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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1999/222 - Daisy Hill Real Estates v Rent Control Tribunal [1999] UR 222 (17 December 1999) URL: http://www.bailii.org/je/cases/UR/1999/222.html Cite as: [1999] UR 222

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ROYAL COURT

(Samedi Division)

17 December 1999

Before: F C Hamon, Deputy Bailiff,

and Jurats Potter and Allo

Application for judicial review of Respondent Tribunal’s decision on rents

Advocate W J Bailhache for the Representors

Advocate P Matthews for the Respondent

Advocate J D Kelleher for the Intervenors

JUDGMENT

THE DEPUTY BAILIFF: This is a representation of Daisy Hill Real Estates Limited, which owns a large number of rented units of accommodation in Jersey. Two of these are Spencer Close in the Parish of St. Saviour and Perquage Court in the Parish of St. Lawrence.

Spencer Close comprises 30 two-bedroom flats, 3 three-bedroom flats and land and appurtenances; whilst Perquage Court comprises 36 two-bedroom flats and 36 one-bedroom flats and land and appurtenances.

This is an application for judicial review. Because of that no evidence was called. We had, of course, a full set of documents, skeleton arguments and oral submissions. The relationship between Daisy Hill Real Estates Limited and the Tribunal has been chequered. This is the third application in five years inviting the Court to set aside the findings of the Tribunal.

We are reviewing rents as at October, 1998. The Tribunal made a determination of rental which this Court struck down in May. In June the application was reconsidered after the two tenants before us today had successfully applied to intervene.

We need to look at a judgment of this Court delivered on 26 September 1996, between the same parties (the company and the Tribunal). A Consent Order was issued which gave some particular guidance to the Tribunal. As the Court said "both Counsel have clearly given much thought to the Order and have agreed that the Order represents the proper course which the Tribunal should follow in the future." We should say two things in passing. First, that the rents under review in that judgment were for flats at Marett Court and secondly, the Consent Order contains declarations by the Court which must necessarily bind the course of future conduct by the Tribunal. We must also say that, having had regard to the question of scarcity (a matter to which we shall, of course, refer in greater detail later) there is no doubt that the "locality" which concerns us today is the market condition that prevails throughout the island. So that this judgment affects Perquage Court and Spencer Close just as it affected Marett Court, that point was agreed by Counsel.

The Act of the Court reads:

"Upon hearing the parties’ advocates, the Court (have noted the undertakings recited in paragraphs 6 and 7 below):

1. by consent declared the decision of the Rent Control Tribunal made on 23^rd September, 1994, in the matter of the rents payable on the flats at the premises known as Marett Court ("the Flats") void;

2.by consent ordered the Tribunal to re-assess the rents payable on the Flats with effect from 1^st October, 1994;

3.declared that whilst it is open to the Tribunal to consider other methods of assessment of a reasonable rental (pursuant to Article 4.2 or 4.3 of the Law), the normal method of assessment would be to establish the market rental and to deduct a figure in respect of scarcity, if any;

4.declare that for the purposes of assessing market rental, the following terms (which are frequently used for the review of rent in the open market) represent a fair guide for the Tribunal in the exercise of its discretion in this respect:

The market rental shall represent the open market value of the dwelling on the date that the reference is made to the Tribunal, that is to say the annual rent at which the dwelling might reasonably be expected to be let with vacant possession, and without premium in the open market between a willing lessor and a willing lessee having regard to the terms of the tenancy, other than the then current rent payable.

In assuming the open market rental, the Tribunal shall assume that the tenant has observed and performed all his obligations under the terms of the tenancy, and will not take account of:

(a)any of the tenant’s fixtures and fittings in the dwelling;

(b)any effect on rent of the fact that the tenant has been in occupation of the dwelling;

(c)any effect on rent of any improvements, variations or alterations in the dwelling which have been carried out by the tenant other than in pursuance of an obligation of such tenant to the landlord under the terms of the tenancy.

5.by consent ordered the Respondent to pay the costs of the Representor of an incidental to these proceedings on a reasonable basis in any event.

And the Court:

6.noted the Representor’s undertaking to the Court not to collect retrospectively any increase in the rent on the Flats arising from the re-consideration by the Tribunal of the 1994 rent;

7.noted the Respondent’s undertaking to the Court that it will:

(i)henceforth either at the request of a landlord or a tenant, provide detailed written reasons for its decision on the question of rent either under Article 4 (2) or 4 (3) of the Law;

(ii)co-operate with the Representor in bringing on before the Court as a cause de brièveté any application by the Representor for judicial review of the Tribunal’s re-assessment of the rentals with effect from 1^st October, 1994, should the Representor be advised the same is appropriate."

This judgment then contained an undertaking by the Tribunal, if requested, for it to give written reasons. This is an innovation for this jurisdiction in matters of this kind. It has proved to be a rod with which the Tribunal can be beaten but it was the course of procedure agreed by the parties and was no doubt a reason that the Court was able to say "although it is a Consent Order it is one of considerable importance in this field."

There is not doubt that the judgment of the Court in 1996 was a landmark decision certainly insofar as the company was concerned.

There is, of course, no appeal in law from a decision of the Rent Control Tribunal. This is a judicial review. Some guidance on judicial review is given by the Appeal Court in States Greffier -v- Les Pas Holdings Limited (1998) JLR 196 C.of A. p. 210, where, inter alia, the Court said:

"The grounds on which the States’ decision of February 3^rd, 1998, may be open to attack are to be found stated in the English cases conveniently referred to as "Wednesbury" (Associated Provincial Picture House Limited -v- Wednesbury Corporation (1948) 1 KB 223 and "GCHQ" (Council of Civil Service Unions) -v- Minister for Civil Service (1984) 3 ALL ER 935."

The headnote of GCHQ at 937 reads:

"Administrative action is subject to control by judicial review under three heads:

(1)illegality where the decision-making authority has been guilty of an error of law e.g. by purporting to exercise a power it does not possess.

(2)irrationality, where the decision making authority has acted so unreasonably that no reasonable authority would have made the decision.

(3) procedural impropriety where the decision making authority has failed in its duty to act fairly."

The statement of reasons of the Tribunal for its decisions is very detailed. It first defines the premises in detail; it explains the nature of the tenancies; it sets out its understanding of the landord’s case, and of the tenants’ case; it deals with the law and incorporates in that passage the relevant extract from the Order of this Court of 26^th September, 1996 (to which we referred earlier). Then comes its decision which is set out in two stages:- First, the determination of market value and then the determination of whether scarcity exists and if so the quantification of it. It then fixes the rents which will take effect from the 26^th October, 1998. It even goes so far as to give, in an appendix, its arithmetical calculations of how these figures have been arrived at. It is, by any standard, a detailed and reasoned document. There can be no doubt that the Tribunal has abided by the undertaking that it gave to this Court in September and it has done so to the letter. That, however is not the end of the matter.

Any body appointed by the States must act according to reason. If there is an incorrect reasoning there is an error of law. That bold statement is, of course, to be tempered with prudence. We need to cite from three of the cases given to us by Crown Advocate Matthews in his most helpful argument.

1."It is trite law that rent assessment committees, like other tribunals, are not required to articulate their reasons to the exacting standards and with the accuracy and precision required of a court" Curtis -v- London Rent Assessment Committee (1997) 4 All ER 842 at 866.

2."rent assessment committees are not skilled Chancery draftsmen and will from time to time include in their decisions here or there a sentence which is not wholly comprehensible. Danckwerts L.J. in the Lannon case said "…there is force in the contention that the committee is not a formal body, and is not wholly composed of lawyers, so that the necessary skill which a trained judge would have exercised may not be found in members of the committee. I think that it is not right to require too high a standard of the committee in this respect." (Metropolitan Property Holdings Ltd -v- Laufer and others (1974) PCR 172 at 178.]

3."reasons are not deficient merely because every process of reasoning is not set out… reasons are not insufficient merely because they fail to deal with every point raised before the committee at the hearing" (Mountview Court Properties Ltd. -v- Devlin and ors. [1970] PCR 689 at page 692.]

The Tribunal heard viva voce evidence from Mr Michael Gillborn of Gillborn Associates, Mr. Peter Bridle of Vibert and Bridle and Mr. Robin Stone for a time a director with his wife of Martomston Partners Limited, but then apparently working alone under the name of Robin Thomas Stone of which firm he appears to be a sole director. The Tribunal also received a written report from Gaudin & Co. Its author was Mr John D Wright. It also received a letter from Mr Eric Le Ruez, the Chief Executive Officer of the Housing Committee. In assessing the value of this evidence given by long established practitioners in Jersey over many years, the Tribunal made a remark, referring to Mr Gilborn, (but also appropriate to Mr. Wright) where it said: "without formal qualifications we were not satisfied that he could be classified as ‘an expert’.

That is a disturbing comment. As is said in Phipson on Evidence at 32-37:

"The competency of the expert is a preliminary question for the judge and is one upon which, in practice, considerable laxity prevails. Though the expert must be "skilled" by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility."

Advocate Kelleher, who appeared for two tenants, made a spirited defence of the Tribunal on this point but we feel that the Tribunal was wrong in its view and this factor only highlights a real problem. We take the view that the legislation committee should take urgent steps to ensure that this dedicated panel of lay persons should have in its constituted body someone capable of giving it professional advice on law when it is required. It is quite wrong, in our view, for the Tribunal, having undertaken to given reasons, to be expected to make decisions in law which might be fatal to its decisions of fact.

The Tribunal preferred the evidence of Mr. Robin Stone in these words:

"Robin Stone has been an adviser to the Tribunal for many years. He is well qualified formally and his original valuation distinguished separately the refurbished flats and also recognised the noise problems and poor layout. His valuations were exclusive of service charges and following substantial questioning by Advocate Bailhache, it was accepted that his term "fair market rent" in his reports to the Tribunal was indeed market rent without any deduction for scarcity.

In our opinion, the best qualified and the person whose evidence we prefer is Mr. Stone, whose market valuations we accept. His valuations, set out in the first column of figures in Annexe E, are exclusive of service charges."

What does Mr. Stone have to say of "fair market rental"? We immediately have a concern.

On 20 October 1997, Mr. Stone wrote to the Tribunal about the assessment of Market Rental Value. His letter concludes with these unambiguous words:

"I have also taken into consideration market conditions prevailing at the present time in the private rental sector to which I believe an approximate equilibrium in supply and demand exists."

He then goes on to give his assessment of "fair market rental values" for 1 bedroomed and 2 bedroomed flats.

On 26 January 1998, however, he wrote to the then Chairman of the Tribunal in these terms (and this is only three months on):

"Marett Court, Marett Road, St. Helier.

I am writing further to my report valuation in relation to the above and subsequent Tribunal hearing of the same and the subsequent question of the present scarcity factor in regard to rental accommodation in Jersey.

You are aware that I attended a meeting with the Housing Officers resulting in their subsequent report to yourself.

On Friday the 23^rd I was informed that correspondence had been received from Bailhache Labesse reflecting concern that I would not be available for cross-examination on the question of scarcity value. Until then I was unaware of the recent events but I cannot change my plans at this late stage and the reason for writing is to convey my thoughts on the matter.

You will recall that my directive from the Law Officers’ Department was to assess the subjects reasonable rental for the purposes of the Dwelling Houses (Rent Control) (Jersey) Law, 1946, and in order to arrive at the same any scarcity element should be deducted from full market rental. The reasonable or fair market value should be the result recommended to the Tribunal."

This letter is of course a better, or perhaps a more correct, view in that Mr. Stone’s definition of fair market value has changed to mean full market value less scarcity.

On 30^th September, 1998, Mr. Stone took the view that although "demand and supply of one bedroomed units appears in balance there is more pronounced imbalance of two and three bedroomed accommodation." He goes on to say.

"In my opinion the following represents fair market rental values exclusive of service charges."

There is therefore a difference of meaning in January and in September.

With that background Advocate Bailhache asks us to consider that the Tribunal were unreasonable (in the Wednesbury sense) and committed errors of law to prefer the evidence of Mr. Stone to the evidence of the other retained valuers.

We have examined, with all Counsel, analyses of their figures. The disparity becomes marked when we look at two bedroomed and three bedroomed flats. For example Mr. Gilborn gives the market rent of two bedroomed flats (unrefurbished) at Perquage Court at £115, Mr. Wright at £115, Mr. Stone at £107 and Mr. Bridle at £120 (excluding the service charge), and for 2 bedroomed refurbished flats, the market rents are assessed by Mr. Gilborn at £130, Mr. Wright at £130, Mr. Stone at £120 and Mr. Bridle at £125 (rounding up the service charge of £4.71p).

The same discrepancy exists at Spencer Close. Mr. Bridle includes the service charge of £3.68 for two bedroomed flats and £5.25 for three bedroomed flats. What is clear is that Mr. Stone is assessing below the others on market rents.

So, too, is there a considerable difference when one compares the Tribunal’s figures with those of Mr. Gilborn and Mr. Bridle.

It is, of course, acceptable for a Tribunal to accept one valuer against the others but is it rational for the Tribunal to select one valuer against the others when he is, on the face of it, at variance with these others?

It is here that reasoning becomes all important and needs to be examined carefully. The Tribunal in the opening paragraph of its decision says this:

"The Tribunal considers that it is unable to review the work of its predecessor in 1997 and must base any decision on the current application which is to reassess rents as at the 26 October 1998."

We now have before us the minutes of all the relevant meetings of the Tribunal.

It is clear from these that Advocate Bailhache was unable to question Mr. Le Ruez. Mr Le Ruez was unwell at the first meeting. At the second meeting, when the company expected the decision to be delivered, two tenants sought leave to be convened. That was granted. On the third occasion the tenants presented their arguments. Advocate Bailhache did not seek to elaborate on his initial presentation.

A letter dated 26 January 1998 was sent to the previous Chairman and was in the hands of the Chairman of this Tribunal. In our view, had that letter been seen by Advocate Bailhache at the time of the hearing it would have enabled him to have asked questions of Mr. Stone as to the nature of his views on scarcity and the nature of his discussions with Mr. Le Ruez. Because we attached importance to it, we set the letter out in extenso.

"26^th January, 1998.

Dear Colonel Hall,

Marett Court, Marett Road, St. Helier.

I am writing further to my report valuation in relation to the above and subsequent Tribunal hearing of the same and the subsequent question of the present scarcity factor in regard to rental accommodation in Jersey.

You are aware that I attended a meeting with the Housing Officers resulting in their subsequent report to yourself.

On Friday the 23^rd I was informed that correspondence had been received from Bailhache Labesse reflecting concern that I would not be available for cross-examination on the question scarcity value. Until then I was unaware of the recent events but I cannot change my plans at this late stage and the reason for writing is to convey my thoughts on the matter.

You will recall that my directive from the Law Officers’ Department was to assess the subjects reasonable rental for the purpose of the Dwelling Houses (Rent Control) (Jersey) Law, 1946, and in order to arrive at the same any scarcity element should deducted from the full market rental. The reasonable or fair market value should be the result recommended to the Tribunal.

The measurement and subsequent reduction in percentage terms of the scarcity value is extremely difficult to assess. One source has been taken by the waiting list at the Housing Committee in relation to the demand in the size of the accommodation and I refer you to the other factors conveyed in the Chief Executive Officer’s report. However, any professional opinion must be supported by comparable evidence which basically means what is actually happening in the market in relation to rent. Fortunately, I am privy to inspecting and assessing newly leased units of accommodation which are normally, if not always, let at full market rent. In the process of valuation for the Rent Control Tribunal, I am therefore aware of what the rent full market rent would be if let on the open market and subsequent responsibility of concluding a fair market rent. In the case of Marett Court I am still strongly of the opinion that my assessment of the rent structure is correct and that no additional discount factors be applied.

Apologies for not being able to attend this meeting but I have been committed to my travels since September.

Yours sincerely,

R.T. Stone."

That letter might have alerted the Company to the necessity of insisting on the presence of Mr. Le Ruez even at an adjourned hearing. Had Advocate Bailhache had the letter (which the Chairman but not the other members of the Tribunal had) then he would have possessed a valuable point upon which to examine the preferred expert of the Tribunal. Mr. Stone had a view on scarcity. He spoke with the Housing Officers and apparently changed that view. That point, of course, could have been refuted by him but the seriousness of the omission was that it was impossible for the matter to be put to him. There was expressed in the Committee’s argument before us that neither Advocate Bailhache nor the Tribunal questioned Mr. Stone on scarcity as at October, 1997. That precluded a comparison between his 1997 figures and the Tribunal’s final figures. But as we have said the letter was not made available to Advocate Bailhache until late into the hearing before us. The other members of the Tribunal were not told of its existence by the Chairman in the light of the somewhat disparaging comments on the reports of the other valuers which led to the Tribunal’s preferring Mr. Stone. This was in our view a serious omission.

On 17^th June, 1999, the members of the Tribunal visited certain properties but disregard the rentals from "an abundance of caution" as they did not represent market value. The way that these properties were dealt with is expressed in the minute of 30^th June, 1999:

"The Chairman addressed the meeting and stated that in addition to the three independent experts, the members of the Rent Control Tribunal had taken the opportunity to view other flats of a comparative standard, age and square footage, and had compiled a report on the rents of these properties as at October, 1998, this report having already been circulated to the parties. He asked Mr. Gilborn for his comments on the report, but he declined stating that he could not really comment without having seen the properties in question and ascertaining whether there were good or detrimental factors to be taken into consideration. The Chairman confirmed that none of the properties had wooden floorboards or suffered from noise pollution. Mr. Gilborn stated that if these properties were in his portfolio, he could undoubtedly let them for more than was being charged by the present landlord. The Chairman confirmed that these were actual rents, including a dedicated parking space and service charges covered in the overall total rent.

The Chairman asked whether these figures had any impact on the figures provided by the three experts in their professional opinion. Mr. Bridle stated that he was very comfortable with the figures that had been provided in comparison to his report and was more than happy with his own assessment of the rental values at Perquage Court and Spencer Close.

Mr. Stone also stated that his valuation remained as per his report dated 30^th September, 1998, and that he was familiar with some of the properties included in the report such as Mount Edgcombe, Queen’s Road, St. Helier.

All three experts concurred that it was difficult further without sight of the respective properties."

In its Statement of Reasons the Tribunal said:

"We visited a number of flats of similar construction which are not subject to any form of rent control (some of which had larger rooms, concrete floors, balconies and free parking) and details of all properties were provided to the parties in a full report at the hearings. We have not used the rents for those unrestricted flats in arriving at our decision because we were not satisfied, without further evidence, that the rents charged represented open market rentals as defined in the Act of Court dated 26^th September, 1996. Whilst we have not used those rents for the purposes of determining open market rental we note that the above assessments of reasonable rents for Perquage Court and Spencer Close are, in fact, higher on a pro-rata comparison than the rents charged for the unrestricted properties visited by the Tribunal."

It is difficult for us to see what the purpose of the exercise was.

If the tribunal based its assessment on the view that there was not scarcity in 1997, it seems to us surprising that the Tribunal was able to conclude in 1998 (when there was scarcity) that rents were less than those in 1997 (when there was no scarcity). That seems to us to be an unsustainable premisè.

In deference to the work done by Crown Advocate Matthews, who prepared a chart for us to consider during the hearing, we must deal with his argument. The charge shows, he submits, that the position of the Tribunal in 1998 is correct, if one were to take Mr. Stone’s market rents in 1997 and apply to them Mr. Gilborn’s percentages for scarcity in 1997. That does, again strike us as a difficult concept to follow in the light of the dismissal of Mr. Gilborn’s prowess as a valuer.

Advocate Kelleher made a submission that, in any event, the Tribunal was not comparing like with like and we could look at what the Tribunal did in 1997 in order to compare those figures with what it decided in 1998.

Advocate Bailhache asked us to look at that matter with caution. The Tribunal apparently fixed the 1997 figure on the rentals fixed by the Company and notified to its tenants. That is clearly born out by a letter dated 10^th December, 1997, from the Law and Loans Manager of the Housing Department to Advocate Labesse. It was written after discussion with the Chairman of the Tribunal and it reads:

"In the penultimate paragraph of your letter of 21st October, 1997, the Tribunal was requested "to enter in the register at the forthcoming hearing the rental figures which our client has notified its tenants are to be the rentals (ignoring any increase to take about the RPI) applicable from 1^st October, 1998."

Clearly, the Tribunal cannot set a rent for a date a year in advance. The rental levels proposed by your client to be applicable from October, 1997 were below the levels assessed by the Tribunal’s adviser, Mr. Stone, and were granted accordingly. The Tribunal did not see it as their rôle to set a rent for 1997 any higher than that requested by a landlord."

On that evidence it is, in our view, not feasible to compare 1997 Tribunal decisions with the 1998 decision because the reasonable rent for 1997 realistically would have been higher.

It does seem to us surprising that Mr. Stone was not able to assist the Tribunal, as their chosen expert, on a percentage figure for scarcity. He "declined to give any percentage for scarcity maintaining that no professional valuer was skilled in quantifying scarcity."

We must here recall that in its Order made on 26 September 1996 the Court said:

"(3)that whilst it is open to the Tribunal consider other methods of assessment of a reasonable rental the normal method of assessment would be to establish the market rental and to deduct a figure in respect of scarcity if any."

In the light of Mr. Stone’s comments we have to say that we favour the argument on scarcity set out by Mr. Gilborn. What he said was this:

"SCARCITY

I have been asked to comment on the effect of scarcity on rentals in Jersey and I refer to my comments on pages 7 and 8 in my Report of 1997 together with the comments made by the then president of the Housing Committee, Senator Corrie Stein, and published in the "Jersey Evening Post" - and my comments on page 3 of my Report of 1998.

In essence, scarcity is caused when the demand for a particular commodity exceeds the supply of that commodity over a given period. When the demand and the supply are roughly equal, this is considered to be a state of equilibrium. In normal market conditions, the supply and demand fluctuates and it is possible to note the points of equilibrium or datum and calculate the percentage changes whether they be of scarcity or surplus of supply.

I refer to the States rental Waiting Lists and Development Programmes published by the States’ Housing Committee for the periods from February 1^st 1994 to March 30^th 1999 inclusive and including references to previous years.

Whilst there is an on-going programme to construct new dwelling units for States rental accommodation and has been for many years prior to 1994, it has to be noted that there were 620 families/individuals on the waiting list in 1992 and although this figure fell briefly to 268 in January 1997, it has steadily increased year by year since that date to its present level of 373. This is despite the fact that over this period several States rental developments have been completed thereby housing applicants on the Waiting List whilst other applicants have found accommodation in the private sector or have left the Island. Bearing in mind that the Island just does not have the size nor space to provide large residential developments, it is unlikely therefore that equilibrium will be attained in the foreseeable future.

Furthermore, in my experience as an estate agent dealing with the letting and management of flats and houses in the private sector over the last 34 years, there has never during that period been a state of equilibrium nor anywhere close to it. Whilst there have been fluctuations in demand between 1, 2 and 3 bedroom units and at the present time 2 and 3 bedroomed units are in greater demand, there has never been equilibrium in any particular section.

Without a datum point or equilibrium, as I contend that in my experience there has never been equilibrium in Jersey, it is impossible to accurately calculate the scarcity of demand over supply and such an assessment can only be made on an experienced judgment."

If Mr Gilborn has referred to matters called in aid by Mr Le Ruez that cannot be a criticism if Mr Le Ruez is a reliable witness. What the Tribunal said was that "we accept Mr. Le Ruez’s assessment even though it conflicts with that of Mr. Stone as regards the scarcity of one bedroomed flats."

There is, in our view, no clearer indication on the point of scarcity (and we shall say no more on the question of expertise) than to speak on this matter from the market place. Both Crown Advocate Matthews and Advocate Kelleher failed, despite their carefully worked arguments, to convince us that the Tribunal were right to assume that professional qualifications make an expert particularly on this point.

The Tribunal made a conclusion on the question of scarcity which it is difficult to uphold. It said this:

"…there is no doubt that there remains a considerable excess of demand over supply for all units at Perquage Court and Spencer Close. The primary factor is without doubt the historically low rentals at which all flats within these developments have previously been let. However, by comparison with other similar units within the private sector, the flats at Perquage Court and Spencer Close are likely to remain in greater demand by comparison with other comparable private sector units by virtue of the above average standard of maintenance and repair of the buildings undertaken by the owner, the availability of amenities such as outside garden areas, dedicated dustbin stores, drying areas etc. Perquage Court is likely to be attractive to many prospective tenants by virtue of its out of town, predominantly rural location and the potential availability of a garage or car parking space (albeit at an additional rental) whereas Spencer Close is likely to be attractive to alternative prospective tenants by virtue of comprising a smaller development within pleasant surroundings and enjoying a convenient location within reasonable walking distance of the town centre, etc."

The fact that tenants are looking for flats which have low rentals is not an appropriate basis for looking at scarcity. We saw all this illustrated in Metropolitan Property Holdings Limited -v- Finegold & ors. (1975 ) 1 All ER 382.

The point becomes acute when Crown Advocate Matthews submitted that in relation to scarcity the tribunal has kept within the bounds specified by Mr. Gilborn and Mr. Bridle but it accepted evidence from Mr. Stone that there was a greater demand for refurbished properties. If the Tribunal took that consideration into account then it erred in law. One does not look at whether a property is refurbished or unrefurbished to decide scarcity, that goes to the quality of the accommodation. One can, in our view, only look to see whether there is, overall, more demand than supply for this accommodation in the island generally.

Advocate Kelleher said that Mr. Bridle was "reluctant" to give figures but he gave percentages to the Tribunal, albeit with some difficulty. We must view with some concern the view of the Tribunal, supported by Counsel before us today, that experts (or non experts) unreliable on market rent, are reliable on scarcity. This has to be suspect when Mr. Le Ruez is "acceptable on scarcity" because Mr. Stone said there is no scarcity in relation to one bedroomed flats.

We believe that, because of all the work done on this case, the proper thing to do is to refer it to the Tribunal. There Mr. Le Ruez would be available for questioning and perhaps Mr. Wright. The letter to the former Chairman would be available to all parties and to members of the Tribunal. There is, we suggest, no need for a complete rehearing but on that point the Tribunal should perhaps take advice from the Crown. Now, for that reason we have to strike down the decision of the Committee as it stands today.

Authorities

Daisy Hill real Estates, Ltd. -v- Rent Control Tribunal (26^th September, 1996) Jersey Unreported

Megarry: The Rent Acts (11^th Ed’n 1988): Ascertainment of Rents - Restricted Contracts; pp 761-778.

Megarry - The Rent Acts (11^th Ed’n 1988): Methods of arriving at a fair Rent; pp 571-582.

Megarry - The Rent Acts (11^th Ed’n 1988): The Control of Rent Assessment Committees; pp 593-604.

Supperstone and Goudie: Judicial Review (1992): The Ambit of Judicial Review; pp 24-27.

De Smith, Woolf and Jowell: Judicial Review of Administrative Action (5^th Ed’n 1995); pp 549-553; 457-73.

Metropolitan Property Holdings Ltd -v- Finegold & Ors (1975) 1 All ER 382.

Western Heritable Investment Co Ltd -v- Husband (1983) 3 All ER 65.

BTE Ltd -v- The Merseyside and Cheshire Rent Assessment Committee & Jones (1991) 24 HLR.

Spath Holme Ltd -v- Chairman of the Greater Manchester and Lancashire Rent Assessment Committee & Ors (1995) 2 EGLR.

Castle Court Investment -v- Southern Rent Assessment Panel (23^rd June, 1994) Unreported Judgment of the High Court of England.

Curtis -v- London Rent Assessment Committee & Ors (1997) 4 All ER 842.

Queensway Housing Association Ltd -v- Chairman of the Chilterns, Thames & Eastern Assessment Committee & Ors (5^th November, 1998) Unreported Judgment of the High Court of England.

Metropolitan Property Holdings Ltd -v- Laufer & Ors [1974] PCR 172-178.

Mountview Court Properties Ltd -v- Devlin [1970] PCR 689 & 692.

States Greffier -v- Les Pas Holdings (1998) JLR 196 C.of A.

GCHQ-v- Minister for Civil Service (1984) 3 All ER 935.

Phipson on Evidence: pp. 32-7