OPINION

Mr and Mrs Henderson v West Lothian Council

[1] The parties entered agreement in the form of a joint remit to the Lands Tribunal for Scotland under the provisions of the Lands Tribunal Act 1949, section 1(5). The joint remit does not set out explicitly the question which the Tribunal is to determine but it is plain that the essential issue is whether the dwelling at 200 Norman Rise, Dedridge, Livingston falls within the definition of a “flat” within the meaning of section 338 of the Housing (Scotland) Act 1987. The significance relates to the discount available to the tenants if they purchase their dwelling. We were invited to determine the issue on the basis of written submissions and a site visit. We visited the subjects on the evening of 7 June 2011.

[2] The property in question is situated at the end of a terrace of dwelling houses. It consists of a kitchen and living room/dining room, on the ground floor with three bedrooms, cupboards and a bathroom above the ground floor part of the subjects and a fourth bedroom situated above part of the neighbour’s property. The subjects have their own garden front and back. It may be noted that the upper floor does not extend quite as far as the ground floor parts of the building but we do not think that anything turns on a precise description of the subjects. It can be said in broad terms that a material part of the dwelling is divided horizontally from the neighbouring dwelling while a substantial part of the dwelling house sits on its own solum.

[3] In terms of section 338, “flat” means “a separate and self-contained set of premises, whether or not on the same floor and forming part of a building from some other part of which it is divided horizontally.”

[4] In essence the dispute between the parties turned on the question of whether it was sufficient that part of the tenants’ dwelling was divided from the neighbour horizontally or whether the definition required the whole of their premises to be divided from adjacent premises horizontally.

[5] The written submissions on each side made reference to the way in which similar properties had been dealt with in the past when discount on purchase was being calculated. However it is plain that we must decide the question of the proper interpretation of the statute as a matter of law. The views expressed or taken by other landlords or in respect of previous transactions are irrelevant to that question. It is right to add that in the realm of administrative law there may be circumstances in which someone who has relied on one policy of a local government body may have some sort of claim when a policy is changed. But such circumstances are rare. Plainly issues of administrative fairness are not within our remit but, in any event, we think it can be said that if a local authority has been proceeding on an erroneous view of the law, it will normally have a duty to change its approach and apply the correct law.

[6] It is also important to say that our primary concern is with the words of the statutory definition and not with the broader question of what might be understood as a “flat” by the general public. Plainly, the man in the street would not describe the subjects at 200 Norman Rise as a flat. It has the appearance and most of the characteristics of a semi-detached house with an extra room overlapping an adjacent and similar house. But, the intention of the statute was plainly to provide a specific definition for the particular purposes of the 1987 Act and it is that definition we must apply. Interpretation of a statute is an exercise in determining what Parliament meant by the language it has chosen to use in the context of the particular Act.

[7] The parties’ submissions can be summarised shortly. In their letter of 14 April 2011, the tenants made various points. They referred to confusion over their neighbour’s title deeds because their fourth bedroom was above the neighbour property. They described the difficulty of taking access to the window of that bedroom for purposes of cleaning and maintenance. We saw, on inspection, that this was not simply a matter of placing a ladder in a neighbour’s garden. It involved crossing a section of what was the tiled roof of a small part of the ground floor section of the neighbour’s house. The letter said that several other tenants of similar properties had been treated as occupying flats when buying their homes. On the direct question of the meaning of the Act, the tenants said that their property was “very well described in the definition of a flat”. In lawyers’ terms that can be treated as an assertion that on a plain reading, the Act fitted the layout of their dwelling.

[8] Their formal submission was sent under cover of a letter of 30 April. Although it did refer to the definition section, it did not make any substantive comment on the interpretation of it. It mentioned the attitude of Livingston Development Corporation and to an assurance said to have been given by a local councillor. We recognise that these matters have a broad relevance in the sense that they showed what other people took to be the plain meaning of the language but plainly they do not provide an authoritative guide. The proper interpretation is a matter of law for us to determine. The submission pointed out that because of the overlap the tenants were responsible for a share of maintenance costs and repairs and it posed the question of how that could be so if their dwelling was a “house”.

[9] The substantive submission for the landlord on the question of construction was that the reference in section 338 to “it” being divided horizontally meant that it was the self contained set of premises which required to be divided horizontally from another part of the building and not that only part of the premises required to be divided horizontally in that way. It was argued that it would have been open for the legislators to specify that only part of the premises in question needed to be divided horizontally if that had been their intention.

[10] The submission went on to make reference to the commentary by Paul Q Watchman on “The Housing (Scotland) Act 1987” published in 1991 by W Green & Son Limited. Reference was made to the annotation at page 145. The author there indicated that the intention behind the distinction between houses and flats was to encourage the purchase of flats. It was submitted that the property in question was not the type of property which legislators would have had in mind for the purpose of calculating discounts.

[11] The submission dealt with the different view taken by Livingston Development Corporation but stressed that in terms of section 74(2) of the Local Government (Scotland) Act 1973 it was not open to West Lothian Council to allow a greater discount than that properly authorised by the legislation. In other words, they had to proceed on the basis of the proper meaning of the provision and could not simply follow the approach of the previous landlords.

[12] We consider that as a matter of English language and grammar the definition is not free from ambiguity. The main division between the two dwellings is a vertical one. In a physical sense only one part of the dwelling is divided horizontally from the part of the remainder of the building. But, in a broader sense, it can reasonably be said that the horizontal division does serve to divide the applicants’ dwelling from the one below. It might be said that no two storey dwelling is wholly divided horizontally from the neighbouring property. The upper floor will be divided from adjacent subjects vertically but may have no other contact with such subjects. Nevertheless it is plain that such a dwelling would fall to be regarded as a flat within the definition.

[13] Our task is to identify the meaning intended by Parliament. Where meaning is clear and unambiguous, effect must be given to that meaning. But it is seldom possible to be confident about the meaning of language without regard to the context in which it is used. In the present case the effect of the submissions for the tenants was to draw attention to the context. The special discount for flats could be explained by the fact that flats commonly had to have shared maintenance arrangements. The landlords, on the other hand, point out that the present subjects have the characteristics of a house including garden back and front. We do not find either of these matters to be of any great assistance. Semi-detached houses often have shared maintenance arrangements with neighbouring properties. It is not uncommon to have a servitude right of access over adjacent subjects for repair and maintenance purposes. The special features of sharing involved in flats would normally be reflected in the price, in any event, and the precise features of flats which were thought to require additional discount cannot be explained simply by reference to such sharing. We cannot safely proceed on a view as to whether or not the legislators would have had the present type of subjects in mind when considering the issue of discount.

[14] In trying to identify the proper meaning of any section of an Act it is usually necessary to look at the other provisions of that Act to get a proper understanding of the context. We find nothing in the general scheme of the Act to provide guidance, one way or another, but we do consider that the provisions of section 302 are of some significance. This is another provision which also draws a distinction between houses and flats. This provision appears in the part of the Act which is dealing with the provision of “assistance for owners of defective housing”. It does so by defining a “house” so that a dwelling which is not a house will be a flat or other unit. In practical terms, we think that the main intention must be seen to be the provision of a definition which would draw a distinction between “houses” and “flats”. For completeness it may be noted that in 1987 when the United Kingdom Parliament still dealt with Scottish matters it was common to have an Act which applied only to England and then a similar Act a year or two later dealing with the same subject but adapted to deal with Scottish needs and conditions. We have no doubt that the Parliamentary draftsmen in 1987 would have been well aware of the provisions of the English Housing Act 1985 and the definition in sec 183 (1) of that Act. It is on lines similar to sec 302 but goes a little further in making it clear that the intention was to provide a definition distinguishing “houses” and “flats”.

[15] In any event, sec 302 is in the following terms:

(2) “302 – (1) In this Part “dwelling” means any house, flat or other unit designed or adapted for living in.

(3) For the purposes of this Part a building so designed or adapted is a “house” if it is a structure reasonably so called; so that where a building is divided into units so designed or adapted –

(a) if it is so divided horizontally, or a material part of a unit lies above or below another unit, the units are not houses (though the building as a whole may be), and

(b) if it is so divided vertically, the units may be houses”

[16] Although this definition is of a “house” the effect is that it also defines “flat or other unit designed or adapted for living in”. In other words, although it defines “house” and section 338 defines “flat”, the two provisions are dealing with the same type of situation. Section 302 refers to a “unit designed or adapted for living in”. Section 338, of course, refers to a “separate and self contained set of premises”. We do not think anything turns on this difference although the contrast makes it clear that the definition in section 338 is not restricted to dwellings.

[17] However, the importance of section 302 lies not in its contrast with section 338 but in the contrast contained within section 302(2)(a) itself. The reference to a building “divided horizontally” is contrasted by use of the word “or” with the situation where “a material part of a unit lies above or below another unit”. It seems clear from this provision that Parliament has proceeded on the basis that the reference to the building being divided horizontally required the whole unit to be divided from another part in this way and has thought it necessary to make special provision for circumstances where only part of the unit is divided horizontally. If section 302 was to be applied in the present case, the dwelling house would plainly fall into the second part of subsection (2)(a). There is no doubt that a material part of the unit number 200 lies above part of unit 201. However, there is no such provision in section 338. The contrast between the two provisions supports the landlord’s submission that the unqualified reference to “it” being divided did not applied to just a part. In other words by contrast with section 302 it can be seen that Parliament did not have in mind that the two units could be said to be divided horizontally when only part was so divided.

[18] It may be said that although it is not common to find two different definitions in an Act covering the same situation, there is nothing particularly strange about this. The difference may have been thought necessary to deal with the different needs of the two provisions. Section 338 appears to have been a general definition with its origin in previous Housing legislation. It was not provided solely with the different discounts in mind. Section 302 was specific to Part XIV of the Act and may have been thought necessary to cover situations where actual works of repairs were to be carried out. However, it is unnecessary to explore the reasons behind the different provisions. The main significance lies not so much in the contrast between the two different provisions as in the contrast within section 302 which shows that Parliament had in mind a distinction between all of a unit being divided and only a material part.

[19] Analysis of sec 302 makes it clear that the legislators were alert to the distinction between a unit and a part of a unit. Although it is not so clear, it can be said that sec 338 makes the same distinction. It refers to the subjects being divided from some other part of the building. If it is correct to say that the whole of the tenants’ subjects can be said to be divided horizontally from the rest of the building in the circumstances of the present case, it would be equally true to look at matters the other way round and say that the rest of the building was divided horizontally from the subjects in the same way. It might be said that Parliament thought it necessary to make it clear that it was enough if only part of the building was so divided from the subjects. However, we do not attach much weight to this point. The definition required to distinguish the self-contained set of premises from the rest of the building and the reference to another part does have a content in that context which does not require stress on the “part” as such.

[20] The conclusion we have reached is based on comparison of the provisions of the Act relating to the subject with other provisions in the Act itself. It gets some further support from the consideration that if a familiar term such as “flat” is to be defined to cover unusual circumstances, it can be expected that the legislature would see a need to spell things out clearly. Where there is ambiguity we are entitled to have regard to the normal usage of the term. The word “flat” is normally applied to a unit which is all on one level and forming part of another larger building. Such a unit is necessarily divided horizontally. As we have seen, the specific definition in section 338 takes care to say explicitly that a unit can still be a flat even if it is on more than one floor. But the definition does not expressly widen the definition any further. We recognise that there may well be circumstances where some part of the dwelling is not divided horizontally but the main dwelling is. We have in mind that what would normally be regarded as a “flat” may well have an independent stair. However, we do not think that changes the conclusion we reach in this case. That situation would have to be addressed if and when it arose. It might be that the definition could be taken to refer implicitly only to all material parts of the subjects.

[21] For all the above reasons we answer the question by saying that the dwelling at 200 Norman Ridge is not a flat within the meaning of section 338.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 22 June 2011

Neil M Tainsh – Clerk to the Tribunal