Kimberley Lee v The Highland Council

[1] The applicant, Kimberley Lee, has applied to the Tribunal for a finding, in terms of sec 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”) that she has a right to purchase the council house tenanted by her at 59 Dunain Road, Inverness of which the respondents, Highland Council, are the landlords.

[2] Ms Lee made a similar application to the Tribunal in May of last year (reference number LTS/TR/2015/05) in which a decision was issued by Mr Smith, QC and Mr Oswald, FRICS on 13 November 2015. It is not surprising, therefore, that the present application has been met with a plea of res judicata, the only change in the meantime being a fresh application to buy the house. Parties have confirmed their willingness that this plea, and, if the plea is refused, the merits of the application be disposed of on the basis of their written submissions.

[3] A successful plea of res judicata requires that five conditions are satisfied (Esso Petroleum Co Ltd v Law 1956 SC 33, per Lord Carmont at page 38):-

(i) The prior determination must have been made by a competent tribunal. That is not in doubt in this case.

(ii) The prior determination must have been pronounced in foro contentioso, without fraud or collusion. The previous application having gone to a hearing on the merits, this condition is satisfied.

(iii) The subject matter of the two actions must be the same. Since the subject matter of both actions is the applicant’s right to buy her council house at 59 Dunain Road, Inverness, this condition is satisfied.

(iv) The media concludendi must be the same. This requires a little more consideration and I return to it below.

(v) The parties to the action must be the same. This condition is satisfied.

[4] The only potentially problematic condition is, therefore, whether the media concludendi, or points and controversy between the parties, are the same in this action as in last year’s.

[5] Although I have not found it easy to follow the note of argument on the point submitted by, or on behalf of, the applicant, it is clear enough that she is arguing that the media concludendi of this action are not the same as those of the previous one; see the final page of that note. It is rather more difficult to discern what she says the differences are. However, from that point of view, it is not the Note of Argument that matters but her application.

[6] Paraphrasing what the applicant says at paragraph 5, it seems to come to this: the applicant is arguing that she has acquired a right to buy her home by virtue of having completed the five year residency condition contained in sec 61(2)(c) of the 1987 Act, that the house was not within a “pressured area” within the meaning of sec 61B of the Act at the time she signed the contract creating her tenancy, that the introduction of pressured area status and the complete abolition of the right to buy in terms of the Housing (Scotland) Act 2016 (this is a mistaken reference to the 2014 Act, see below) were not “signed up to” by the applicant and that the applicant now has a right to buy which is not defeasible by the respondents’ reliance on pressured area status.

[7] Turning now to the application made in May of last year, the particulars of dispute then given were as follows:-

“As a Scottish Secure Tenant from 17 February 2003, I feel I have the legal right to buy my home at the reserved old rights to buy discount which applied when my tenancy started. I signed my agreement with the full expectations that my rights would be honoured. I started my applications in 2008 (my qualifying period) and have worked hard towards this. I feel I am discriminated under the term ‘pressured area’. I have the same rights as other tenants who have the right to buy in adjoining areas. I feel that such an important change to Rules should have been communicated directly to each tenant with a list of the roads implicated [i.e. addresses covered by the pressured area designation].” (My comment in brackets.)

[8] When the 2015 application came to be heard, the applicant was represented, for the first time in that process, by a solicitor, who argued the case on a different basis from that on which it had been raised. The principal argument advanced at that hearing was that the respondents’ purported refusal of the application to buy the house was not a “Notice of Refusal” within the meaning of sec 68 of the 1987 Act. An ancillary argument was also advanced, however. It is summarised by the Tribunal at paragraph [13] of its judgement:-

“It was further submitted that the right to buy was referred to contractually and notwithstanding the designation of the area as a pressured area, the applicant still had a contractual right to acquire her house. The contract itself had not been changed and the applicant had not been informed of any change”.

[9] That argument was dealt with at paragraph [22] of the Tribunal’s judgement, in the following terms:-

“Turning to the applicant’s argument that she has a right to buy based upon contract, it seems to us that the tenancy agreement does no more than refer to the fact that the applicant might have a statutory right to buy. It indicates that the respondents will give the applicant information about the right to buy before the beginning of the tenancy. The contract does not, naturally enough, give any assurance that future legislation will not impact upon the right to buy, which is what has happened here. Nothing in the tenancy agreement indicates other than that the right to buy is statutory. In any event we were shown no provision from which it might be taken that we have jurisdiction to uphold a right to buy which is said to exist independently from the relevant statute.”

[10] It seems to me that the point raised by applicant in the present application about a contractual right to buy the house existing independently of the statutory provisions is covered by that part of the Tribunal’s judgement, as is, also, although the term “pressured area” is not used, the effect of supervening legislation on the lease.

[11] It seems to me, therefore, that the propositions now advanced by the applicant were also advanced and ruled upon, along with others, in the previous application. In other words, it seems to me that the issues raised in this application have already been decided upon in a case where the media concludendi included the same issues. I therefore hold that the five conditions set out above are satisfied.

[12] A plea of res judicata can be met by a plea of res noviter veniens ad notitiam – that new things have come to light, justifying a re-trial of the issues. However, the only factual change here is that this application results from a different, later, application made by the applicant to buy her house. It does not seem to me – and it is not argued by the applicant – that this changes the issues in any way at all. Nor was there, in the period from the Tribunal’s decision in the previous case, to the point at which the respondents refused her latest application to buy, any change in the law which affected the issues.

[13] The result, therefore, is that the plea of res judicata falls to be sustained.

[14] In the event that I am wrong about that, however, the merits of the application are easily disposed of. The immoveable object which has confronted both the previous application and this one is the designation of the area in which the applicant lives as a pressured area. The concept of “pressured areas” was introduced into the 1987 Act by sec 45 of the Housing (Scotland) Act 2001. In terms of what is now sec 61B(3) of the 1987 Act, for as long as an area is designated a pressured area, sec 61(1) (which is the basic provision conferring a right to buy on tenants in Scottish secure tenancies) is disapplied in relation to, in effect, secure tenancies created after 30 September 2002. The applicant’s tenancy began on 17 February 2003. We are told, in the answers to this application, and it is not disputed, that the area in which she lives was first designated a pressured area by Scottish Ministers, who alone could make such designations at the time, in October 2005 for a period of five years, renewed in October 2010 for a further period of five years. Accordingly, by the time the applicant had completed her five year occupancy requirement, on 17 February 2008, the area in which she lives had already been designated a pressured area. We are also told, and again it is not disputed, that the present respondents, at a meeting of their Housing and Social Work Committee held on 10 August 2011, designated all of its area, other than a few communities in Caithness, as a pressured area (the power to designate having by then been devolved to local authorities) until October 2020. Accordingly at no time since she completed her five year qualifying occupancy period has the applicant had a right to buy her home. Accordingly an application under sec 61 has always been incompetent and the right to buy has, of course, now been completely abolished by sec 1 of the Housing (Scotland) Act 2014 with effect from 1 August 2016 (The Housing (Scotland) Act 2014 (Commencement No. 1, Transitional and Saving Provisions) Order 2014).

[15] In the event that I am mistaken in upholding the plea of res judicata, the foregoing is sufficient to dispose of the application on its merits.

[16] I have reserved questions of expenses pending any motions or submissions parties wish to make.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 9 September 2016

Neil M Tainsh – Clerk to the Tribunal