting on a parallel to be drawn from a decision of the House of Lords in a rating case, had said: "It seems to me to be implicit in this passage that a term can only be implied that an employee shall occupy a particular house when such occupation is essential for the performance of his duties; - - - -. When the occupation is required only for "the better performance" of his duties, then an express term is needed; there is no basis upon which a term can be implied".
Plainly, their Lordships approved a straightforward approach to the words "contract of employment requires" as meaning a contractual obligation to occupy. Such an obligation can be implied in accordance with normal established principles. In the context of their decision it was unnecessary for their Lordships to consider the detail of these principles. Accurate description has been described as "fraught with difficulty": McBryde Contract 6.03. However the broad effect of the proper approach is clear and requires a standard which could not be satisfied simply on a comparative assessment.
The decision did not require discussion of whether it was the duties of the contract as a whole which had to be considered in determining the need for occupation. However, Lord Lowry quoted with approval a passage from the court of first instance considering "all reasonably foreseeable duties properly requirable of the applicant as headteacher". We think it plain from the context that had it been possible to identify any duty which required occupation for its proper performance of the house, the judge would have regarded that as justifying an implied term obliging such occupation. A critical finding of fact was that the headmaster "could do all (our emphasis) that was required of him without any loss, actual or perceived" while occupying a different house.
It is important to note that Lord Lowry also made the point (at page 179B) that an obligation to live in the house would not necessarily be for better performance of duties. Plainly he considered that this required separate assessment.
The decision in Hughes had to be applied by the Court of Appeal in Surrey CC v Lamon. The tenant there had been employed as a school caretaker and was provided with accommodation near the school. The Court heard evidence of the wide range of duties required of a caretaker and distinguished the case on its facts from Hughes. Lord Woolf MR stressed that when giving effect to what Lord Lowry had said, it was important to remember the particular situation with which he was dealing. He continued:
"In order that the case of Hughes can be properly applied to situations such as this, a court has to discover what are the duties which an employee is required to perform, and, then, having regard to the nature of those duties, ask itself whether or not it was really practical for the duties to be carried out if the employee did not live at the premises in question. If it was really impractical to carry out the duties unless living in the property in question, then that is a situation in which the necessary term can be implied so the situation complies with the requirements of the Schedule.
The approach of Lord Lowry, in my judgement, was not suggesting any other test. When you have a requirement for a regular attendance at the premises at which you are employed, both within and outside normal working hours which it would be difficult to fulfil unless you lived at the accommodation provided by your employer so you will be able to carry out your duties properly, then it can appropriately be said that it is required for the better performance of your duties to live at that accommodation": page 1057.
Lord Justice Brooke concurred. He observed,
"The school authorities had purchased (the house) for their caretaker … There was no question of the Lamonds living anywhere else in the vicinity. They could not afford to do so, and there was no other accommodation realistically available to them. It was the school caretaker's house. In my judgement, the judge applied the basic principles of contract law correctly": page 1058.
The observations in Surrey can be seen as doing no more than restating the established test for an implied term. Lord Lowry had used the word "essential" in the circumstances of Hughes. However, the context was of a contrast with a submission that it would be enough to show that residence permitted better performance. We consider it consistent with established authority that what is to be asked is whether the term is necessary in a practical sense to produce the result that the parties must have intended. If the contract is incapable of practical performance without the implied term then it may be appropriate that it be implied: see, for example, Rockliffe Estates plc v Co-operate Wholesale Society Ltd, at page 594J.
It is clear from these authorities that the provision "contract of employment requires" has been interpreted in England as meaning that there must be a contractual obligation of occupation and that such a term will only be implied on the basis of well established principles. In Campbell v Highland Regional Council, the Tribunal concluded, on the basis of a passage from Gallagher, that this was not the correct approach. However, the Tribunal had not been referred to the decision in Hughes.
Mr Bartos recognised that dicta in Gallagher might point to a different construction of the provisions of paragraph 1 from that adopted in Hughes. He touched briefly on the question of whether the Tribunal would be obliged to follow the authority of the House of Lords. The decision turned on construction of an English statute. However, it was apparent that the legislative provisions were virtually identical and the statutes were plainly intended to give effect to the same policy in both England and Scotland. He suggested that it might be necessary to follow the decision of the House of Lords. Further, as we discuss below, it appears that the aspect of the decision in De Fontenay, which might possibly have been thought to conflict with the construction preferred in Hughes, was based on a concession by counsel. It also appears from the reported decision in Gallagher, that the question of construction of the statute was not at any stage an issue in that case. The Court expressly records that the respondents did not dispute any of the matters of law on which counsel for the appellants had addressed the Court.
In these circumstances, it might have been sufficient for us simply to conclude that there was no Scottish authority of sufficient weight to permit us to take any approach inconsistent with the decision of the House of Lords. However, a difficulty does arise from the fact that in Gallagher an attempt was made to obtain leave to appeal on the express basis that the decision was irreconcilable with Hughes. Although the Court did not attempt to consider the merits of that submission, it was clearly indicated that if there was such an inconsistency a court of five judges might be required. It is implicit that the Court considered that a Scottish Court or Tribunal would require to follow the decision of the Inner House in De Fontenay in preference to that of the House of Lords in Hughes. We accordingly consider it necessary to look at the relevant Scottish cases in greater detail.
The case of De Fontenay arose out of the special circumstances obtaining on Tiree. The applicant was employed as a French teacher at a secondary school on the island. His letter of appointment said that a flat would be "made available for him" and that "the tenancy of this house will be tied to [his] continuing to hold a teaching post" in the school. The total housing stock on Tiree was very limited. The respondents held a stock of 10 houses for occupation by teachers. The Tribunal found that because of the shortage of houses in Tiree it was essential for the respondents to have such a stock to offer teachers applying for posts. It was clear that in the absence of such a stock of houses, there could be serious repercussion for the future of the school.
It was accepted that there was no express requirement fitting the terms of paragraph 1 and the question was whether such requirement should be implied. The Tribunal considered that the word "requires" was used in the sense of "necessary or obviously called for in the circumstances". At the appeal stage this was not disputed (page 608F). The point taken was a quite distinct one, that "better" had a comparative connotation which therefore meant that it was not enough to say that residence was necessary to perform the duties, it had to be shown that there was something about the particular locality and character of the house in relation to the tenant's teaching duties which enabled him the better to perform these duties. The substantive decision of the Court was: "We agree with counsel for the respondents that 'the better performance of his duties' means that the duties would not be so well performed if the appellant lived elsewhere … But, if these duties cannot be performed at all without the appellant's occupancy of this particular house, then, in our opinion, any performance must be better than no performance at all. Since we are satisfied by the findings made by the Tribunal that there was no other house available in Tiree at the material time, we are satisfied that the Tribunal made no error in law and that it is also impossible to say that no reasonable Tribunal properly directing itself could have arrived at its decision": page 608L.
It is clear that because of the concession of counsel, the Court did not have any need to consider the proper approach to construction of the provision: "The contract of employment requires him to occupy the house". There is nothing in the decision giving any indication of positive acceptance of the approach taken by counsel. The conclusion that the Tribunal made no error in law can, of course, be read as positive approval of the whole decision by the Tribunal. In context, however, it might equally be read as limited to the areas of law in issue. Of greater significance, however, is that there is nothing to suggest that the construction adopted in De Fontenay meant more than that where occupation was necessary or obviously called for in the circumstances it was required by the contract of employment even in absence of any express term. Such a construction appears entirely consistent with the decision in Hughes.
In Gallagher, the applicant was employed by Lower Clyde Water Board as foreman with subsidiary duties as a "relief bell man". In his latter role, he had to be on duty outside normal working hours to be able to deal with any loss of water pressure from the main Loch Katrine supply. Such loss of pressure would cause an alarm to ring in his house. Loss of pressure could have serious consequences. There was no express requirement in his contract of employment that he should occupy the subjects for the better performance of his duties. The question was whether this had been established as an implied term of the contract of employment. It is clear from the Tribunal decision that authorities bearing upon the question of establishing an implied term were considered. The Tribunal adopted the "officious bystander" test. They then discussed the whole circumstances of the case in an attempt to apply that test.
Before the Inner House, counsel for the employers carried out a detailed analysis of the decision of the Tribunal. There was no attempt to criticise their basic approach to the matter. What had to be determined was whether the contract of employment contained the requirement of occupancy. The criticism turned on matters of detail and on the terminology used by the Tribunal in their assessment of particular aspects of the facts. However, it is clear that throughout the submission counsel referred in full to the requirement to "occupy the house for the better performance of his duties" and stressed the importance of the latter part of the phrase. An important part of the submission was the criticism of the Tribunal for looking for "a binding term of the contract creating a solemn obligation to occupy the house". This criticism of a search for a "solemn obligation" carries an implicit contrast with some other form of contractual obligation although the difference was not spelled out.
The Court appears to have accepted the thrust of the submission although there was no attempt to explore the implications of emphasising the latter part of the statutory provision in a contractual context. The opinion bore to proceed, inter alia, on the basis of the statutory construction which was applied by the Tribunal in Docherty v City of Edinburgh District Council 1985 SLT (Lands Tr) 61, to the effect that "require" in the context of paragraph 1, was "the milder meaning of to ask or to request". However it is important to note that the Court went on to refer with apparent approval to the passage from the opinion in De Fontenay above quoting the Tribunal's view as to the meaning of the word "requires". The Court refer to that opinion as "approving the Tribunal's view". Finally, the Court expressed itself in the following terms: "In our view there is no need to search for a term of the contract that positively orders or compels the occupation of the house by the employee, a term breach of which would give rise to a right in the employer to dismiss the employee for breach of contract. This is particularly so when the occupation of the premises relates only to an ancillary part of the main duties. The words of the statute envisage that if the particular duties would not be so well performed if the employee lived elsewhere then it is open to imply a requirement to occupy the premises for the better performance of the duties". This was the passage relied on by the Tribunal in Campbell. There is nothing to suggest that the Court recognised that there might be an inconsistency between that conclusion and the view "approved" in De Fontenay.
The actual conclusion reached by the Court in Gallagher was that: "The reasonable and sensible conclusion to be derived from a consideration of the whole evidence is that it was an implied term of Mr Gallagher's contract as at the relevant date that he should occupy the alarmed, free house which he had received from his employers when he entered their employment and that (our emphasis) for the better performance of his duties". The conclusion at least appears to us to reflect a perfectly conventional approach to implication of a term. There is nothing explicit in the dicta to suggest that a lesser test for implication of a term was required than in the case of any other contract. The conclusion itself is consistent with the two stage approach indicated in Hughes and adopted by Mr Bartos. An obligation to occupy has been found to be an implied term and the reason is for better performance of his duties.
Before considering in more detail the passage from Docherty quoted by the Court in Gallagher, it is appropriate to make brief mention of the decision in Douglas v Falkirk District Council 1983 SLT (Lands Tr) 21 (which was founded on in the case of Young v Strathclyde Regional Council to which Mr Bartos referred). In that case the Tribunal required for the first time to analyse the precursor of paragraph 1 of the 1987 Act. This was an identical provision in the Tenants' Rights, etc. (Scotland) Act 1980. The Tribunal was concerned with the meaning of the provision as a whole and, in particular, with the reference to "better performance". They said: "In our opinion this does not connote a necessity that the employee live in the particular house to perform his duties; only that, for the better performance, he is taken contractually bound, whether expressly or impliedly, to live there". After considering the particular circumstances the Tribunal concluded: "In our opinion, it has therefore been established that Mr Douglas was impliedly required to occupy New Elm Cottage for the better performance of his duties in terms of the statute both as park-keeper and foreman in charge of the plant nursery. A requirement to occupy "for the better performance of his duties" in our opinion requires us to be satisfied that his duties are better performed if he occupies the house or that such duties could not be so well performed if he lived elsewhere. It does not require us to be satisfied of the necessity of living in the particular house if the job is to be performed at all".
In Docherty, the Tribunal considered that further interpretation was called for in relation to the word "required". They observed that the requirement need not be in writing and continued:
"This then brings us back to the meaning of the word 'required' within the phrase 'his contract of employment requires', etc.
According to the Shorter Oxford English Dictionary (3rd edition, page 1711) the primary meaning of the word "require" is to ask or request as opposed to its secondary meaning of to ask for authoritatively or imperatively. Either meaning, according to context, may also apply in a statute: see Stroud's Judicial Dictionary (3rd edition, volume 3, page 2561). In para., however, we consider that the milder meaning of to ask or request was intended. For the more imperative one could only apply to an express stipulation whether written or oral, but hardly to one that is to be implied from surrounding circumstances. Yet an implied contract of employment is clearly contemplated under [para.1] and this must a fortiori include implied conditions of employment".
We confess to some uncertainty as to precisely what the Tribunal had in mind as the result of drawing this distinction. The intention may have been to do no more than pave the way for acceptance that a requirement could be implied as opposed to being authoritatively or imperatively demanded. However, as it seems to us, a contractual requirement must, inevitably, have more of the character of a demand than a request. Judicial dicta as to when a term can be implied are not easy to summarise but all contain an element of necessity. There is an obvious difficulty in the proposition that the expression "the contract of employment requires him to occupy" can simply be interpreted as "the contract of employment requests him to occupy". It is one thing to say that different meanings of "require" may be used in a statute, it is another to say that a contract can "require" something without imposing any obligation.
It is unlikely that the Tribunal intended to go further than accept that the requirement could arise by implication. In the immediately succeeding paragraphs they went on to refer to duties being "so obvious as to be implied from the very occupancy of the house in question". The next paragraph was in the following terms: "Implied conditions additional to those contained in a formal contract must be such that parties would have taken them for granted in the circumstances or which could be regarded as going without paying". There is nothing in the substance of the judgement to indicate that the Tribunal had in mind some unusual contractual "requirement" which was less than a contractual obligation.
Whatever the intention of the Tribunal in Docherty, it is of importance that the Court in Gallagher gave approval to the decision of the Tribunal in De Fontenay. We have already commented on the effect of that decision. It appears to us that a clear distinction can be drawn between a construction of the word "requires" in terms of "asking" and a construction in which "requires" is recognised as based on something which is "necessary" or "called for in the circumstances." The latter expressions are consistent with the established approach to implied terms of a contract.
As appears from the decision refusing leave to appeal, it is clear that the Court in Gallagher, did not regard its task as including the resolution of any disputed issue of law. We do not find the whole dicta in that case in relation to the proper construction of the word "requires" to be free from ambiguity. However, dicta must be read in context. There can be no doubt that the Court considered that the Tribunal had applied too high a test to the facts but there was no criticism of the fundamental legal approach of the Tribunal in using the "officious bystander" test as a basis for determination of whether a term could be implied. We consider the criticism of the Tribunal to be capable of being expressed in terms of a failure to distinguish between material terms and lesser terms. The Court appears to have accepted the contention that the Tribunal could be seen to have been seeking to find a term, breach of which would have justified dismissal. It may, in other words, have regarded the statutory provision as making it necessary to be able to imply a material term. Attempts to analyse and explain the distinction between material and lesser terms of a contract can give rise to confusion: Gloag and Henderson The Law of Scotland 13.4. It is unsurprising that neither the Tribunal nor the Court characterised the issues they were examining in that way. A term may be necessary in a practical sense to give effect to an aspect of a contract without being a fundamental term. It will, however, be a contractual obligation, enforceable in any appropriate way.
The Court in Gallagher was not asked to consider a factual situation where all the relevant duties reasonably envisaged by the parties could in a practical sense be performed to a proper standard without occupation of the relevant subjects. Mr Gallagher was expected to respond to an alarm in his house outwith working hours when he was on "duty weekends" and during the week when he was on standby duty. In a practical sense this required him to occupy the house in which the alarm was situated. Only if each and every duty could reasonably be performed without occupation would the question arise of whether it would be open to imply a condition which would allow them to be performed to a better standard. That question was, in effect, dealt with in Hughes.
The decision in Campbell v Highland Regional Council 1996 HLR 36 was expressly based on a need to follow dicta in Gallagher. We are satisfied that it need not be followed by us in light of the weight which can properly be given to the guidance of the decision in Hughes. Other Scottish dicta which might be read as suggesting that regard must be had to the need for "better performance" as part of the overall task of identifying the implied duty must viewed with care. Many can be explained in their own context on the basis of a recognition that once the positive duties of performance, express or implied, have been identified, an obligation of occupation may be implied if it is obviously called for to allow any of the particular duties to be performed - even if the individual duty is not, in itself, an important part of the contract. The janitor and park-keeper cases such as Douglas and Docherty deal, for example, with the importance of residence to allow a duty of surveillance to be carried out. Such a duty may not have been an important part of the contract of employment taken as a whole but once a duty was identified which, in a practical sense, required occupation for its proper performance, this has been accepted as sufficient to justify a implied obligation to occupy. In Young, it was observed that it was not for the Tribunal to decide whether the particular duties were necessary or worthwhile. It was enough that they were duties which the employers wished to have performed. In Docherty the Tribunal concluded, at page 65/66, that, "the exclusion provisions of [paragraph 1] are intended to apply where a district council has made a house available to a particular employee with a view to performing certain duties which may not be his main duties but which, nevertheless, go with the house and which would not be performed at all or at least so well performed, if he lived elsewhere". This emphasis on particular duties has the practical effect of giving weight to an idea of better performance. It can be seen as implicitly contrasted with a stricter construction which might have refused to imply a term if the particular duty served by occupation was only a minor part of the overall duties of the employment.
Although there can be no doubt that certain dicta in Gallagher and in earlier decisions of the Tribunal, tend to indicate that "better performance" should be included in some way as an element of assessment of the contractual requirement, we are satisfied, for the reasons set out above, that there is no authoritative Scottish decision which points unambiguously to an approach inconsistent with Hughes. As we have seen, that case points to the need to take the matter in two stages. All Scottish decisions have been based on acceptance of the need to treat the matter in terms of analysis of contractual obligations. Clearly, paragraph 1 does not purport to create any form of contract and its provisions can have no bearing on the existence of any obligation. The issue is whether a particular contract of employment falls within the statutory description. Whether relevant obligations, express or implied, exist must be determined before dealing with the question of whether the contract of employment fits the description in paragraph 1. In absence of express provision, the question of whether a particular contract can be described as requiring occupation of the house must depend on identification of the duties to be performed and the application of familiar common law concepts to determine whether or not an obligation of occupancy is implied. That there may be difficulty in formulating the precise common law test to be applied in particular circumstances is not germane to the statutory construction.
It seems clear the words "better performance" cannot have been intended to modify or qualify the nature of the obligation as such. The decision in Hughes was based on the proposition that a term could not be implied if it was only required for better performance. If there could be adequate performance without such term there would be no justification, at common law, for implication of a further term because such a term would never be necessary in any relevant sense of that word. The point can be expressed positively. "Better performance" implies comparison. If this description was to be applied to the obligation on the employee, the comparison would have to be with due performance. However, by definition, the contract cannot compel more than is adequate for due performance. It must follow that "better performance" requires to be assessed, not by reference to the obligation on the employee but by reference to the effect of performance in practical terms.
Adequate performance might, of course, require performance to as high a standard as circumstances reasonably permit. Improving the circumstances would lead to better performance of duties in terms of result. In this context, a house can be viewed in the same way as any other piece of equipment supplied. Use of particular equipment may be required in order to provide a better result. The availability of such equipment does not lead to a higher level of obligation. We are satisfied that the issue of better performance is not to be considered as part of the obligation resting on the employee. Dicta which might tend to that effect must be approached with care.
Mr Bartos accepted the two stage process. He expressed it as an onus first to establish a requirement to occupy and then to establish that this was required for the better performance of the employee's duties. The latter proposition is not free from ambiguity. If our analysis is correct, there is no need to consider the matter in terms of a "requirement" of better performance. It would be enough if the Tribunal was satisfied that the obligation or requirement of occupancy could be described as being for better performance of the contractual duties. We understood the substance of the submission to be to that effect. As it was put in the passage from Douglas, which we have already quoted, " [paragraph 1] does not connote a necessity that the employee live in the particular house to perform his duties; only that, for their better performance, he is taken contractually bound, whether expressly or impliedly, to live there". This directs attention to the purpose behind the contractual obligation.
The question of what an obligation is for, normally requires investigation of the intention of parties and where the obligation is a duty imposed on one party, the answer will, in practice, turn on the intention of the other party, namely the employers. It might, therefore, be thought, that in assessing whether the statutory description fitted a particular obligation, the prime question would be the intention of the employers. There is nothing in the use of the word "better" to necessitate any substantial degree of betterment. It might be that the statutory description would be met if occupancy demonstrably enhanced, or was reasonably intended to enhance, performance of the employee's duties. In Douglas the Tribunal, at pages 22-24, reviewed common law authority relating to service tenancies which might have pointed to a stricter test and concluded in effect that the statutory provision must be interpreted on its own terms. We tend to the view that the essence of the matter is simply that the requirement of occupancy must be related to performance of the work rather than imposed for some other reason.
Such a conclusion might seem to be a departure from the decision in Young where the Tribunal rejected a submission that all that mattered was the employers' intention established by their genuine belief that occupation would allow duties to be performed better. The Tribunal held that it had to be established that occupation was necessary for better performance. It is unnecessary for present purposes to decide affirmatively that the approach in Young was setting too high a standard. Mr Bartos did not invite us to do so.
It may be observed, however, that where the onus is on the employers to establish the purpose and these employers are a body of the type falling within the categories set out in sec 61(11), the difference between a genuine belief and a well founded belief may be of little practical significance. When regard is had to the need to look at the contract as it stands at the date of the application, the result required by the Tribunal in Young could be expected to follow proper examination of the evidence of intention. The Tribunal's use of the word "necessary" can be construed in a practical sense following the observations of Lord Woolf in Surrey CC v Lamond, at page 1057, referred to above. To demonstrate the purpose served by the obligation would require examination of the employee's duties and how they are to be performed in practice. Where the nature of the contractual duties has changed evidence of initial intention may have little bearing on the matter.
We think it clear that if a relevant duty could not be performed without occupation that would normally be sufficient to demonstrate that occupation was for better performance. Accordingly, where an obligation to occupy has been established as an implied term, it would be rarely, if ever, that it would not be found to be for the better performance of the duties. The separate issue of better performance does, however require care in relation to express contractual terms. As we have seen, a provision requiring a tenant to occupy a house "for the better performance of his duties" cannot sensibly be treated as imposing any obligation to perform better. It must be seen as a reference to purpose. There is usually no need for a contract to spell out the purpose to be served by an obligation. Accordingly, any such express provision will require careful scrutiny to determine why it was included. In Kinghorn v City of Glasgow District Council 1994 SLT (Lands Tr) 9 (cited in Young, supra) the Tribunal observed: "Such a residential requirement, whether express or implied must be genuinely imposed for the better performance of the relevant duties. So even an express provision may be open to scrutiny to ensure that it is a genuine one connected with certain duties and not simply a way of circumventing the Act".
A contractual reference to "better performance" might be expressive of agreement by the contracting parties that occupation would indeed lead to a better performance. It is clear that a tenant cannot lose a right to buy by agreement: sec 61(1), but an agreement may be a helpful adminicle of evidence. The question, however, remains one for the Tribunal. Is there a requirement of occupation which is, indeed, for better performance of duties?
In light of these various considerations we think that certain principles, relevant to the present case, can now be taken to be established in relation to the application of the provisions of paragraph 1. We consider these principles to be consistent with the approach taken by the House of Lords in Hughes and with Scottish practice.
Applying these principles to the facts of this case it can be said at once that, apart from the Accommodation Provisions, defined above, no possible justification has been established for any implication of a term that as Facilities Co-ordinator the applicant required to live in the house at Barnhill. His working hours are specified in his contract of employment. Throughout his working hours he is based at Grove. He requires to attend at Barnhill School from time to time but this attendance is in no way facilitated by the fact that he lives in an adjacent house. His supervisory role is exercised during working hours when he would not be expected to be at home. Residence at Barnhill is quite irrelevant. Such advantage as he might gain from proximity to the school in the event of an emergency call-out would be relatively insignificant. It would be a matter of chance. There is a well established scheme to cope with such situations and it does not rely on his proximity to any particular school.
This case turns on a proper construction of the express provisions. The Accommodation Provisions provided that all new employees to the janitorial facilities service required to occupy a tied house within the Cluster, where available. Had it been possible to relate such a requirement in any substantive sense to any of the duties of a Facilities Co-ordinator, this provision would have given strong support to a contention that such a term was to be implied in the conditions of existing employees who, in fact, occupied such a house. Such an interpretation would, of course, have been difficult to reconcile with the express exception of existing employees but we are satisfied that this provision can only make sense if read as referring to existing employees who lived outwith their new Cluster. They were not to be obliged to move. Had there been a strong case relative to the duties of Facilities Co-ordinator as such, the express provision might not have prevented implication of a requirement that employees who were obliged by their existing contract to reside within the Cluster would continue to be so obliged. However, on the view we take of the duties of a Facilities Co-ordinator, this issue does not arise. There is plainly no express provision and no duty as Facilities Co-ordinator has been identified which requires occupation either as a matter of practical necessity or, for that matter, on any test which might be based on better performance.
The more difficult issue arises from the provision that: "The existing employees who are subsequently appointed to one of the posts of Facilities Co-ordinator, if they currently occupy a tied house, will be required to react to situations outwith working hours at the school in the vicinity of their house, eg, report incidents to the police, respond to contact by the Police, call out the appropriate Co-ordinator/Assistant, be Keyholder etc". There is no doubt that the applicant was a person who was "subsequently appointed to the post of Facilities Co-ordinator" and who then "currently" occupied a tied house. There was, accordingly, an express obligation, over and above the routine duties of Co-ordinator to react to situations at the school which happened to be in the vicinity of the house. The clause, of course, contains no express provision that persons who then occupied the houses were obliged to continue to do so. However when the obligation is triggered by existing occupation, an obligation to continue in occupation may be implied because it arises as a matter of practical necessity. The employee could not react to situations at that school outwith school hours in the way envisaged unless he continued to occupy the house.
Putting the matter another way, the clause can be read as setting out two conditions which will trigger an obligation to report incidents at a particular school defined by reference to the house. Once that obligation is triggered, the only way in which, in a practical sense, it could have any content would be if there was an obligation to continue in residence in that house.
We are not, however, satisfied that the obligation thus created can properly be described as one falling within the scope of paragraph 1. Part of the difficulty in testing the contractual provisions against the provisions of that paragraph arises from the particular context and date. They appear in an agreement reached in November 1999 designed not only to regulate working terms and conditions but to "acknowledge" the anomalies which had arisen in relation to the council's policy of requiring janitorial employees to occupy tied housing. It is an important consideration that the provision imposes no duties on a Facilities Co-ordinator who does not occupy a tied house. If no house is occupied no relevant duties are imposed. If a person has no relevant duties, occupation of a house cannot be said to be for the purpose of allowing him to perform his duties. Still less can it be said that occupation is required for the better performance. Such duty as is imposed arises out of occupation. Occupation does not follow identification of particular duties.
Although it is certainly the case that once in occupation certain duties are imposed we must have regard to the fact that this is a clause which may have been inserted to reflect policy or, perhaps, to cope with the anomalies in application of past policy. There is no doubt that the respondents were well aware of the problems of dealing with tied houses. The fact that an obligation was inserted in a contract would not of itself be sufficient to satisfy the statutory requirement. Although little is necessary, we consider that the respondents cannot discharge the onus of showing that the requirement of occupation is for better performance of duties unless there is some identifiable substance in the better performance achieved or intended. This is of particular importance where the obligation arises from the occupation rather than the other way about. We are satisfied on the evidence that active performance by the applicant of the duties said to flow from occupancy are of no identifiable significance in the case of Barnhill School. The applicant is under no obligation to spend time at home. He is under no obligation to arrange his affairs so that he is able to keep a lookout when he is at home. There would be nothing to stop him, as tenant, living in the rooms facing east and keeping his curtains drawn in bedrooms facing west. He could plant shrubs or construct a garden shed which might restrict his view to the west. In any event his view of the school buildings is of little practical value in detection of intruders. Because of arrangements with the police, there is no significant advantage in relation to response to call-out or in being a keyholder. His duties to react can be contrasted with the duties of a resident caretaker who might well be expected to be available before and after school hours to open or close the school or deal with minor emergencies.
We heard some submission based on the heavily discounted rental and rebate of council tax received by the applicant. There was no suggestion that this substantial financial benefit was in any way intended to reflect any disadvantage in staying in the house. In other words it was plainly an increase in remuneration which might be thought to support the view that occupancy was positively required. However, we heard nothing to persuade us that the present situation was anything more than a throwback to the days of janitors where subsidised accommodation on site was a recognised part of the package of benefits.
In the event, we are not persuaded that in the particular circumstances of this case occupation of the house allows better performance of any duty which would be of any value to the employers. Further, we are not satisfied that there was a genuine intention of the employers that an obligation of occupation be imposed for better performance of the applicant's duties under the new scheme. The contract of employment accordingly does not fall within paragraph 1.
The submission under paragraph 8 raises quite separate issue although the perceived benefit in having what might be described as a "responsible person" in a schoolhouse is a matter referred to in submission in respect of both paragraph 8 and paragraph 1. On the evidence it would not matter whether that person was employed by the respondents or was simply a good citizen. The very presence of an occupier in a house identified as associated with the school might be expected to have a deterrent effect. The question of proper identification of the curtilege has accordingly caused us some anxiety.
Plainly the house was built for school purposes. The present arrangement for provision of caretaker services does not require a resident janitor. However, it has only been in operation for a year or so. Requirements might well change. There could well be a time when it would be an advantage for the respondents as education authority to have control of a dwelling adjacent to the school. However, that is not a ground for refusal of sale. The statutory test is not based on proximity nor on operational advantages. It is based on curtilage.
What is within the curtilage of a school may come to be a matter of impression depending on particular physical features. We are satisfied that, in the present case, the position of the gates is of critical importance and that we must have regard to the present position of the gates which has not changed since the start of the applicants employment as Facilities Co-ordinator nor the date of his application (30 June 2000). The latter was accepted as the critical date in both De Fontenay (at page 608E) and Gallagher.
Mrs Ross Pond had no doubt that the gates were part of the boundary of the curtilage and it followed that the stretch of private road from Falkland Crescent to the gates was not within the curtilage as she saw it. She, of course, described the curtilage of the school in terms of the outer fence which enclosed the applicants garden. We, on the other hand, are satisfied that if the stretch of road is properly outwith the curtilage, the actual curtilage should be seen as that marked by the "secure" boundary. As we have narrated above, from the main gates a wire mesh fence runs to the west and goes right round the edge of the school grounds. The pedestrian gates in that fence are locked overnight. The fence runs up the east boundary and turns to meet the main gates. There is no access to the applicant's house from within the area thus bounded. The house, in other words, is separated from the school and its grounds by a stout wire mesh fence. The schoolhouse and garden form a self-contained unit. Access to it is, at present, taken over the stretch of private road. It follows from our conclusions as to the nature of the applicant's responsibilities to the school that we are satisfied that the house is not, in any significant way, to be seen as used for the purposes of the school, far less for the comfortable enjoyment of the school.
Our hesitation arises from the fact that the private road is patently part of the school in a casual, visual sense. The pedestrian barrier running from the road to the gates can be seen to extend some distance into the school grounds. The roadway is narrow and is more of a private drive than a road. It is clear that the respondents have complete control over it. They have complete control of the position of the gates. They could return them to their former place or, indeed, closer to the public road. They could remove the gates altogether.
When the gates were in their original position it might have been easier to treat the school boundary as being the fence running to the north from the west end of the gates and thus enclosing the school house garden. Quite apart from that, an important pertinent of the house was the access to it. That has to be regarded as part of the house in terms of definition provided by section 338 of the Act. The only available access required use of the private road on the school side of the gate. On authorities which it is unnecessary for present purposes to detail, that might itself have brought the case within paragraph 8.
We recognise that, even with the gates in their present position, it would be possible to view the curtilage of the school as extending to the mouth of the drive. We have come to conclude, however, that on a proper view of the whole layout Mrs Ross Pond was correct to treat the gates as a bounding line. We consider that a secure physical boundary must be treated as a very strong, if not conclusive, indicator of the extent of a curtilage. Ownership and potential control are not relevant to this issue. We are satisfied that the private nature of the drive outside the gates is insufficient to bring it within the curtilage of the school.
In determining the extent of a curtilage for purposes of paragraph 8 there can be no presumption that the subjects in issue are, or are not, within the curtilage. Accordingly when considering the private road it is relevant to have regard to its appearance as a road shared between the school and the schoolhouse. In other words, it is not a roadway which is patently exclusive to the school.
We consider our approach to the question of curtilage to be consistent with the Tribunal's approach to this issue in the various authorities to which we were referred. It is clear that the mere fact that the house has its own identifiable curtilage does not exclude it from being within the curtilage of the school: Barron v Borders Regional Council, 38 F. Similarly, the absence of any direct means of access from the subjects to the main school grounds is not itself conclusive: Allison v Tayside Regional Council, 68 K. However, where subjects with their own clearly defined curtilage no longer serve the purposes of the school in such a way as might be said to be for the comfortable enjoyment of the school, the existence of the separate bounded curtilage may be sufficient to take them out of the larger curtilage: Burns v Central Regional Council .
Each case must be taken on its own facts and there is a clear danger in attempting a superficial comparison. In general terms, however, it can be said the issues arising in this case have some similarity with those in the case of Barron. There, the headmaster's house was adjacent to the school, surrounded by it on three sides and separated from it by clear boundaries in the form of a stone wall, a stretch of iron railing and the wall of the school itself. There was a pedestrian doorway between the two. There is no such link in the present case. The Tribunal was not satisfied that the house was within the curtilege of the school.
Similarly, we are not satisfied that the applicant's house falls within the curtilage of the school and, accordingly, the respondents have not discharged the onus of demonstrating the applicant is excluded from the status of secure tenant by virtue of the provisions of paragraph 8.
In the whole circumstances, therefore, we are satisfied that the applicant falls to be regarded as a secure tenant. He is entitled to purchase the house. We accordingly remit the matter to the respondents to proceed as accords. We reserve all questions of expenses.