Street v. Mountford - Reconsidered
![handle is hein.journals/qland14 and id is 169 raw text is: The University of Queensland Law Journal Vol. 14, No. 2
Street v. Mountford - Reconsidered
S. Robinson*
Law Reform Commissions often take years to analyse a legal prob-
lem, and consider a formula for change. On the other hand the
House of Lords can take as little as two months. And, this was the
time taken by the House in Street v. Mountford. I However in doing
so, the decision of the House in that case reveals weaknesses that
are likely to cause difficulty and hence litigation in the future.
What the article2 by the respondent reveals is that the non exclusive
licence cases3 were overturned despite little argument.4 No doubt
the House may wish to take an opportunity to make comment on
related cases but it is putting an unnecessary burden on counsel
when the cases are not germane to the dispute in question. Indeed
in Street's case the respondent conceded that the agreement confer-
red on the appellant exclusive possession. Thus the decisions up-
holding the principle that non exclusive licence did not confer ex-
clusive possession were quite irrelevant.
The implications of change are often more difficult to assess than
the measure of difficulty in formulating the language of change.
And this is clearly so in Street's case. Whilst the House is not bound
by its own decisions, the decision in Street's case is presented as an
unanimous decision and hence even obiter dicta may carry great
weight. Hence in relation to the matters of contention and difficulty
it may be many years before those difficulties are resolved: in the
meantime a number of basic concepts are left in doubt.' If this be
so, then it suggests that the decision reveals weaknesses in judicial
techniques; and, this is a matter of concern.
Judicial technique
Quite early in the decision in Street's case is the statement the
traditional distinction between a tenancy and a licence lay in the
grant of land for a term at a rent with exclusive possession.''SA But
this is inaccurate. And what is worse, it seeks to bolster its
authoritarian presentation by asserting that the distinction main-
tained is traditional. If the distinction is not traditional then the
whole basis for the decision may fall to the ground. And judg-
ments, particularly judgments of the House of Lords, should be
posited on an accurate research basis if they are to have respect. Of
course the use of the word traditional may simply indicate from
* Ph.D. (Monash), LL.B. (Manc.), Reader in Law, University of Queensland.
1. [1985] 2 All E.R. 289 (called Street's case).
2. See Street. Coach and Horses Trip Cancelled? Rent Act avoidance after Street
v. Mountford [19851 Con. 328 (called The Article).
3. E.g. Somma v. Hazelhurst [19851 2 All E.R. 289.
4. The Article at 332.
5. E.g. leases of easements.
5A. [1985] 2 All E.R. 289 at 292.](ViewImageLocal?handle=hein.journals/qland14&div=21&collection=&method=preview&ext=.png&size=3)
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Street v. Mountford - Reconsidered
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