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United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Burrows v Brent LBC [1996] UKHL 20 (31 October 1996)
URL: http://www.bailii.org/uk/cases/UKHL/1996/20.html
Cite as: [1997] 1 FLR 178, [1997] 1 EGLR 32, [1996] 4 All ER 577, [1996] WLR 1448, [1997] 11 EG 150, (1997) 29 HLR 167, [1997] 2 FCR 43, [1996] 1 WLR 1448, [1996] NPC 149, [1997] Fam Law 246, [1996] UKHL 20

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    HOUSE OF LORDS
    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
    IN THE CAUSE
    BURROWS (A.P) (RESPONDENT)
    v.
    LONDON BOROUGH OF BRENT (APPELLANTS)
    ON 31ST OCTOBER 1996
    Lord Browne-Wikinson
    Lord Keith Kinkel
    Lord Griffiths
    Lord Jauncey of Tullichettle
    Lord Steyn
    LORD BROWNE-WILKINSON
    My Lords,
    This appeal raises a question as to the rights of a tenant of a dwelling house let by a local authority. Under Part IV of the Housing Act 1985 such tenancy is a "secure tenancy." A landlord cannot terminate a secure tenancy otherwise than by obtaining from the court an order for possession. Local authority landlords often obtain an order for possession against a secure tenant but then agree with the tenant that, whilst certain conditions are observed, the order will not be executed. The question is whether such an agreement operates so as to create a new secure tenancy which can only be terminated if the landlord obtains a further order from the court.
    On 6 August 1984 the London Borough of Brent ("Brent") granted a tenancy of the basement and ground floor flat at 28, Oxford Road, London, NW6 jointly to the respondent, Miss Burrows, and her husband Richard Allen. In January 1986, Mr. Allen left the premises leaving Miss Burrows with her children. She fell behind with her rent.
    On 29 January 1992 Brent obtained a final order for possession against Miss Burrows and Mr. Allen in the Willesden County Court. The order directed that the plaintiff should recover the sum of 2,427.63 being arrears of rent and costs. It further ordered "that the defendant do give the plaintiff possession of the said land on 12 February 1992." Thus, the order was not suspended: it was an immediate order for possession on 12 February.
    On 5 February 1992 Brent came to an arrangement with Miss Burrows which was recorded in writing. It was made on a form which was designed for use by tenants prior to a possession hearing. The memorandum of the arrangements stated:
    "I acknowledge that there are arrears of 2,313.41 on my rent account as at 27.1.92 ... I understand that in those circumstances the London Borough of Brent will seek a possession order and judgment for the full amount of the arrears from the County Court ... I agree to pay the rent charge of 2.67 due every week and, in addition, to reduce the arrears by regular instalments of 3.00 per week.
    [There was then a section of the document which was only applicable when the document was to be signed before an order was made which was crossed out]
    If payments cease or are irregular the Council will seek to evict."
    Miss Burrows failed to make the payments in accordance with the agreement of 5 February 1992. Brent issued a warrant for possession informing her that she would be evicted on 8 June 1994. Miss Burrows moved out on 7 June. The order was executed. She returned on 8 June 1994 to find herself locked out and the premises boarded up. She thereupon applied to the Willesden County Court seeking to have the bailiffs warrant and the possession order set aside but those proceedings were dismissed.
    On 4 July 1995 Miss Burrows commenced this action seeking a declaration that she remained a tenant and damages for unlawful eviction. She also sought a mandatory injunction to be allowed back into the premises. At the heart of her case was the contention that the effect of the arrangements made on 5 February 1992 was to create a new tenancy or licence by operation of law. By his judgment of 19 August 1994 His Honour Judge Finestein Q.C. agreed with Miss Burrows' submissions and ordered her re-instatement. He made the declaration and injunction asked and referred the matter to the district judge for an assessment of damages.
    In the course of his judgment, the judge found that:
    (1) Miss Burrows understood, and this was part of the express agreement, that eviction would be a penalty if she was in default;
    (2) It was not contemplated by her that when she entered into the arrangement on 5 February she was entering into a tenancy;
    (3) When she left the premises on 7 June 1994 it was not her state of mind that a new tenancy had come into being as a result of the arrangement of 5 February 1992.
    Brent appealed to the Court of Appeal (Butler Sloss, Otton and Auld L.J.J.) (1995) 27 H.L.R. 748 who dismissed the appeal. Brent appeal to your Lordships' House.
    Sections 79, 80 and 81 of the Act of 1985 define the conditions which have to be satisfied in order to constitute a "secure tenancy." Those conditions were satisfied in the present case. It is important to note that under section 79(3) the provisions of Part IV of the Act apply to a "licence to occupy a dwelling house ... as they apply in relation to a tenancy." Therefore nothing in this case turns on the distinction between a licence and a tenancy; if, by making the agreement not to enforce the possession order, the local authority is to be taken to have granted a licence for the tenant to continue in occupation the position will be just the same as if they had granted a tenancy.
    Section 82 provides as follows:
    "(1) A secure tenancy which is either - (a) a weekly or other periodic tenancy, or (b) a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under subsection (3). (2) Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order. (3) . . . ."
    It is important to note that the secure tenancy ends, not on the date on which possession is in fact given up, but on the date on which the order requires the defendant to give up possession.
    Section 84 provides that the court shall not make an order for possession save on one of the grounds mentioned in Schedule 2 which include non-payment of rent. In addition, in the case of non-payment of rent the court must also be satisfied that it is reasonable to make the order. An order for possession cannot be made unless the ground on which an order is to be sought has been specified in a prior notice to be served on the tenant: sections 83 and 84(3).
    Section 85 is central to the argument in this case. It provides:
    "(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy [for the non-payment of rent] the court may adjourn the proceedings for such period or periods as it thinks fit. (2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may - (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit. (3) on such an adjournment, stay, suspension or postponement the court - (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and (b) may impose such other conditions as it thinks fit. (4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession. (5) ...."
    The argument for Miss Burrows, which the Court of Appeal accepted, is as follows. The order of 29 January 1992 directed that possession should be given on 12 February 1992. Therefore, by virtue of section 82(2), Miss Burrows' original secure tenancy terminated on that day. Yet, under the agreement of 5 February 1992, Miss Burrows remained in occupation of the house paying a "rent charge" of 2.67 per week for such occupation. That agreement could not be effective to alter or vary the order itself, but could only take effect as an agreement to permit Miss Burrows to stay on after her existing tenancy had terminated on 12 February 1992. This right of continued occupation can only be explained on the ground that the agreement conferred on Miss Burrows a new right of occupation, either by way of a new tenancy or as a licensee, it mattered not which. If it was a new tenancy, it was a new secured tenancy; if it was only a licence, by virtue of section 79(3) Miss Burrows enjoyed the same protection as if it were a tenancy. In either event, the new secure tenancy or new licence could only be terminated by Brent applying to the court for a further court order terminating the new right: section 82(1).
    The argument for Brent before the Court of Appeal was that the agreement of 5 February was simply an agreement by Brent not to execute the possession order, provided that Miss Burrows complied with the agreed conditions. As the judge's findings demonstrated, Miss Burrows never intended that the agreement should create a tenancy and it was absurd to imagine that Brent, by granting Miss Burrows an indulgence in relation to a possession order which they had only just obtained, should have intended to create a new right of occupation necessitating a further application to the court in order to obtain possession. In the period during which Brent agreed to forbear from enforcing the order, Miss Burrows was a mere "tolerated trespasser."
    The Court of Appeal, whilst accepting that the crucial factor in determining Miss Burrows' rights was the intention of the parties, rejected Brent's contention on the ground that it gave rise to manifest absurdities. At the rate for payment of arrears stipulated by the agreement of 5 February 1992, it would have taken Miss Burrows 14 years to pay them off during which time, if the argument of Brent was correct, she would be a mere trespasser. As a trespasser she would enjoy none of the rights of a tenant. Thus she could not require Brent to repair the house. She would have no rights under the Defective Premises Act, 1972. She would qualify as a homeless person under section 58 of the Act of 1985. Brent would have no right to evict her for any breach of the covenants in her tenancy, but only for breach of the conditions contained in the agreement of 5 February 1992.
    On the case as presented to the Court of Appeal their conclusion was inevitable. But the significance of section 85 was not drawn to their attention. As a result of the recent decision of the Court of Appeal in Greenwich London Borough Council v. Regan (1996) 28 H.L.R. 469 Brent advanced before your Lordships a far more compelling argument, viz:
    (1) Although under section 82(2) the original tenancy came to an end on 12 February 1992 (being the date fixed by the order for giving possession) that was not necessarily the final position;
    (2) Under section 85(2) the court has power to postpone the date of possession;
    (3) This power to postpone the date for possession is exercisable by the court "at any time before the execution of the order." This shows that the power can be exercised even after the date for possession specified in the order has passed and the tenancy has thereby been terminated by virtue of section 82(2);
    (4) This conclusion is re-enforced by section 85(3)(a) which postulates that the court can make a suspended order conditional on making "payments in respect of occupation after termination of the tenancy (mesne profits)." This demonstrates that there can come a time when, although the old tenancy has terminated and the former tenant has remained in possession for which he is liable to pay mesne profits as a trespasser, the court can until the original order is executed make an order varying the date for the giving of possession thereby reviving the previously defunct tenancy.
    (5) Therefore, so far as the tenant is concerned, the crucial event is the execution of the order for possession. Down to that date the tenant can apply to the court for a variation of the original order substituting a new date on which possession is to be given thereby reviving the old secured tenancy. This revived tenancy will not be terminated under section 82 until the new date for giving possession occurs.
    (6) That such revival of the old tenancy is possible is demonstrated by section 85(4) which plainly assumes that on discharge or recision of the original order for possession, the old secure tenancy will revive.
    I accept this analysis of the effect of section 85 which is largely derived from the judgment of Millett L.J. in Greenwich London Borough Council v. Regan. In that case, an order for possession was made against a secure tenant, the order (as construed by the Court of Appeal) providing for the giving of possession to be postponed so long as arrears of rent were paid by instalments and the current rent was paid. The tenant having failed to comply with the conditions in the order, the landlord and the tenant agreed variations in the amount of the payments which were to be made. The tenant having breached the terms of the order and the agreed terms, the landlord applied for a warrant of execution. The tenant sought a stay of execution. He submitted that the old tenancy had come to an end when he failed to comply with the conditions imposed by the order: see Thompson v. Elmbridge Borough Council [1987] 1 W.L.R. 1425. He then submitted, in reliance on the decision of the Court of Appeal in the instant case, that by agreeing to allow the former tenant to remain in possession the landlord had created a new tenancy or licence and therefore could not obtain possession under the old order.
    The Court of Appeal in Regan, after analysing section 85 in much the same terms as I have summarised above, posed the question whether the parties could, by agreement, revive the expired tenancy without an order of the court. The Court of Appeal held (in my view rightly) that the parties could not by agreement vary the terms of the court order. But they held that by agreeing the new conditions, the landlord waived the right to complain that failure to comply with the conditions specified in the order constituted a breach of those latter conditions. Consequently, there being no breach of the conditions imposed by the order upon which the landlord could rely, the order remained in force, the date for giving possession had not passed and therefore the old tenancy had not been terminated. They distinguished the decision in the present case on the ground that they were dealing with a suspended conditional order of the court whereas in the instant case there is an immediate, unconditional order for possession.
    One factor which weighed heavily with the Court of Appeal in Regan (to which I also attach importance) is the practical effect of the decision under appeal i.e. any consensual variation of an order for possession produces a new secure tenancy or licence. Local authorities and other public housing authorities try to conduct their housing functions as humane and reasonable landlords. In so doing they frequently need to grant indulgences to their tenants to reflect changes in the tenants' circumstances. When applying for possession orders for non-payment of rent local authorities agree to the order being suspended upon the payment of arrears, the rate of payment being adjusted to meet the means of the tenant at the date of the order. If the tenant subsequently loses his job, the landlord will often be willing to reduce the rate of payment of arrears. Why should this not be done by agreement? Yet the effect of the local authority agreeing to such a reduction will be that the tenant, whilst keeping up his payments at the agreed reduced rate, will be in breach of the conditions specified by the order at the higher rate. If so his old tenancy will be terminated. On the view of the law adopted by the Court of Appeal in the present case, a new secure tenancy requiring a new order will come into existence. Similarly where, as with Miss Burrows, the court makes an immediate order for possession but the landlord grants an indulgence by agreeing not to execute the order immediately: if the Court of Appeal decision is correct, the effect of granting the indulgence is to create a new tenancy or licence and the local authority will have to obtain a new possession order. The practical result therefore will be either that the local authority will be reluctant to make reasonable and humane concessions by agreement or in every case will have to make an application to the court to vary the existing order so as to ensure that the old tenancy is not brought to an end. I find it impossible to believe that Parliament intended to produce such an unreasonable regime, penalising sensible agreements out of court and requiring repeated applications to an already overstretched court system.
    What, then, is the correct legal analysis? I start from the proposition that where a former tenant is by agreement allowed to remain in possession of the demised property after the termination of the tenancy, the question in each case is quo animo the parties have so acted: depending upon the circumstances, their conduct may give rise to a new tenancy, a licence or some other arrangement. In the present case, on 5 February 1992 the parties plainly did not intend to create a new tenancy or licence but only to defer the execution of the order so long as Miss Burrows complied with the agreed conditions. It cannot be right to impute to the parties an intention to create a legal relationship such as a secure tenancy or licence unless the legal structures within which they made their agreement force that conclusion.
    A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may yet be revived by a further order of the court varying the date for possession. If the parties reach an agreement as to the continued occupation of the premises by the tenant during that limbo period, what intention is to be imputed to them?
    In my judgment little guidance is to be obtained from the cases where a tenant holds over after the termination of an ordinary tenancy where there is no possibility that the expired tenancy can revive. The position in relation to secure tenancies is sui generis. In my judgment, the agreement can and should take effect in the way the parties intend, i.e., it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, ie., from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute to the parties an intention to create a new tenancy or licence: the retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived. In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict - a "tolerated trespasser" - pending either the revival of the old tenancy or the breach of the agreed conditions.
    Once the effect of section 85 is appreciated, the absurdities which led the Court of Appeal not to accept that Miss Burrows could be a tolerated trespasser disappear. Technically the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply. But the tenant can at any time apply to the court for an order varying the date on which possession is to be given and thereby retrospectively revive the old secure tenancy, together with its covenants. If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order. Moreover, the tenant will not be a homeless person within section 58(2) of the Act of 1985 because the tenant will be occupying the residence by virtue of "any rule of law giving him the right to remain in occupation": see section 58(2)(c). If the tenant were in breach of any of the covenants in the old secure tenancy, Brent could apply to vary the order so as retrospectively to revive the old tenancy together with its covenants.
    Finally, there is a method (albeit a clumsy one) whereby the order for possession even if an immediate unconditional order, can be discharged or rescinded if so desired under section 85(4). The power in that sub-section to discharge or rescind only arises "if the conditions are complied with," a requirement which cannot be satisfied in the case of an unconditional order. But there is no reason why the order cannot be discharged by consent or, if such consent is not forthcoming, by the court varying the original order so as to impose the agreed conditions and then discharging the varied order.
    It was submitted that the fact that the tenancy was granted to Miss Burrows jointly with Mr. Allen whereas the agreement of 5 February 1992 was made with Miss Burrows alone, indicated that the agreement must have given rise to a new tenancy with Miss Burrows alone. Therefore there must be a new tenancy. However, since in my view on its proper analysis the arrangement contained in the agreement of 5 February 1992 gave rise to no new tenancy with anyone, that factor is irrelevant.
    I therefore reach the conclusion that, in the absence of special circumstances, an agreement by a landlord not to enforce strictly an order for possession, whether conditional or unconditional, does not create a new secure tenancy or licence under Part IV of Act of 1985. Brent, by making the agreement of 5 February 1992, did not grant a new tenancy or licence to Miss Burrows as from the 12 February 1992. It follows that the possession order of 29 January 1992 was properly enforced. I would therefore reverse the decisions of the Court of Appeal and the trial judge and dismiss Miss Burrows' action.
    As Brent have succeeded on a point not taken in the courts below, I propose that there should be no order as to costs before your Lordships' House and the order for costs made in the courts below should remain undisturbed.
    LORD KEITH OF KINKEL
    My Lords,
    For the reasons given in the speech prepared by my noble and learned friend Lord Browne-Wilkinson, which I have read in draft and with which I agree, I would allow this appeal.
    LORD GRIFFITHS
    My Lords,
    For the reasons given the speeches prepared by my noble and learned friends Lord Browne-Wilkinson and Lord Jauncey of Tullichettle, which I have read in draft and with which I agree, I would allow this appeal.
    LORD JAUNCEY OF TULLICHETTLE
    My Lords,
    This appeal raises an important question of principle in relation to the effect of forbearance by a landlord to enforce an order for possession granted under section 82(2) of the Housing Act 1985 ("the Act"). I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson and I gratefully adopt his account of the factual background giving rise to this appeal.
    Section 82(1) of the Act provides that a secure tenancy such as was enjoyed by the respondent cannot be brought to an end by the landlord without an order of the court for possession. Section 82(2) provides:
    "(2) Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order."
    This provision is mandatory with the result that occupation by the tenant after the date specified in the order ceases to be attributable to the original secure tenancy. In view of the terms of that sub-section the Court of Appeal concluded that the effect of the agreement of 5 February 1992 was to grant to the respondent a new lease or licence to occupy which enjoyed the same protection as the terminated tenancy. Before this House Mr. Underwood for the appellants advanced an argument which had not been deployed before the Court of Appeal and which relied upon detailed consideration of section 85 which provides inter alia as follows:
    "85(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit. (2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may - (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit. (3) On such an adjournment, stay, suspension or postponement the court - (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and (b) may impose such other conditions as it thinks fit. (4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession."
    Sub-sections 1(1) and (2) cover three different situations which are in turn reflected in sub-section (3). If the proceedings for a possession order are adjourned in circumstances covered by sub-section (1) the secure tenancy will continue in force but the court is required by sub-section (3)(a) to impose conditions as to payment of any arrears of rent and of future rent, subject always to questions of exceptional hardship and unreasonableness. If the tenant fails to comply with these conditions the landlord will be entitled to go back to the court and seek an order for possession. If during the initial proceedings the court makes an order but postpones the date of possession the tenancy will not be terminated under section 82(2) until any condition imposed under sub-section (3) has been breached by the tenant {Thompson v. Elmbridge Borough Council [1987] 1 W.L.R. 1425). However, the court's power to make an order postponing the date of possession is not restricted to exercise on the first application for an order for possession but may be exercised on the application of either party at any time prior to execution of that order and even after the secure tenancy has ended by reason of section 82(2). This is made clear by the words in section 85(2) "or at any time before the execution of the order" (see also Greenwich London Borough Council v. Regan 28 H.L.R 469, 476, per Millett L.J.). In such an event the secure tenancy is reinstated or revived subject to any conditions imposed under sub-section (3).
    However, whereas an order postponing the date of possession necessarily affects the operation of section 82(2), an order staying or suspending the execution of an order for possession on a stated date has no effect on the operation of that sub-section but merely postpones execution so long as the conditions of suspension are complied with. The reference to mesne profits in sub-section (3)(a) as contrasted with that to payment of rent is relevant to the period of occupation after such a suspension as well as to any period of occupation between the termination of a tenancy under section 82 and the subsequent postponement of the date of possession under section 85(2)(a). The words are, in my view, particularly significant since they show that the Act contemplates the court requiring post-termination payments to be made by an occupier which are of a nature wholly inconsistent with the existence of any tenancy in his or her favour. Sub-section (4) is similarly inconsistent with the creation of a new tenancy because a discharge of an order for possession would only be effective if the tenancy to which the order related had not been superseded by a new tenancy. I therefore conclude that the court has power under section 85 not only to permit an individual to continue to occupy premises after a secure tenancy has determined without the creation of a new tenancy in his or her favour but also to revive the determined secure tenancy on compliance by the individual with any stipulated conditions. During the period between the termination of the secure tenancy and either its revival or the execution of the order for possession the occupation of the former secure tenant derives not from any new lease but from the provisions of the Act which cast him in the role of what my noble and learned friend aptly describes as "a tolerated trespasser." Can the same result be achieved by agreement between the parties without the need to invoke the power of the court under section 85?
    In Greenwich London Borough Council v. Regan 28 H.L.R. 469 the Court of Appeal considered an order for possession which Millett L.J., at p. 476, construed as one "requiring the delivery of possession to be postponed, in the first instance for 28 days and thereafter until there was a breach of the conditions of the order." The tenant failed to comply with the terms of the order and the parties thereafter entered into a fresh agreement whereby the tenant agreed to make weekly payments of a lesser amount than those stipulated in the order. Some time later the tenant again defaulted on his payments and the landlords sought to execute the order for possession. The tenant argued that the agreement between the parties varying the order had created a new tenancy and that therefore a new order for possession was required. This argument was rejected. Millett L.J. after pointing out the impracticability of a landlord applying to the court whenever he granted some indulgence to a tenant went on to say, at p. 477:
    "If, after a breach occurs and the tenancy is determined, and the local authority subsequently reaches agreement with the tenant the effect of which is to waive the breaches, then in my opinion in accordance with ordinary principle such breaches must be treated as if they had not occurred. It would follow from this that the tenancy must thereafter be treated as not having been determined. This appears to me to be the effect of an order which leaves the determination of the tenancy to the occurrence of a breach of the conditions of the order, and which leaves the occurrence of a breach to be dependent upon whether the landlord treats it as such or agrees to waive the breach.
    "If the landlord does more and agrees not only to waive a breach of the conditions on which the order has been suspended, but also to accept payment of the arrears by smaller instalments and over a longer period than those provided for by the order, he thereby consents to such payments being treated as sufficient compliance with the order. This must either prevent the tenancy from being brought to an end or, if it has already been determined, prevent it from being so regarded."
    He summarised the position, at p. 478, in four paragraphs of which I repeat only two:-
    "2. The Local Authority may waive the breach, in which case the tenancy continues as if there had been no breach. This is so whether the Local Authority agrees in advance not to treat the particular failure to comply with the terms of the order as bringing the tenancy to an end, or agrees to waive the breach after it has occurred. In either case the tenancy is treated as if it has not determined.
    "3. The Local Authority may agree a consensual variation in the terms of the order. It will be a question of fact in every case whether the agreement which the parties had entered into should be characterised as an agreement which creates a new tenancy, or merely as one which provides for a variation in the terms on which the order has been suspended, waiving any past breaches and treating the tenancy as if it has not been terminated."
    Mr. Neuburger Q.C. for the respondent did not challenge, correctly in my view, the decision in Greenwich London Borough Council v. Regan but sought to distinguish it upon the ground that whereas a landlord could waive a condition imposed on a tenant in a court order the parties could not by agreement alter the impact of section 82(2) on an unconditional order for possession. It followed that any agreement between the parties as to the respondent's continued occupation must constitute a new tenancy. Mr. Underwood argued that such a result would be not only contrary to the intention of the parties but to the whole scheme of the Act.
    My Lords, I agree with Mr. Neuburger that the impact of section 82(2) cannot be altered by agreement between the parties. However, for the reasons which I have already elaborated, that sub-section cannot be looked at in isolation from the other sections, in particular section 85, of Part IV of the Act. The whole scheme of that Part is to afford protection to the secure tenant and that is achieved in section 85 by conferring on the court flexible powers to continue an existing secure tenancy, to revive a determined secure tenancy or to create a state of statutory limbo which will afford to a defaulting tenant an opportunity to have restored to him all the benefits of the secure tenancy when he has complied with stipulated conditions. Parliament cannot have intended to penalise a landlord who acted within the spirit of the Act by granting indulgences to defaulting tenants without going through time-wasting and expensive court proceedings. Furthermore, a tenant who has reached an agreement advantageous to himself is not thereby prevented from making an application to the court under section 85(2) or (4). In this case the judge found as a fact that neither party contemplated that the agreement of 5 February 1992 created a new tenancy and I can therefore see no reason why it should not be given the same effect as an order of the court in similar terms suspending execution of the order for possession of 29 January 1992. Such a result would accord entirely with the spirit of the relevant statutory provisions, would be consistent with the intention of the parties and would preserve all the respondent's rights under sub-sections (2), (3) and (4) of section 85. For these reasons and for those given by my noble and learned friend Lord Browne-Wilkinson I would therefore allow the appeal.
    LORD STEYN
    My Lords,
    I have had the advantage of reading in draft the speech prepared by my noble and learned friends Lord Browne-Wilkinson and Lord Jauncey of Tullichettle. For the reasons they give I too would reverse the decision of the Court of Appeal and dismiss the action.
    Burrows (A.P.) (Respondent) v. London Borough of Brent (Appellant)
    JUDGMENT
    Die Jovis 31 Octobris 1996
    Upon Report from the Appellate Committee to whom was referred the Cause Burrows against London Borough of Brent, That the Committee had heard Counsel as well on Monday the 22nd as on Tuesday the 23rd day of July last upon the Petition and Appeal of the London Borough of Brent, of 34 Wembley Hill Road, Wembley, Middlesex, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 12th day of July 1995, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, Varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as upon the case of Diane Sarah Elizabeth Burrows lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
    It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 12th day of July 1995 complained of in the said Appeal be, and the same is hereby, Set aside save as to Costs and that the Order of His Honour Judge Finestein QC of the 19th day of August 1994 be, and the same is hereby, Set aside save as to legal aid taxation: And it is further Ordered, That there be no order as to Costs before Judge Finestein or, save as to legal aid taxation, before this House: And it is also further Ordered, That the Costs of the Respondent be taxed in accordance with the Legal Aid Act 1988.
    Cler: Parliamentor:


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