A noisy appeal

Curo Places Ltd v Walker [2018] EWHC 2462 (QB)

This was Curo Places appeal of a Circuit Judge’s dismissal of its possession claim against Ms Walker.

Ms W had a six year fixed term assured tenancy of a flat from Curo Places. Soon after the tenancy started, Ms W’s neighbour  in the downstairs flat began complaining about noise coming from Ms W’s flat. Curo served a notice seeking possession on grounds 12 and 14 Schedule 2 Housing Act 1988 – both on the noise nuisance. These are both discretionary grounds, but where ground 14 is made out, then, through s.9A, the court must consider in particular the effect the nuisance or annoyance has on other persons, any continuing effect it is likely to have on such other persons and the effect it would be likely to have on such persons if it was repeated.

In the possession proceedings, the particulars of claim

set out an extensive set of about 150 separate allegations of noise caused by Ms Walker in her flat which was heard by neighbours. The allegations include sounds of banging on the floor, slamming doors, shouting and swearing in her flat. They also include being verbally abusive and using racist language. The large majority of instances relate to Mr Azami while a few related to other unnamed residents.

The Particulars also relied on Ms W’s conviction at Bath Magistrates for harassment at the premises. Ms W was found not guilty of racially or religiously aggravated harassment.

Ms W defended, and also defended under s.15 Equality Act 2010 – disability.

In the Defence

Ms Walker’s case was that while some of the allegations were admitted, some were denied (this sentence of the Defence does not specify which, and explains that will be dealt with in Ms Walker’s evidence). The Defence also asserts that a large proportion of the noise complaints are due to poor sound insulation between the flats and that many of the occasions complained of, such as those relating to banging, arise from the fact that Ms Walker has two small children who are very active early in the morning. The Defence admits that Ms Walker had banged on the floor on occasions, stating that this was because she herself was disturbed in the early hours by her neighbour’s activities. The Defence explains that Ms Walker has a number of mental health conditions that result in her being impatient and having low levels of tolerance of stress, shouting, swearing and crying; and she has been referred to a specialist behaviour management programme.

At first instance, the judge had an expert consultant’s report on Ms W, and heard evidence from the downstairs neighbour, noting he

did accept that the noises from Ms Walker’s flat tended to follow noises from his own property (although not always). The judge held that Mr Azami believed that he and his family were being targeted by Ms Walker’s behaviour, that all the noises were part of this abuse and that the abuse was on racial grounds.

The judge also heard a recording, supposedly of a ‘rather shocking’ incident, and noted

it turned out to be underwhelming in that it seemed to the judge that the insulting words were “spaced out in time very considerably and sounded much more as if the defendant … was either talking to herself or was talking for the benefit of someone else who was present, or possibly even on the telephone, but certainly not as if she was intending to communicate with the people downstairs, as Mr Azami would have believed” (paragraph 32). The judge held that these samples demonstrated that there really was a serious problem in the building in relation to the sound insulation. He held that this meant there was a significant potential for the sounds generated by ordinary everyday activities (such as use of the lavatory and people just talking) to cause disturbances between the properties.

In the judgment, the first instance Judge found that the grounds were made out, but on reasonableness, found

The judge specifically addressed the fact that Ms Walker herself was still occasionally subjected to racial and other abuse, not by Mr Azami. Then, provoked by the insult, Ms Walker might repeat it back to herself and given the poor sound insulation that is audible downstairs. The result has been that Mr Azami and his family think it is being directed at them, when it is not. The judge found at paragraphs 42-43 that much of what is complained of are actually private conversations within her flat or in common parts which are not directed to Mr Azami and escape from Ms Walker’s property due to poor sound insulation. Owing to his negative experiences in the past, Mr Azami thought they are directed at him when they are not.

The judge then addressed other complaints – about banging, door slamming and other noises. The judge found that much of it was noise caused by normal life, that Ms Walker was not aware of how noisy it would actually be, that the problem was exacerbated by the poor sound insulation and that Mr Azami wrongly believed it was being directed at his family.

Finally in this section the judge dealt with the conviction for harassment and the question of racial elements of the statements alleged to have been made by Ms Walker. As regards the racial elements the judge was not satisfied that this part of the case was made out (paragraphs 48-50). As regards the conviction the judge said (paragraph 47) that he did take account of it but also said in the same paragraphs that he was “not bound by the decision of the Magistrates”.

The judge noted that the incidents seemed to be diminishing, and that sadly it may cause the downstairs neighbour to try to move. But overall, without considering the Equality Act defence, decided not to make a possession order on grounds of reasonableness.

“Overall, my assessment is that, even without considering the Equality Act defence, I would not think it reasonable to make any kind of possession order in this case against the defendant. This is a wholly, and I emphasise this, this is a wholly exceptional case. In an ordinary case, where there were not these extra factors of lack of noise insulation, of mental health problems and so on, this would be a very serious case and an obvious one for making an outright possession order.”

The Equality Act defence would also have been made out as “eviction was not a proportionate means of achieving a legitimate aim when there were other possible measures which could be taken including behaviour management courses for Ms Walker, solving the problem of screeching pipes and ameliorating the sound insulation, moving one or other or both parties or at least stopping the doors from banging”.

Curo appealed. The grounds of appeal were:

i) Ground 1 is that the judge was wrong to hold that he was not bound by the criminal conviction.

ii) Ground 2 is that the judge failed to give any or any adequate consideration to s9A of the Housing Act despite having found that the breaches of tenancy and/or nuisance would continue and that the complainant would continue to suffer the same.

iii) Ground 3 was that the finding that a possession order was not reasonable or proportionate because Curo should deal with the sound insulation ignored the fact that there was no reasonable adjustments defence under s20 of the Equality Act nor could such a duty require Curo to alter any physical feature of the building and there was no evidence the building did not comply with building regulations.

iv) Ground 4 was that having found that this was a serious case, the grounds for possession had been made out and that the breaches of tenancy would continue, the decision that it was not reasonable or proportionate to make a possession order was perverse and based on irrelevant considerations (sound proofing, moving the defendant or main complainant) and further it failed to consider the possibility of a suspended possession order.

v) Ground 5 was that no Equality Act defence was pleaded and that in any event the expert evidence did not link the behaviour complained of to Ms Walker’s mental health.

On ground i),

I believe the point the judge was making with these words was that given the view he had formed he was not required by the conviction to take a different view of Ms Walker’s conduct overall. Given the lack of clarity about the facts on which the conviction was based, in conducting his overall assessment the judge was entitled to do so.

Ground 1 dismissed.

On ground ii), iii) and iv) – taken together as all addressed the appellant’s characterisation of the judge finding that the breaches of the tenancy agreement were likely to continue.

Appealing a decision on reasonableness required an error of principle, failing to take into account relevant matters, or the decision to be plainly wrong. And then:

There is no doubt that the judge held that Ms Walker had breached the tenancy agreement in the past and that what the judge was saying in paragraph 56 was that “the disturbances” would continue in the future. However in my judgment the appellant is wrong to equate the disturbances the judge was recognising would continue, albeit at a reduced rate, with the activity found to have breached the tenancy agreement in the past. On the contrary the judge had held that much of the disturbance he had identified was not caused by any breach of the tenancy agreement or nuisance by Ms Walker. The case based on targeting Mr Azami’s family and racial abuse had been rejected. Part of the difficulty was caused by the fact that Mr Azami, wrongly, thought his family was being targeted by Ms Walker. The judge found that a significant cause of the disturbances was the combination of poor sound insulation and ordinary household noise.

The judge clearly recognised that Ms Walker might breach the tenancy agreement in future but, again reading the judgment as a whole, the judge was taking the view that this was by no means inevitable. The likelihood of future events, their seriousness and its impact on Mr Azami were all part of what the judge was considering in the reasonableness assessment. Overall the conclusion he reached was that it was not reasonable to make a possession order. As the trial judge that is an assessment he was in the best position to make. It cannot be said he was plainly wrong in doing so.

On ground iii) and the sound insulation point

Ground 3 raises a specific point about sound insulation but again, it is based on a mischaracterisation of the judgment. Contrary to ground 3, the judge did not find that the sound insulation was a breach of the building regulations. He accepted that they did comply (paragraph 57). Also contrary to ground 3, the judgment does not find that the landlord had a duty to alter the building in any way nor did the judge require or insist that they did so. His consideration of alternative measures was part of his separate assessment under the Equality Act 2010 but that is another matter. In that context he found that dealing with the insulation was a less drastic measure open to the landlord than eviction but, in the context of the possession claim itself (as opposed to the Equality Act 2010 defence) all the judge was doing was taking the sound insulation into account as part of his overall assessment. He was right and entitled to do so and so I dismiss ground 3 as well.

Then

Standing back, I can see that in circumstances similar to the present case, another judge might have been persuaded that the likelihood of continued breaches of the tenancy agreement and their effect on Ms Walker’s neighbours such as Mr Azami was sufficiently high that a possession order should be made albeit that the circumstances warranted a suspension of that order as a means to give Ms Walker the chance to regulate her behaviour. However that is not a justification for overturning this judgment. The judge clearly understood the law he was required to apply and, having found the grounds made out, went on to carry out a detailed assessment of reasonableness and of the factors under s9A of the Housing Act and made no error in doing so. In my judgment grounds 1 to 4 should be dismissed.

Ground 5 wasn’t addressed, as the Judge’s decision on the possession order stood. But the Equality Act defence was argued before the Judge in full and did not take Curo by surprise.

Appeal dismissed.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in ASB, assured-tenancy, Housing law - All, Nuisance, Possession and tagged .

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