DESCRIPTIVE RUBRIC

Landlord and tenant - Public sector housing - Tenants Rights - Right to purchase - Whether tenancy secure - Occupation for better performance of duties - Whether schoolhouse within the curtilage of the school - Housing (Scotland) Act 1987, Schedule 2, paragraphs 1 and 8

Smith v Dundee District Council
4 April 2001
LTS/TR/2000/18

The applicant was tenant of a schoolhouse at Barnhill Primary School, Dundee, situated at a corner of the school grounds, adjacent to the private roadway leading up to the school buildings. There were gates across the roadway. From the gate a secure fence ran round the school side of the applicant's garden and right round the boundary of the school grounds. The house and garden were outside this fence. There was a fence running from the gates round the public side of the garden and joining the said boundary fence. At one point the garden fence ran for a short distance along a public road. The garden gate was situated on the public side of the said roadway gates but access to it required use of the private roadway.

The applicant had been janitor of the school. As such he required to occupy the house for the better performance of his duties. However at about the end of 1999 his employers had put in place a radical alteration of the provisions for janitorial services to schools. Schools in Dundee were grouped into Clusters, looked after by a team of "Facilities Assistants" headed by one or more Facilities Co-ordinator. The applicant had been appointed Facilities Co-ordinator in relation to a Cluster of schools which included Barnhill. He was based at a secondary school situated approximately two miles from his house. He had responsibility for supervision of supply of janitorial services to the secondary school and to four primary schools including Barnhill. He had no duties as Facilities Co-ordinator which required him to reside at the schoolhouse although he was on a list of keyholders who might be called out in an emergency to attend at Barnhill School. His contract of employment incorporated, by reference, the terms of an agreement between his employer and the relevant trade unions, intended to regulate the change to the new system. It included an express provision that "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 in to 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, when available. The agreement also included the following provision: "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 …". Evidence was led of the policy of the employers in relation to sale of tied houses.

Held (1) that to fall within the provisions of Schedule 2, paragraph 1 of the Housing (Scotland) Act 1987 it was necessary for there to be a contractual obligation to occupy the house; (2) this could be implied on the basis of established common law tests for implied terms; (3) whether any such obligation was for the better performance of duties was not a matter of contractual obligation but a matter for assessment by the Tribunal; (4) in the circumstances of the present case although it might be possible to imply a contractual obligation to occupy the house, it was not established that this was for the better performance of duties; (5) evidence of policy in relation to sales of tied houses was irrelevant because the evidence did not give rise to any inferences bearing on the issue of better performance of duty; (6) that where a schoolhouse was outside the secure boundary of the school and there was no evidence of its use being required for the comfortable enjoyment of the school, it could not normally be said to fall within the curtilage for the purposes of section 2, paragraph 8 of said Act; (7) there were no circumstances which brought the applicant's house within the curtilage; (8) as the tenancy was not covered by the provisions of either paragraph 1 or paragraph 8 of the said Schedule, the applicant had a right to purchase.

Observed: Despite dicta of the Extra Division in Strathclyde Regional Council v Gallagher1995 SLT 747 and the decision of the Tribunal in Campbell v Highland Regional Council 1996 HLR 36, there was no Scottish authority which prevented the Tribunal from following the decision of the House of Lords in the case of Hughes v Greenwich London Borough Council 1994 1 AC 170 as interpreted in Surrey CC v Lamond 1999 31 HLR 1051.

Cases referred to:

Allison v Tayside Regional Council 1989 SLT (Lands Tr) 65
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Burns v Central Regional Council 1988 SLT (Lands Tr) 46
Campbell v Highland Regional Council 1996 HLR 36
De Fontenay v Strathclyde Regional Council 1990 SLT 605
Docherty v City of Edinburgh District Council 1985 SLT (Lands Tr) 61
Douglas v Falkirk District Council 1983 SLT (Lands Tr) 21
Hughes and Another v Greenwich London Borough Council 1994 1 AC 170
McTurk 1990 SLT (Lands Tr) 49
Rockcliffe Estates plc v Co-operative Wholesale Society Ltd 1994 SLT 592
Strathclyde Regional Council v Gallagher (24 November 1994) unreported and 1995 SLT 747
Surrey CC v Lamond 1999 31 HLR 1051
Walker v Strathclyde Regional Council 1990 SLT (Lands Tr) 17
Young v Strathclyde Regional Council LTS/TR/1989/1


See full decision:  LTS/TR/2000/18