Knowsley Housing Trust v White

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Neuberger of Abbotsbury. For the reasons he gives, with which I agree, I would allow the appeals in Knowsley Housing Trust v White and Porter v Shepherds Bush Housing Association, but dismiss the appeal in Honeygan-Green v Islington London Borough Council.

LORD WALKER OF GESTINGTHORPE

My Lords,

I have had the privilege of reading in draft the magisterial opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I am in full agreement with it, and for the reasons that Lord Neuberger gives I would dispose of these three appeals as he proposes.

I venture to add one brief footnote, and I do so largely as a matter of respect for Lord Browne-Wilkinson, who gave the leading speech in this House in Burrows v Brent London Borough Council [1996] 1 WLR 1448. Lord Browne-Wilkinson did not, as I read the authorities, invent the rather unfortunate phrase "tolerated trespasser." It seems to have been coined by counsel for the local authority when that case was before the Court of Appeal: see Auld LJ (1995) 27 HLR 748, 752, quoted by Millett LJ in London Borough of Greenwich v Regan (1996) 72 P & CR 507, 517 (decided on 31 January 1996, while Burrows was on its way to this House). Both Auld LJ (in Burrows) and Millett LJ (in Regan) set out the expression "tolerated trespasser" in inverted commas, rather as if they were holding it at arm's length. Millett LJ went on to explain that it was not an appropriate expression because in Regan the Court of Appeal (for good reason, on the facts of that case) had not considered the effect of section 85 of the Housing Act 1985.

When Burrows reached this House Regan was approved and section 85 was given its proper significance. Lord Browne-Wilkinson quoted the expression "tolerated trespasser"—again, in inverted commas—at pp 1452E and 1455C, and in the latter passage he could be said to have tolerated it. He did not wholly-heartedly endorse it. But it has since then become too firmly embedded to be dislodged.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with everything he says and would dispose of these appeals exactly as he suggests.

LORD MANCE

My Lords,

I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Neuberger of Abbotsbury. I agree with him that the appeals should be allowed in Knowsley Housing Trust v White and Porter v Shepherds Bush Housing Association, but dismissed in Honeygan-Green v Islington London Borough Council, in each case for the reasons he gives, subject to one qualification not critical to the outcome.

The qualification relates to the operation of sections 85(2) and (4) of the Housing Act 1985 and…

CaseChat Overview and Summary