London Borough of Brent v Doughan [2007] EWCA Civ 135

Case No B2/2006/1544[2007] EWCA Civ 135
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HER HONOUR JUDGE BEVINGTON)
Venue Royal Courts of JusticeDate Tuesday, 6 th February 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAY
LORD JUSTICE LONGMORE
LADY JUSTICE SMITH
Between
LONDON BOROUGH OF BRENTAppellant- v -
Between
DOUGHANRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS S DAVIES (instructed by Mr J Ghedia) appeared for Appellant.MS K BRETHERTON (instructed by Brent Community Law Centre) appeared for Respondent.
J U D G M E N T

LORD JUSTICE MAY:

There

[1]is much social and political concern about anti-social behaviour. Relevant legislation includes Part I of the Crime and Disorder Act 1998 as amended and the Anti-Social Behaviour Act 2003. By section 1(4) of the 1998 Act an anti-social behaviour order is an order which prohibits the defendant from doing anything described in the order. An application for an anti-social behaviour order under this legislation may be made by a relevant authority, which may include the council for a local government area. An application for an anti-social behaviour order unrelated to other proceedings under this legislation has to be made by complaint to a magistrate’s court. Orders may also be made in county court proceedings. But orders in the county court under this statute cannot be applied for on their own. There are specified circumstances in which a relevant authority may make an application. These include if the relevant authority is a party to “principal proceedings” and the authority considers that a party to those proceedings is a person in relation to whom it would be reasonable for it to make an application for an anti-social behaviour order.[2]Anti-social behaviour can and regrettably often does arise between neighbours. If a person is the tenant of a local authority, they will usually be in breach of an express term of their tenancy agreement if they cause nuisance or annoyance to their neighbours. One of the grounds upon which a court may make an order for possession of a dwelling house under section 84 of the Housing Act 1985 is if the tenant has been guilty of conduct causing or likely to cause nuisance or annoyance to a neighbour. That is Ground 2 in Part 1 of Schedule 2 of the 1985 Act. But the court may not make such an order for possession unless it considers it reasonable to make the order (section 84(2)(a)). By section 85A the court has to consider the effect which the nuisance or annoyance has or is likely to continue to have on others if it is repeated or in any event. The judgment as to reasonableness is intrinsically one of judicial balance akin to the exercise of a judicial discretion. It is the kind of judgment with which this court is likely to be slow to interfere for well trodden reasons. The court also has power to stay or suspend the execution of an order for possession (see section 85(2)(a)). There is another power in statute for the court on the application of the relevant landlord, which includes a local authority, to grant an injunction against a person who is engaged in or threatens to engage in conduct capable of causing nuisance or annoyance to one or more neighbouring tenants. That is a summary of rather more words in section 153A of the Housing Act 1996. By section 153C the court may attach a power of arrest to the provisions of an injunction.[3]By one or more of these statutory processes a local authority landlord may find itself seeking to evict from their tenancy tenants who behave anti-socially and seeking to enforce the terms of an anti-social behaviour order or injunction that may have been made to prevent their anti-social behaviour. Eviction is likely to be a draconian step because the spectre of unintentional homelessness under part 7 of the Housing Act 1996 looms over it. On the other hand the legislative policy is to enforce good behaviour between neighbours by court orders and thereby to protect others who may well be vulnerable from socially unacceptable behaviour -- see especially in this respect section 85A of the 1985 Act.[4]The respondent to the present appeal, Christopher Doughan, is a secure tenant of the appellant local authority, the London Borough of Brent, of premises on the second floor of number 91 Chichele Road. His address is 91C Chichele Road. Below him at 91B lives Ms Eva Parkes. She and her son have been there under a long lease since February 1992. Mr Doughan has been there since 1995. On the ground floor lives Mrs Bartkowiak. She is also a tenant of the appellant. Between 2002 and 2004 or thereabouts Ms Parkes complained of noise made by Mr Doughan particularly shouting, swearing and playing loud music. It is entirely evident that on occasions Mr Doughan can be unacceptably noisy when he is intoxicated. On 31 August 2004 the local authority applied for an anti-social behaviour injunction against Mr Doughan under section 153A of the Housing Act 1996. HHJ Cottran granted an interim injunction on 8 September 2004 with a power of arrest attached to paragraphs 1 and 2 of the order to expire on 28 October 2004. On 13 January 2005 HHJ Copley heard an application by the appellant for committal of the respondent to prison in contempt of court for breach of the injunction dated 8 September 2004.[5]It was alleged that Mr Doughan had breached the injunction on two occasions. On 28 September 2004 he slammed doors and made excessive noise; and on 12 October 2004 when he shouted and swore. HHJ Copley made an order dated 13 January 2005 committing the respondent for contempt to prison for four months and suspended the order until 12 January 2006 on condition that Mr Doughan complied with the terms of the order of 13 January 2005. He also granted an injunction with a power of arrest to expire on 12 January 2006. The terms of the main order of the 13 January 2005 were, as subsequently repeated upon a later date, that he was forbidden whether by himself or by instructing or encouraging any other person to engage in conduct capable of causing a nuisance or annoyance to any person residing at, visiting or engaging in any lawful activity at 91 and 93 Chichele Road, Willesden Green, London, NW2.[6]It was alleged in the present proceedings that on 5 September 2005 Mr Doughan breached the injunction by shouting and swearing outside the premises in the very early morning hours and then slammed the communal entrance door and jumped or banged while inside, thereby causing nuisance or annoyance to Ms Parkes. It was also alleged that on 7 September 2005, two days later, again in the early morning hours Mr Doughan jumped or banged and played loud music in the premises as well as shouting or singing thereby causing nuisance to Ms Parkes. On 12 September 2005 an application was issued by the council for committal of Mr Doughan to prison for breach of 13 January 2005 injunction on those two dates in September 2005. On 28 September 2005 Mr Doughan was served with a notice of seeking possession of 91C Chichele Road under Ground 1 of Schedule 2 to the Housing Act 1985 and on 3 October 2005 the possession claim was issued against him in the Willesden County Court. After various adjournments, including one in which the court required Mr Doughan to obtain a psychiatric report, on 6 February 2006 HHJ Copley made an order granting a further injunction and power of arrest against Mr Doughan on the same terms as the order of 13 January 2005. This order was to remain in force until the trial of the action or further order.[7]It was also alleged by the council in the proceedings before the court from which this is an appeal that on 24 March 2006 Mr Doughan broke the order of 6 February 2006 by using offensive language towards Ms Parkes at Willesden Green underground station saying:
“she wants to get me out of my home.”
On 7 April 2006 a committal application was issued in respect of this allegation. In respect of this railway station allegation Mr Doughan was charged with threatening words and behaviour, an offence under section 5 of the Public Order Act and he was also charged with breach of a separate London Transport anti-social behaviour order that had been made on 16 June 2003 under section 1 of the Crime and Disorder Act in the Thames Magistrates’ Court. We have been told today that subsequent to the hearing from which these proceedings are in appeal Mr Doughan has appeared in the Crown Court and was sentenced for those matters to nine months’ imprisonment which we understand he may still be serving.[8]On 21 June 2006 HHJ Bevington heard the various matters in the Willesden County Court. She had to determine the application for possession by the council of 91C Chichele Road under Ground 1 of Schedule 2 of the Housing Act 1985. She had to determine a committal application to send Mr Doughan to prison for breaches on 5 and 7 September 2005 of the suspended order of 13 January 2005. And she had to determine a committal application to send Mr Doughan to prison for alleged breach on 24 March 2006 of the order of the 6 February 2006. The judge dismissed all these claims or applications and ordered the council to pay the defendant’s costs. The council now appeals or seeks permission to appeal against each of these decisions.[9]Ward LJ gave permission to appeal against the judge’s decision not to make an order for possession, perhaps on terms that it should be suspended. He adjourned the applications against the refusal to make or activate the committal orders to be heard at the same time as the appeal. He wrote that, if the main appeal succeeds, the council may not wish or need to pursue the committal applications and Miss Davies before us today has in fact confirmed that position. Ward LJ invited the council housing department to explain what steps they had taken to comply with the judge’s request to them to consider re-housing the defendant.[10]The substantive answer that Miss Davies has given us to that is that nothing has been done. This was in the light of a finding by the judge that the defendant’s premises were poorly insulated against noise and against a general picture that, although Mr Doughan had on occasions disturbed Ms Parkes, he was on good terms with Mrs Bartkowiak on the ground floor, who said in her written statement that she had never had any trouble with him; and there were before the court no less than 34 pages of very positive written testimonials from a wide variety of his acquaintances.[11]Ward LJ wrote that, however justified a possession order might be, the community was not likely to be assisted by having this man on the streets if it could be shown that he is taking some steps to control his drinking. It was entirely feasible that he could be accommodated with more robust neighbours. The judge considered the most recent allegation that, on 24 March 2006. First it was submitted to her that Mr Doughan faced double jeopardy here in the criminal and civil jurisdictions, and he was indeed, as I have said, subsequently dealt with in the criminal court. The judge did say that it would be otiose for her to deal with this matter because the standard of proof in the Magistrates’ Court was the criminal standard, and the same as that for the committal application in the county court. She declined to look at a raft of technical objections advanced on behalf of Mr Doughan. She construed the order of 6 February 2006 as relating solely to persons at or in close proximity with the address named in the order. In my judgment she was correct so to construe the order. I would reject Miss Davies’ submission that the order was of an unlimited territorial effect for a person living at those premises.[12]Mr Doughan may have been in breach of a London Transport anti-social behaviour order by his behaviour at the railway station but he was not in breach in my judgment of the injunction of 7 February 2006 by virtue of its terms. I would refuse the renewed application for permission relating to this application to commit. The facts of the railway station remain of some relevance to the claim for possession by virtue of section 85A and possibly for other reasons, although the claim for possession depends mainly on behaviour associated with the premises.[13]The claim for possession depended mainly on two incidents only in three days in September 2005; the 5th and 7th of that month, coupled with the history between 2002 and 2004 which had led to the order of 13 January 2005 in the first place. The judge had some written evidence and importantly he heard Ms Parkes and Mr Doughan give evidence orally. As to Ms Parkes and Mr Doughan, the judge found that each suffered from an acute degree of sensitivity and each was vulnerable due to some mental health difficulties. It was accepted that the sound insulation in the building was less than adequate and there were other relevant defects in need of attention.[14]The judge was satisfied on the balance of probabilities that Mr Doughan had been noisy on the two occasions and had caused annoyance to Ms Parkes. They were, however, only two occasions in the 18 months or so since the order and the judge was satisfied that Mr Doughan was mindful of the court order. She could not say that the noise on either occasion was aimed at disturbing Ms Parkes herself but it was a very real problem for her if he behaved in a drunken and loud manner. She was sensitive and no doubt anxious about noise emanating from his flat.[15]The judge rejected the first application to commit because although she was satisfied on the balance of probabilities that there had been two occasions of noise and nuisance, she was not so satisfied to the criminal standard requisite to an application to commit. This kind of finding is unusual perhaps, but intellectually an entirely tenable composite decision. Turning to the application for possession, the judge found that there was on the two occasions audible disturbance causing disturbance and distress to Ms Parkes:
“However, [said the judge] in the harsh world of urban living, it is to be expected that our neighbours will disturb us from time to time.”
[16]The noise was not greatly beyond that which might be expected between neighbours in a property such as this and paragraph 27 of the judgment was this:
“The difficulties could and should have been foreseen by competent housing management when they place a largish, rather excitable gentleman, with a history of difficulty with neighbours, directly above the residence of a quiet and older lady, herself a person of some vulnerability.”
[17]The judge had every sympathy with Ms Parkes but Mr Doughan had behaved relatively well apart from two occasions since the order of January 2005, and the judge was not prepared to make him homeless on account of two occasions in 18 months when he had been noisy. It was not, in her judgment, reasonable to make an order for possession. That was accordingly an explicit decision with reference to section 84(2)(a) of the 1985 Act and in my judgment, for reasons which I shall explain with reference to the grounds of appeal, it is a judgment which is unappealable in this court. Miss Davies has told us that with the passage of time the council does not now argue for an outright possession order. But she submits that the judge was wrong to decide not to make the possession order at all and in current circumstances submits that there should be a possession order suspended on terms and conditions.[18]The proposed grounds for appeal are in summary as follows. First, it is said that the judge’s decision about the first committal application was irrational. I do not think so. It was entirely rational to find nuisance proved to the civil standard but not to the criminal standard. It was not, I think, a case in which the evidence was all one way, nor was the judgment to be made so hard-edged a judgment that a decision on the civil standard would necessarily lead to the same decision on the criminal standard. I would refuse the renewed application in relation to the first committal application.[19]The second ground of appeal, as it appears in writing, is that the judge could and should at least have suspended a committal order; that is dependent on the first ground.[20]Thirdly, as to the application for a possession order it is said that the judge, having found the facts as she did, failed to consider the effect of Mr Doughan’s behaviour on Ms Parkes, failed accordingly to address the statutory matters in section 85A of the 1985 Act. I do not think so. The judge was quite plainly well aware of the effect on Ms Parkes and said so. It is further said that the judge wrongly took account of the conditions of urban living and the perceived shortcomings of the council’s housing management. I do not think that the first of these is wholly irrelevant, but in any event it was not, reading the decision as a whole, determinative. The second was more an ingredient of the judge’s sensible view that the solution might be not to put Mr Doughan on the streets but to re-house him in better insulated premises with less sensitive neighbours. As with the urban living point this was not determinative of the judge’s decision.[21]It is then said that the judge gave no consideration to making a suspended possession order. However, the logic is that, if it is not reasonable to make a possession order, the court should not fudge the issue by making an order for possession but suspending it. Miss Davies accepts quite rightly that the court first has to decide whether it is reasonable to make a possession order.[22]It is then said that the judge failed to consider whether without an injunction Mr Doughan would continue to observe his tenancy conditions. The judge was obliged by statute to consider the likelihood of repetition and it is said did not do so. I do not see the force of this. The judge held that Mr Doughan had been mindful of the order and the question was whether it was reasonable to make a possession order. The judge held that it was not. She certainly implicitly considered the risk of repetition and was entitled to conclude, as she implicitly must have, that the risk was small and did not justify a conclusion that it was reasonable to make a possession order. The risk of repetition had to be seen in the context of the fact that there were only two, possibly three, incidents within the period of 18 months.[23]It is then said that the judge should have taken account of the incident at Willesden Green station on 24 March 2006. I agree that this was of some relevance and that the judge did not refer to it on the issue of making or not making a possession order. It was, however, put forward as a breach of the injunction of February 2006 which in my view it was not. It was not conduct which directly related to the premises the subject of the possession application. I do not find a fundamental flaw in the judge’s decision or reason here.[24]The short reality in my judgment of this appeal is that the judge held that it was not reasonable to make a possession order when Mr Doughan had probably, but not surely, been noisy at the premises on two occasions within three days in September 2005 but that otherwise he had not been a nuisance at the premises in 18 months. That in my judgment was, on the evidence, an entirely tenable decision not amenable to appeal. I would dismiss the appeal and refuse permission for the first and second committal applications for these reasons.

LORD JUSTICE LONGMORE:

[25]I agree. With regard to the claim for possession the facts of this are entirely different from the horrendous facts of Manchester City Council v Higgins [2005] EWCA Civ 1423, where this court did consider the provision of section 85A of the Housing Act 1985. In that case, Mr Recorder Maine QC in Manchester thought it was reasonable to order possession but suspended it on terms for 18 months and this court was persuaded that there should be an order for possession within 28 days. The relevant finding of

the judge here, however, was this:

“I find that the noise, as I assess it to be, was not greatly beyond that which might be expected between neighbours in a property of this type.”
[26]In these circumstances it is in my judgment impossible to argue that the judge was wrong to say that it would not be reasonable to order possession. In those circumstances I agree with the disposition of the appeal and the applications as indicated by my Lord, Lord Justice May.

LADY JUSTICE SMITH: I agree with both judgments.

Order

Appeal dismissed.

Cited in 2 later judgments