Kilby v Basildon District Council

The High Court (Mr. Justice McCombe) dismissed a judicial review brought by a Basildon tenant challenging Basildon District Council’s June 30, 2005 decision to adopt a new secure tenancy agreement that would delete clause 11. Clause 11 required any variation of tenancy terms to be approved by a majority of Tenants’ Representatives at a special meeting, with a quorum, except for rent or legal compliance changes. The Council argued clause 11 was ultra vires and void because the Housing Act 1985 sections 102 and 103 provide exclusive mechanisms for varying secure tenancies. The tenant relied on contractual freedom and authorities such as R v Hammersmith & Fulham LBC, ex p. Beddowes and R v Brent LBC, ex p. Blatt. The court held section 102(1)’s “and not otherwise” language bars alternative variation methods; clause 11 attempts to add a new machinery and thus unlawfully fetters statutory powers. The judge also considered clause 11 an illegitimate fetter frustrating Parliamentary intent and rejected any legitimate expectation that the Council follow an unlawful procedure. An interim injunction had restrained notices, but the claim failed.