Private nuisance is, as you all know, a tort involving the unlawful interference with the enjoyment of land. A landlord is not usually liable for acts of nuisance by his tenants unless he has, for example, encouraged to approved of the nuisance behaviour: see Smith v Scott [1973] Ch 314; Hussain v Lancaster CC [2000] 1 QB 1 and Mowam v LB Wandsworth [2001] 33 HLR 56. It is, however, possible for a landlord to adopt the nuisance of a third party if, with actual or constructive knowledge of the nuisance, he fails to take reasonable steps to abate the nuisance: Sedleigh-Denfield v O’Callaghan [1940] AC 880.

Ms Brumby was the assured tenant of Octavia Hill Housing Trust, living in a flat in a block. She alleged that visitors to another tenant in another flat were responsible for nuisance in the common parts (the approach to the flats, the communal stairs and stairwell, etc). Those common parts were retained by the landlord. The landlord had notice of the nuisance and had failed to take steps to abate it within a reasonable time. Accordingly, she argued that the landlord had adopted the nuisance and issued proceedings for nuisance and breach of the covenant for quiet enjoyment.

The landlord applied to strike the claim out, arguing (a) that Mowam, Hussain et al made clear that it was only in exceptional circumstances that a claim for nuisance could be maintained against a landlord in respect of acts by third parties and (b) Southwark LBC v Tanner [2001] 1 AC 1 prevented the court from imposing obligations on the landlord that went above and beyond the terms of the contract or statutory obligations. In the county court, the claim for breach of the covenant for quiet enjoyment was struck out, but the claim in nuisance was allowed to proceed; the case was entirely factual and would have to be determined at trial and the rule in Sedleigh-Denfield was not affected by Mowam et al.

The landlord appealed, unsuccessfully, to the High Court. Mackay J agreed with HHJ Gibson. Whether or not the landlord had adopted the nuisance was a question of fact that had to be determined at trial. Whether or not the nuisance had been adopted was governed by the Sedleigh-Denfield decision, which had not been affected by Mowam, Hussain etc. The case would have to proceed to trial.

Now, I’m no fan of Hussain, Mowam etc and would gladly see them overruled, but, in the meantime, this is a very encouraging way of getting round the problem. Not in all cases, admittedly, but it’s a start. Fingers crossed that Ms Brumby can succeed at trial as well.

Finally, hat tip to Ian Loveland, counsel for Ms Brumby, who has been pushing this argument for some time in various articles. It’s good to see him finally getting a chance to run it, and successfully. Also, the NL team doffs its collective cap to Miles and Partners, solicitors for Ms Brumby. That’s two interesting High Court cases in a week (Poplar Harca v Howe, below) and, as they only have 3 housing lawyers (according to their website), that’s a pretty good showing.

Croydon LBC v Mensah-Bonsu, Croydon County Court 15/03/2010
Ms Mensah-Bonsu was Croydon’s secure tenant. In August 2009 a suspended possession order was made on terms of rent plaus £21.60 per month. Ms M-B complied until December 2009, when she missed a payment due to ill health. She contacted Croydon offering to pay double in february 2010. Croydon rejected the offer on 19 January, then sent several contradictory demands for payment. Ms M-B made the January payment. On 1 February Croydon applied for a warrant. On 5 February Ms M-B made the double payment. A final letter from Croydon said she was required to pay £177.96 immediately and if she did so, the eviction would be cancelled. Ms M-B borrowed and paid over £178. The eviction went ahead. Ms M-B applied for re-instatement.

In its evidence, Croydon completely ignored the final letter. The witness, an income officer, failed to turn up to the hearing. Th eapplication was allowed. The DJ was deeply unimpressed by the failure of the witness to turn up and even more so with Croydon’s failure in any of its letters to inform Ms M-B that she could apply to stay or suspend the warrant, an ommission the judge described as ‘very worrying’.

I think we can go a little further than that and describe Croydon’s behaviour as frankly appalling and, in view of the promise in that last letter, with which Ms M-B had complied, pursuing the eviction as tantamount to an abuse of process. Good work by Merton Law Centre there.

Manchester City Council v Trayers, Manchester County Court 02/02/2010
This was an application by Manchester to re-open possession proceedings after judgment. Manchester had brought proceedings against Ms Trayers, a secure tenant, on the grounds of rent arrears and anti-social behaviour. Ms T had received a caution for possession of drugs at a pub in the area. The allegations against Ms T were reduced before hearing in July 2009, when live evidence was heard. Judgment was then reserved until 3 September 2009. The Recorder’s judgment handed down contained a direction that the parties propose agreed terms for a suspended possession order.

Manchester applied to re-open proceedings on the basis that one of Ms T’s sons had been found guilty of two criminal offences after the hearing of the claim and that this constituted a pattern of behaviour which had not got better, but worsened. For this reason Ms T would enjoy an advantage due to the delay in the judgment.

The Recorder dismissed the application. Robinson v Fernsby [2003] EWCA Civ 1820 meant that such applications should only be made in exceptional circumstances. Although there had been some delay, the judgment was final, albeit that terms of the SPO and costs orders were to be agreed. The conviction of one son after hearing but before judgment was not an exceptional circumstance. It was open to Manchester to make a further application to enforce the order, but not to re-open proceedings.

I wonder about this. Could Manchester seek to enforce the terms of an SPO based on a breach prior to the final order and therefore the terms being made? If not, one could see Manchester’s point in seeking to re-open proceedings. However, given the delay and further evidential requirements in doing so, perhaps enforcement would be a better and quicker bet.

On the Radio 4 show, I’m sorry I haven’t a clue, there is a game called Mornington Crescent, in which there are no rules and the outcome is irrelevant as the show is more important than the game.  It is a surreal game in which the winner is the first person to say “Mornington Crescent”.  I was reminded of that game when reading the five cases wrapped up in Salford City Council v Mullen [2010] EWCA Civ 336, which J termed “the Famous Five“.  They each raise the relevance and extent of gateway (b) in two different factual scenarios: (1) termination of a non-secure tenancy/licence occupied by virtue of section 193, Housing Act 1996 (Powell v Hounslow LBC; Manchester CC v Mushin); and (2) tenancies terminated under the introductory tenancy regime contained in Part V, Housing Act 1996 (Hall v Leeds CC; Frisby v Birmingham CC; Mullen v Salford CC).  Gateway (a) was not argued before the CA in these cases because the CA is bound by Kay and Doherty, and all of the five occupiers reserved the right to argue gateway (a) in the SC.  These are cases in which there are no rules – or, at least, counsel for three of the five local authorities (Salford did not appear) argued that Wandsworth LBC v Winder [1985] AC 461, which forms the basis of gateway (b), didn’t decide, erm, what it did decide – and the outcome is entirely irrelevant – as the main show is the nine person SC in Pinnock, with which the famous five were seeking to join (perhaps to make a suspicious six).  However, the outcome was that four out of the five local authorities won; Manchester lost and one will need to look into the mind of Jon Holbrook to find out why.  Permission to appeal was granted in Powell and Hall as the best specimens, so to speak; permission was refused, subject to submissions, in the others.

The first thing to answer, then, is why did the CA bother at all and not just wave the cases through. Their line was that the SC should have a broad range of cases and county courts need urgent guidance (an understatement, I’d say) about how to deal with gateway (b) defences to possession proceedings.  Whether those courts find that guidance here or not is open to doubt.

There are five questions of law considered: (1) does section 38, County Courts Act 1984 exclude a gateway (b) defence in all cases? (2) do the particular statutory schemes exclude the taking of a public law defence in the county court? (3) does gateway (b) involve a full proportionality review? (4) How wide is gateway (b) in the context of the specific statutory schemes? and (5) what “decision” or “decisions” can be challenged through gateway (b) (that is, just the decision to serve the notice to quit [ntq] or all decisions leading to possession – this is the ongoing battle between two lines of CA judgment, respectively Doran v Liverpool CC  [2009] EWCA Civ 146and Central Bedfordshire DC v Taylor [2009] EWCA Civ 613, discussed also in our note of Barber v Croydon LBC [2010] EWCA 51).  Waller LJ gives the judgment of the CA, but Patten LJ gives a supporting judgment which specifically considers the position in Manchester CC v Mushin.  This was the only case lost by the local authorities and was, if I might say, surreally argued – more of that at the end because it’s just weird and not exactly on point as it turns out.  Waller LJ takes each point in turn as follows:

Section 38 ([47]-[49])

Section 38 is the curious provision which disentitles a county court from giving the remedies of certiorari and mandamus.  From that small seed, it was argued by Hounslow, Leeds and Manchester that a gateway (b) defence is not open to a Defendant at all in the county court and, in the alternative, Wandsworth LBC v Winder [1985] AC 461, properly analysed, only gives rights to defend private rights using public law.  These amount to possibly the most bizarre submissions I’ve ever come across from mostly ordinarily sensible people.  They could not possibly succeed without unwinding twenty five years of case law, the whole of gateway (b) (because one would have to make an application for permission to bring a JR if they were right), not to say Doherty etc.  Clearly the CA were bound and this was a hopeless argument.  The only local authority counsel who comes out of this well is Jonathan Manning who did not take this point at all and rightly so.  Yes, gateway (b) can be procedurally messy because of the remedy problem caused by section 38, but that does not mean it cannot exist.

Statutory Schemes ([50]-[55])

This submission was stronger for the local authorities with a muted “Mornington Crescent” being raised in the introductory tenancy cases.  The submission here  was that the statutory schemes precluded the raising of a gateway (b) defence to the possession claim.  The homelessness cases were never going to succeed because there was CA authority in the way (Barber and McGlynn v Welwyn Hatfield DC [2009] EWCA Civ 285).  Hounslow nevertheless foreshadowed their SC argument with the claim that gateway (b) only arises in exceptional circumstances where domestic law contains an insufficient safeguard against an Article 8 violation, a proposition roundly rejected on authority.

The introductory tenancy cases are successful on this point in the sense that the statutory provisions make clear that the county court judge has no discretion but to grant a possession order once the procedural elements around the s 128 notice have been complied with (s 127(2)).  Manchester CC v Cochrane [1999] 1 WLR 809 and R(McLellan) v Bracknell Forest BC [2001] EWCA Civ 1510 stand in the way of the alternative construction argued for the occupiers (ie that they could bring their gateway (b) defence in the county court, rather than by commencing a fresh JR application).  Although it was argued that Doherty had “swept away” Cochrane and McLellan, the CA decision in Pinnock stood in their way, particularly as the introductory tenancy and demoted tenancy regime are essentially identical (at [54]).  This point, then, was won by the local authorities and leaves us with a rather awkward scenario (what if the County Court refuses an adjournment, but there is a successful permission application for a JR?).

Proportionality ([56]-[61])

The next two questions concern the scope of a gateway (b) review.  What degree of scrutiny/intensity does it entail?  It will be remembered that Lord Hope in Doherty at [55] said that “… it would be unduly formalistic to confine the review strictly to traiditional Wednesbury grounds” but that just begs the question.  The CA hold that it does not extend to a full proportionality review, citing Doherty as their authority.  That really foreshadows the real issue which is that it’s beyond Wednesbury but less than proportionality, and we know that some judges have said that you can’t really pass a sliver of paper between Wednesbury and proportionality, which leads to …

Width of Gateway (b) ([62]-[67])

This section begins with a citation from Dyson LJ’s judgment in Smith v Evans [aka Buckland] [2007] EWCA Civ 1318, at [44], that “It will only be in a truly exceptional case that it will even be seriously arguable that [a gateway [b)] defence will succeed”.  They go on to quote extensively from Lord Bingham in Kay because there’s not much difference between him and the majority in Kay, the need for highly exceptional circumstances even on his braoder formulation, and his judgment was approved by the ECHR in McCann.  The question this gives rise to is the extent to which personal circumstances are and can be relevant in a gateway (b) defence.  The answers are different depending on the statutory scheme, according to the CA.  As regards the introductory tenancy regime:

… the question will be whether there is some highly exceptional circumstance which should lead to the County Court adjourning the matter so that Judicial Review can be applied for in the Administrative Court. Circumstances personal or otherwise which Parliament must have contemplated would be likely to be present in the context of such a scheme could not be considered as ‘exceptional’ never mind ‘highly exceptional’. Thus for example it would be contemplated that difficult questions of fact as to whether anti-social behaviour had occurred or not would be something that Parliament would contemplate as likely. A Local Authority would not have to conduct a full inquiry to establish the truth or otherwise of such allegations knowing that those are just the situations in which getting witnesses to attend and give evidence would be difficult. With allegation and counter-allegation the Local Authority has to take a decision and unless it could be shown that it was arguable that no reasonable authority with the duties it had to perform in relation to managing its social housing could have taken the decision, there should be no question of adjourning the case until a tenant had brought judicial review proceedings.

With the homelessness cases, a different approach was required because of the different statutory scheme which enables a defence to be run in the county court, andthe ntq cannot be challenged directly through the review procedure.  But: the gateway (b) defence would need to be highly exceptional if the local authority were going to continue to provide accommodation, perhaps in a smaller place; there is an internal review of certain decisions under section 193 available through which the occupier can make full representations; and it should be remembered that the purpose of the homeless legislation is limited.  In summary, then, Barber was an example of the kind of case which is highly exceptional (although see below) because the local authority were unaware of Barber’s mental illness when they served the ntq but: “Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation” (at [67]).

Decision or decisions? ([68]-75])

This is the most interesting aspect of the decision, to me at any rate.  The question is whether one can only challenge the ntq through a gateway (b) defence, as suggested in Doran, or whether each separate decision taken by the local authority (or RP) on the way to possession is defendable through gateway (b), as in Taylor and Barber.  I have never seen how it can be as limited as Doran suggests, but it is particularly interesting to see the SoS arguing that Doran is correct.  They do so for three reasons: Doran allows the facts as they appeared or should have appeared to be considered, and therefore is not as limited as we thought; the Taylor approach causes practical problems of its own in enabling occupiers to lengthen possession proceedings, making them more expensive and costly and here, they use the example of ASB stopping after the ntq or at a later stage before possession; finally, the whole point of gatewway (b) was that the ntq or a rent demand was ultra vires and void as in Winder (which rather repeats the modified section 38 argument).  The CA reject these submissions (at [73]) and felt bound by Taylor as it had been accepted in Barber (at [74]).  They reject the first submission because it does not deal with a wholly new event occurring after the ntq, such as the occupier becomes seriously ill.  They reject the second submission because:

… we do not accept there is a practical difficulty in a situation in which an introductory tenant brings forth facts which show he has now improved his behaviour; a local authority will be bound to consider whether it should continue with the  proceedings but it will not be arguable that it is unreasonable for the Local Authority to continue with them having given the tenant his or her chance and with others waiting for accommodation.

And finally …

there’s Manchester CC v Mushin.  In summary, Mr Mushin’s wife and family left the home provided by Manchester under Part VII due to Mr Mushin’s domestic violence.  Manchester served an ntq and Mr Mushin relied on a gateway (b) defence on the basis that he did not commit domestic violence and he wanted to stay at the property in case his wife and children reutrned.  At the trial Manchester relied on Mr Mushin’s over-occupation but conceded that, if it was proved that domestic violence had been the reason for the service of the ntq, then a gateway (b) defence was open to him and should succeed if he had not had the opportunity to rebut the charge of domestic violence.  Manchester sought to withdraw those concessions intheir amended notice of appeal and skeleton.  But Jon Holbrook, for Manchester, decided not to seek to withdraw them preferring apparently to attack the judge’s findings of fact on this point.  As Waller LJ put it, “… the argument should have been that because Mr Mushin was in fact in accommodation for a family whereas he was now single, the court should have granted a possession order and  any challenge to unsuitability should have been brought by Mr Mushin under the relevant sections applying to the homeless” (at [43]).  Indeed, “there was nothing highly exceptional about Mr Mushin’s position – it possibly would have been if his wife and family wanted to come back and live with him, but the local authority continued its claim. 

Was there in reality any evidence on which the county court judge could base his finding that the ntq had been served because of the domestic violence?  Well, yes, actually, quite a lot.  Granted there had been two ntqs, only the first of which was relied on; although the housing officer at the time said that he thought it had been served on the basis of underoccupation, against that was the case history and the fact that the housing officer was one cog in the wheel, so to speak.

Conclusions

Forgive me some brief concluding thoughts, perhaps taking account of some of the observations made at last week’s conference as well (not really a law practitioner’s event, but lots worthwhile going on).  What it boils down to is whether there is a highly or seriously arguable gateway 9b) defence in which personal circumstances seem to play some role at least.  Barber is regarded as exceptional, but this is, of course, an empirical question and I wonder whether that notion of “exceptional” is actually brought out in the everyday lives and practices of local authorities and RPs, as well as occupiers.  We are still left with the real bottom-shifting question: what is exceptional?

As readers no-doubt remember, Shafi had held that, where an authority sought to restrain anti-social behaviour by way of injunction under s.222, 1972 Act, the court should, save in exceptional circumstances, decline to grant such an injunction if it was satisfied that an ASBO would also be available. In essence, if an ASBO could be obtained, then it must be obtained.

The authority sought an injunction against a group of varying size and persons who were engaged in car-cruises in Birmingham. As a non-driver, I hardly feel able to describe such events but, as I understand it, people with modified cars drive around, sometimes racing each other, showing off their cars. The activities are noisy, sometimes dangerous and, if they obstruct the highway, potentially unlawful. It must be awful to live next to one. The authority sought to restrain such events.

HHJ Oliver-Jones QC (sitting as a deputy High Court Judge) granted an order on a quia timet basis. He held that the absence of identified or identifiable persons meant that an ASBO would not be available; that there was no objection to granting injunctions against the world, since the order clearly described the prohibited activities and, in any event, any person alleged to be in contempt would need to be personally served.

Birmingham do not appear to be the only authority to obtain such orders in the last year or so, Stoke and Warwickshire have, apparently, also succeeded. As someone who thinks Shafi was wrongly decided, I’m not at all disappointed to see it being distinguished in this manner.

A magistrates court may make and ASBO against any person over the age of 10 if it can be proved (to the criminal standard of proof, using the civil rules of evidence) that he has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself and that it is necessary for such an order to be made – s.1(1), Crime and Disorder Act 1998 and R (McCann) v Crown Court at Manchester [2003] 1 AC 787.

At least one incident of ASB in the six months prior to the application must be proved – s.127, Magistrates’ Courts Act 1980. There is, however, no prohibition on the court considering conduct which pre or post-dates the complaint – Chief Constable of West Mercia Constabulary v Boorman [2005] EWHC 2559 (Admin); Stevens v South East Surrey Magistrates’ Court [2005] EWHC 1456 (Admin); Birmingham City Council v Dixon [2009] EWHC 761 (Admin).

Either party may apply for an ASBO to be varied or discharged (s.1(8), 1998 Act), although no order may be discharged during the first two years without the consent of the authority that obtained the ASBO (s.1(9).

The power to vary an ASBO includes a power to extend its duration – Leeds City Council v RG [2007] EWHC 1612; [2007] 1 WLR 3025. Where the variation seeks to impose more stringent obligations (including an extended length) on the defendant, the authority should lead evidence to establish that such an order is necessary – Leeds, above.

Significantly, there is no right of appeal to the Crown Court against a decision of the magistrates’ to vary (or not to vary) an ASBO; one must either seek judicial review or appeal by way of case stated – Langley v Preston Crown Court [2008] EWHC 2623 (Admin).

Birmingham had obtained an ASBO against Mr James in July 2006, to run for a period of 3 years. In December 2008, they applied to vary the ASBO so as to extend the duration, exclusion zone and list of persons that he could not associate with. It adduced evidence of drug related convictions in 2008 in another part of Birmingham. The court was also provided with evidence of convictions for breaches of the ASBO and CCTV footage of Mr James, together with others, hanging around (and obscuring his face) outside of some shops which was said to be further evidence of gang related activity.

The appellant opposed the making of the variation and argued that the authority should (a) apply for a fresh order and (b) prove some further act of ASB within six months of the application for the variation having been made. The DJ rejected both submissions, but stated a case for the High Court. The questions were:

(a) was it correct (on the facts of the case) for him to allow the variation and not require the authority to issue fresh proceedings?

(b) was it correct that an application for a variation did not require proof of further ASB within 6 months of the application being made?

The appeal was dismissed and both questions answered “yes”. There was no requirement to prove further ASB on an application for a variation. The power in s.1(8), 1998 was expressed in very wide terms and did not oblige the court to consider any particular type of evidence.

Some variations would, of necessity, not be predicated on further ASB (i.e. the defendant got a job in the exclusion zone). This was so regardless of the type of variation being sought.

The only question for the court was whether such a variation was necessary in order to properly protect the public. If the existing ASBO was not achieving that end then, in principle, it should be varied.

In deciding whether a variation was necessary, the court would need to have evidence before it to justify each variation and, in most cases, the evidence would be of further ASB, but, as a matter of law, it was not necessary to prove any such acts. S.127, 1980 Act merely required that the application be  made within 6 months of event or circumstance which allegedly rendered the original order inappropriate.

It was entirely proper for the variation to be made. There was no suggestion that the authority was seeking to defeat a right of appeal and the new complaints were closely linked to the ASB which underpinned the original order. It made sense to extend the original order and not require the authority to seek a fresh order.

On the facts of the case, one thing did, however, trouble the court. It appeared that the appellant had been in prison for most or all of the six months leading up to the variation application. If that was true, then any of the allegations against him could not have been true and it may have been that the DJ proceeded on a false factual basis. However, nether party was able to confirm the date of his imprisonment and so the court was unwilling to find that the DJ had erred on this basis.

* Jonathan Manning of Arden Chambers for BCC, Victoria Osler of Arden Chambers for Mr James. My attempt at humour. Sorry.

First, the facts: Mr Barber suffers from learning difficulties and a personality disorder of a permanent nature.  he was provided accommodation by Croydon under Part VII (as a non-secure tenancy) in 1999.  After an apparently clean record, in 2007, he swore at, threatened, and kicked (in the knee) the flats’ caretaker.  The council’s ASB officer then got involved and immediately served an NTQ, without considering Mr Barber’s circumstances or meeting him.  Subsequently, they did meet and, although some of the allegations were disputed, he did accept a police caution for an offence.  Croydon then issued possession proceedings, which were defended on a number of bases, although two were pursued to the CA (the gateway (b) defence and a DDA defence).  Reliance on the DDA lead to a joint instruction of a psychiatric expert (Dr Owen) who, in brief, found that his disability contributed to his behaviour in relation to the caretaker; if evicted his life would descend into chaos.  It should also be noted that there was just this one incident – there had been nothing else before or since.

The council, through the ASB team manager, nevertheless decided to proceed with the possession claim.  They did so for a number of reasons relating to the protection of their employees, sending the correct message to their tenants, the seriousness of the incident (even though isolated), and, most particularly, the manager was not convinced that the conduct was caused by Mr Barber’s mental disabilities (thus directly conflicting with the expert evidence).

The initial issue was the Doran/Taylor issue, ie at what point does the gateway (b) claim arise?  Doran said that the relevant point was the decision to serve the notice to quit; Taylor was far more expansive.  Patten LJ, giving the only reasoned judgment in this case,  sided with Taylor.  Patten’s LJ’s reasons are compelling, particularly in a claim such as the present:

… in principle, there is no reason to stop at that point [ie the NTQ].  In Kay Lord Hope spoke of the challenge under gateway (b) being to the decision of the local authority to recover possession.  That process involves not only the service of a notice to quit as a necessary first step but also the commencement and conduct of the possession action thereafter.  It seems to me that a local authority is bound to keep the position under review and to take into account any relevant facts which come to its notice at any stage in the proceedings.  This process of review has two obvious consequences.  The first is that it avoids any questions of retrospectivity by requiring the local authority to make a series of decisions which accommodate any new facts or other material relevant to its decision to seek possession.  The second is that it allows the local authority to re-consider new material subsequent to its initial decision to terminate the tenancy and so avoid the charge that it has failed to take all relevant matters into account.  By the same token, a decision to press ahead with possession proceedings taken following a re-consideration of the case subsequent to the notice to quit will be reviewable regardless of the legality of the earlier decision to commence the proceedings.

Wayne Beglan, for Croydon, relied on the ASB manager’s assessment as essentially curing any defect.  There then followed quite a lengthy discussion of the government’s ASB guidance and Croydon’s policy.  That can be cut quite short here because the essential points to note are twofold (1) both the guidance and the policy clearly delineate that action taken against people with disabilities requires a multi-agency partnership type approach and support for the individual; and (2) although Mr Barber’s action fitted into the most serious category of ASB for Croydon’s policy, which “will almost always result in legal action … for an outright possession order”, it only just did so, and the policy itself more broadly drew attention to the range of possible actions (such as an ABC) to change the behaviour of a perpetrator: “Simply to remove him to another location may not of itself solve the problem” (at [32]).

Christopher Balogh, for Mr Barber, argued that Croydon had pressed ahead with the possession claim regardless of the alternative possibilities to which they had given no consideration.  Patten LJ agreed.  There had been no liaison with other mental health or social services to develop an alternative strategy.  The ASB manager’s assertion that there had been no further disturbance at the property after the NTQ because of its deterrent effect also meant that there was no need to press on with the possession claim.  Patten LJ continued (at [43]):

But the principal criticism that can be made is that Mr Hunt carried out the analysis of whether some alternative course of action would prevent any further instances of ASB in the future without assistance from the specialised agencies and without, in my view, giving Dr Owen’s report the weight which it clearly deserves; indeed any weight.  Thus he appears to have rejected Dr Owen’s view that the incident was linked to Mr Barber’s disabilities, although no reasons are given as to the basis on which this was done.  There was also no apparent consideration of the possible consequences for Mr Barber of losing his flat which Dr Owen considered would cause his life to descend into chaos.

Any steps to explore alternatives should have taken place prior to the trial of the claim.

Conclusion: Croydon’s claim was Wednesbury unreasonable in an old-fashioned sense.  Wayne Beglan appears to have been concerned that Croydon would be issue-estopped if they sought possession on the same grounds again, an argument which seems to fly in the face of what is being required, ie a proper reconsideration of all the facts to satisfy the council’s public law obligations.

Comment:

Croydon were clearly on sticky ground after Patten LJ’s refutation of the narrow approach taken in Doran.  Patten LJ’s reasoning on this point is compelling and the gateway (b) claim must attach to each decision taken by the public authority on the way to the ultimate sanction.  Such an approach may well actively assist public authorities as previous decisions can effectively be remedied by a subsequent proper consideration, a point made by Patten LJ.  Croydon seemed to have adopted a trigger happy approach without taking into account the evidence – or, perhaps worse, disregarding the expert evidence.  I have an idea of ASB teams as having a “prosecution-first” mentality, which may be unfair but reflects a criminological bent on my part.  What this case is telling us is that public authorities need to have regard to all the evidence and the proper application of their policy (in this case, consideration of the alternatives).  Mr Barber’s personal circumstances were clearly relevant here (cf Defence Estates) because of Croydon’s policy.  One slight pang I have about this case, though, is whether it is requiring something close to a proportionality assessment of the possession claim (which may go further than other courts have gone in the past, eg Stokes esp at [77], although it does reflect the joint instructions to the expert, who was also asked to make effectively a vulnerability assessment for priority need, as well as the terms of the policy itself).

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ’52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

When a Magistrates’ court makes a stand alone ASBO (s.1(1), Crime and Disorder Act 1998), appeal (by way of re-hearing) is to the Crown Court. Neither the CPR nor the Criminal Procedure Rules govern such applications, rather, they are dealt with by the Crown Court Rules 1982. Those rules require that notice of any appeal be lodged with the Crown Court within 21 days of the decision under appeal, although the court has power to extend that time. An application to extend time does not (rather surprisingly) have to be served on the respondent to the appeal.

In the Birmingham case, RR sought to appeal his ASBO some ten months after it was made and only after he was convicted for breaching the terms of the ASBO. He suggested that he had been unaware of the ASBO trial (which was untrue, as he had been personally served with both the interim and final ASBO). The judge granted permission to appeal out of time on the papers. BCC questioned this, noting both the lengthy delay and taking issue with the suggestion that RR had not known about the ASBO trial.

A different Judge listed a hearing to permit BCC to make representations and, at that hearing, the original judge who had granted permission out of time confirmed his decision. Even though the court had been misled by the suggestion that RR had not known of the ASBO trial, it was still appropriate to grant permission to appeal out of time.

In the South Gloucestershire case, AW and NW sought to appeal some six weeks out of time. When the council questioned these decisions, it was informed that the judge was “not prepared to revisit” the decision and that the court did not “have to show how it made its decision.”

Both authorities issued procedings for judicial review of the respective Crown courts.

The claims were dismissed. It was important not to treat the 21 day rule as an unimportant formality and an appellant had to explain why they were appealing out of time. The court should also have regard to the problems inherent in a re-hearing, both in terms of deterioration of the memory of witnesses and the additonal costs to a public authority. Whatever decision is reached, the judge must give adequate reasons for his decision.

It was significant in both cases that the appellants were teenagers. Courts were well aware that even unproblematic teenagers did not always do what was in their best interests at the right time. In addition, an ASBO was a serious remedy, particularly when made against younger persons.

In the Birmingham case, it was entirely possible that RR had not fully appreciated the importance of the ASBO being made against him. At the material time he had been arrested for serious drugs offences and was suspected of involvement in an attempted murder. The ASBO may not have been upper-most in his mind. The judge had been wrong, however, not to consider more fully (or at all) the merits of the proposed appeal. The prospect of success was clearly material to whether or not to grant permission.

However, the defect had been cured once the question of leave was revisited at the oral hearing. That hearing had gone on for some 75 minutes and had involved BCC making submissions. In those circumstances, it could not be said that the decision was unreasonable or irrational.

In the South Gloucestershire case, the judge had been given adequate information on which to base his decision. The problem was that he did not give adequate reasons. That was not, however, a sufficient basis to set aside his decision.

However, for the future, appellants should provide details as to the merits of the appal in their grounds of appeal and give reasons for delay in applying. They should also, if possible, address the question of prejudice to the proposed respondent. Consideration should also be given to amending the 1982 rules so as to require such an application to be made on notice to the proposed respondent.

I’m not entirely happy with this as it seems to me that both authorities were treated quite badly here. There is an easy solution of course – simply amend CPR 2.1 so as to make it apply to the Magistrates and Crown Courts in their civil capacity. Perhaps I should mention that in my letter to Santa…

The claimant were two brothers, aged 13 and 14. They were subject to ASBOs which prohibited them from engaging in certain anti-social behaviour in the borough of Pendle. With seven months of the ASBO still to run the family moved to another area and the police (who appear to have obtained the original ASBO) applied to vary the geographic scope of the order.

The brothers instructed a solicitor who appears to have attended the first hearing of the variation application on their behalf. The application was opposed and a trial date set for December 2008.

When the trial came on, neither of the brothers attended, but their solicitor attended on their behalf. One of the brothers was at school (having been taken to school that morning by a taxi arranged by the local education authority) and the other was unable to attend because his mother was indisposed.

The Magistrates’ had to decide whether or not to proceed in the absence of the brothers. They concluded that they should do so. They proceeded to hear the evidence and varied the ASBO in the manner sought by the police.

The brothers applied – successfully – for judicial review of the variation. Langstaff J held that there had been a breach of the audi alteram partem principle (the right to be heard). The reasons for non-attendance were genuine and not designed to frustrate the process of the court and, in those circumstances the Magistrates’ should have adjourned the matter for a short time. It would be a rare case where it was appropriate to proceed in the absence of one party where that party was not intentionally absent.

The variation was accordingly quashed.

I’m not entirely with Langstaff J on this one (which will no doubt cause his Lordship considerable distress). Not only were the brothers represented by their solicitor (albeit he did not have full instructions) but it does not appear that any application to adjourn was made. In those circumstances, I’m not entirely surprised that the Magistrates’ decided to proceed. The rights of the community and the inconvenience to the witnesses must, contrary to the view of Langstaff J, be a relevant consideration (see, by analogy, West Kent Housing Association v Davies (1999) 31 HLR 415, where Robert Walker LJ explains the importance of appreciating the difficulty that a claimant can have in marshal ling evidence and witnesses in ASB cases).

An ASBO can be imposed in one of three ways: by complaint to a magistrates’ court (sitting in its civil capacity); by the county court in principle proceedings (i.e. ancillary to another claim) or by a criminal court which has first convicted someone for a relevant offence. In all cases, it is a crime to breach the terms of an order.

Section 1(10) Crime and Disorder Act 1998 provides a person charged with breaching an ASBO with a defence if they had a reasonable excuse for so doing.

In Charles, Mr Charles had been made subject to a post-conviction ASBO which he was alleged to have breached by threatening, assaulting and attempting to unlawfully evict one of his tenants. He contended that he had merely been trying to deal with noise nuisance and collect rent arrears and that, therefore, he had a defence under s.1(10). He argued that it was for the prosecution to prove that he did not have a reasonable excuse.

His argument was rejected by the trial judge but upheld by the Court of Appeal. Section 1(10) merely imposed an evidential burden on a defendant. Once that had been discharged, it was for the prosecution to prove that there was no reasonable excuse. This had to be done to the criminal standard of proof.

This question was free from authority previously, so it’s useful to have the law clarified. The authors of the “Guide for the Judiciary on ASBOs” can feel vindicated, since they had already formed the view that this was the law (available here as a .doc file, see para. 6.5).