02/03/2008

Considering suspension of possession for ASB

London Borough of Lambeth v Debrah [2007] EWCA Civ 1503 was an application for permission to appeal a Circuit Judge judgment giving an order for possession, which was not suspended or stayed. The appeal was not against the order, but the refusal to suspend. The case was an ASB possession order. There had been serious problems with permitting drugs to be taken at the premises, and a closure order had been made but said aside on appeal. A manslaughter had been committed by someone in the area using drugs, and there was some evidence that culprit may have used drugs at the premises. There were many complaints by neighbours. The appellant had given an undertaking on no possession or allowing possession of drugs on the premises in April 2007, which had not been breached.

The first order judge did not suspend the possession order on finding that there had been serious breaches about which the Defendant had not been frank, and there was not sufficient – in the way of a keyworker’s statement or the like – to be confident of future behaviour.

The first order judge noted the requirement of s.85A Housing Act 1985 that he had to consider the effect of the nuisance on others and the continuing effect the nuisance is likely to have. In doing this he addressed the stabbing that had occurred in the area of the flat, in the context of neighbours fears about future incidents.

Ground 1 of the appeal was that the judge had relied improperly on the manslaughter, without evidence to a connection. The Court held:

The judge makes it clear that it is the repetition of events to which he is drawing attention, those being events which can reasonably cause great anxiety and concern and put at risk residents. That was the only linkage that he was making.

Ground  2 was that a) the judge had failed to give due weight to there being no further allegations since April 2007, and b) that the judge had taken s.85A into account when considering a stay, where s.85A applies to the making of the possession order.

The Court held that, while s.85A applies to the making of the order, in considering a stay, the judge’s discretion under s.85(2) is unfettered. However, the Court of Appeal held in Manchester City Council v Higgins [2005] EWCA Civ 1423 that it should be exercised with particular reference to the future. Additionally, because s.85A considerations only apply to the making of the possession order under statute, does not mean that the same considerations are thereby ruled out of considering a stay.

As for the issues of weight, the decision was not one that the judge could not reasonably come to in the proper exercise of his discretion and the applicant was not submitting that the decision was perverse.

Permission refused.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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