Batt, R (On the Application Of) v The County Court at Central London (2025) EWHC 3071 (Admin)

This was quite a remarkable (and successful) judicial review of a decision of HHJ Gerald to refuse permission to appeal on four grounds from an inunction order made against Mr Batt by a District Judge. It also involves what can charitably be said to be an innovative approach to section 9A Landlord and Tenant Act 1985 – the fitness for human habitation obligation.

Mr Batt had a regulated tenancy of a flat of the first floor of a semi-detached house in Brockley. He had been given permission to also rent the loft space above his flat. Mr Batt is an artists and used the loft for storage of artist’s materials. In 2022, the new landlord, a Ms Freeman, issued a part 8 claim for an injunction for access to inspect the property citing the right of access under s.11(6) LTA 1985, s.148 Rent Act 1977 and (weirdly) citing the landlord’s obligations under s.8 LTA 1985. (These, obviously, didn’t apply, because a) the rent level and b) from 20 March 2019, s.8 only applied to Wales)

An interim injunction required Mr Batt to allow access to a surveyor and fire safety assessor, which was given. The fire safety assessor said about the loft

“The roof space is not designed for storage of combustible material as there is no partitioning to preserve the fire integrity of the means of escape on the floor below. The area must be kept clear of any storage at all times or partitioning and flooring installed to replicate the lines of fire compartmentalisation with the communal areas.”

Ms Freeman then sought that the injunction should require Mr Batt to remove ‘his belongings’ from the loft and be forbidden from storing belongings in the loft in the future.

At the further hearing on this, Ms Freeman’s counsel sought oral permission to amend the Part 8 claim to rely on section 9A Landlord and Tenant Act 1985. Mr Batt, who was in person with the assistance of his brother, had only become aware that Ms Freeman proposed to rely on s.9A that morning, when he received her counsel’s skeleton argument. The s.9A argument was that Ms F, as landlord, had an obligation to keep the property fit for human habitation, including fire risks, and that this gave Ms F the right to enter the loft and remove Mr B’s belongings, or to have Mr B remove them. (Yes, I will come back to this…).

The DJ, having decided that the belongings had to be removed, then made an order that Mr Batt, as tenant, must

“4. By 4.00pm on 9 August 2023, remove all of his items / belongings from the attic / loft areas. In default of the Defendant’s compliance with the paragraph, the Claimant may enter the attic / loft area and remove the Defendant’s items and belongings.”
And that he be forbidden from:

“6. Storing any of his items / belongings in the attic / loft areas after 4.00pm on 9 August 2023.”

Mr Batt sought permission to appeal, initially refused on the papers. Mr Batt, now represented sought an oral renewal hearing, which came before HHJ Gerald.

Mr B argued

“In granting the injunction and the terms of the injunction the Learned Judge erred in law in:

(1) Erred in considering as a matter of jurisdiction there was a lawful basis for granting an injunction in respect of a breach of s.9A Landlord and Tenant Act 1985 as against the Appellant the tenant.

(2) Erred in holding that it did not matter whether the loft was part of the Appellant’s Demise. There was a failure to recognise that the prohibition from using the loft if part of his demise amounts to a derogation from grant and is in breach of the covenant for quiet enjoyment that applies to the tenancy.

(3) Erred in law in considering that in the circumstances of this case the Respondent had a choice as to how to address the breach of section 9A: (i) by prohibiting the use of the loft by the Appellant (ii) carrying out the works recommended in the Report prepared by Mr Ballam to address the hazard to the loft, and was entitled to choose the cheaper of the options in accordance with the approach in Riverside Property Investments Ltd v Black Hawk Automotive (2004) EWHC 3052 (TCC).

(4) Erred in holding that the Respondent did not have to carry out the works to the loft as recommended by Mr Ballam; as they would constitute improvement works to the property.

(5) Erred in holding that s.11(6) Landlord and Tenant Act 1985 covering viewings of the property for the purposes of sale.”

At the hearing, permission was given on ground 5, so we do not need to deal with that. However, grounds 1 to 4 were refused permission.

On ground 1, Mr Batt argued that there was no jurisdiction to grant an injunction against a tenant under section 9A LTA 1985.

On ground 2, Mr Batt argued that the issue of whether the loft was part of the demise (which Ms Freeman had argue it wasn’t, at least in the alternative) required a finding, because if it was part of the demise, preventing Mr Batt from using the loft was a derogation from grant. Counsel for Mr Batt was Edward Fitzpatrick

During the course of submissions, the Circuit judge pressed Mr Fitzpatrick to consider whether, if the mandatory orders made by the District judge had referred to “hazardous items / belongings” rather than simply “items / belongings” any criticism could be levelled at the mandatory injunctive orders made. Having done so, the Circuit judge articulated his understanding of Ground 1 as pleaded, but pressed Mr Fitzpatrick on his own scenario as follows:
“JUDGE GERALD: Your ground one then is that – whilst the tenant could not be ordered to remove hazardous materials from the loft, it was not on the basis of section 9A. And it was not section 9A, it must be under the basis of the tenant being under a breach?
MR FITZPATRICK: Yes, but I am not conceding that the judge ought to have made an order on the basis of un-tenant like behaviour. I have referred to that in paragraph 36 and 37. And obviously there would have to be findings as to whether this was un-tenant like behaviour in all the circumstances.
JUDGE GERALD: Well, there would have to be a pleading that it was a breach of the tenant’s obligations, which it was not pleaded.

(…)

JUDGE GERALD: Just going back to section 9A, if the landlord had put the hazardous material in there, that would be in breach of the landlord’s –?
MR FITZPATRICK: Well, yes. If the fire authority finds there is a hazard because of combustible materials put by the landlord, very often now you get a storage cupboard in communal areas with sleeping bags and the like, and the fire authority will say, “Well, that is a hazard”. And effectively, if that creates a situation where it is not fit for human habitation, the landlord would be required to remove it, yes.
JUDGE GERALD: To be honest, I am just struggling why … a landlord and tenant – okay, I see. It is a very narrow ground for an appeal. Are you saying – this is why I was asking about paragraph 4 of the order. If the tenant had hazardous materials there, it would be very surprising if –
MR FITZPATRICK: Oh –
JUDGE GERALD: Can I finish? It would be very surprising if there was not some sort of jurisdiction for the court to order that the hazardous material be removed, and I would find quite a lot of persuading to say well, there is nothing the landlord could do.
MR FITZPATRICK: That is not our argument.
JUDGE GERALD: Right. When it comes to paragraph 4, when we started off, we said if you put in the word “hazardous” there, is there anything wrong with that? I am not talking about your objection to it from a practical point of view because you are taking a very technical point of view. I think your answer to that was – or how I understood your answer was that — well the court could make such an order for a tenant to remove hazardous material, but that would be based on a breach of the tenant’s implied obligation, not the landlords? Right?
MR FITZPATRICK: Yes. I entirely agree if you kept hazardous material, then that could amount to un-tenant-like behaviour, because a tenant should not keep –
JUDGE GERALD: So had the landlord applied for an injunction on the basis of the tenant’s obligation and the order been confined to hazardous materials, then there would be no objection to that which has been ordered?
MR FITZPATRICK: No, had it been done by consent, I agree –
JUDGE GERALD: I am not talking about consent. You are taking a technical point of view, so there is no point in saying, well, we agree to do all of that, but we still don’t want the order to be made, because it does not help me at all. Because you are trying to get permission to appeal, and therefore it has to be on a legal basis, as opposed to just, “Oh, well, we would have done what you wanted.” Or, “We’ve done everything you wanted.” Because you are taking the technical approach. So is then the objection, the real objection to paragraph, it is not so much jurisdiction, whether or not the right covenant was used, but more that it is all of his items and belongings, because it can only be the hazardous ones which should be removed? It should not be all of his belongings, because he has been granted a tenancy of the room.? So in other words, the injunction goes too far?
MR FITZPATRICK: Yes, certainly, yes, it would have been conceded that hazardous material should not be stored I the loft. I suppose the difficulty is that the fire report refers to combustible material, so any material, pretty much household items, are likely to be combustible. And the main objection is not being able to store any items or belongings in the attic under 6.

Then, in the extempore judgment refusing permission on grounds 1-4, HHJ Gerald held:

“5. But de bene esse, five grounds of appeal are now sought to be relied upon. The first is that the learned district judge erred in ordering the defendant to remove his belongings from the attic area by reason of reliance under section 9A of the Landlord and Tenant Act 1985. It would appear that the argument here is that if the order is read to the effect that the order was being confined to combustible or dangerous items, there would be no problem in the district judge having made the order he did because, apart from a statement of the obvious that nobody should be keeping such dangerous materials in a roof or other space within demised premises, that would be in breach of a tenant’s obligations to use the premises in a tenant-like manner.

6. By using section 9A, it is said that the order itself is undermined because the wrong legal basis was used for achieving “the right order”. It seems to me that this is a somewhat artificial argument because, in the circumstances of this case, there was no reason why the actual order which was made should not have been made. The intention was for combustible or dangerous items to be removed from the loft space, which has occurred, and there is no dispute as far as I can see, or no doubt that the court had jurisdiction to make such an order under the tenant’s implied obligation, and the fact that the wrong legal basis appears to have been used seems to me to be of no materiality, because ultimately what is being appealed is the order, not the reasons for it. Therefore, if I were prepared to allow the amended grounds for appeal to be relied upon, I would refuse permission to appeal with ground one.”

The Circuit judge refused permission with respect to Ground 2 on the basis that the District judge had made no reference in his judgment “to a distinction between the various parts of the demise” and that there was no ground of appeal stating that made an incorrect finding of fact in the absence of any evidence before the District judge as to the nature and extent of Mr Batt’s demise. The Circuit judge likewise refused permission in respect of Grounds 3 and 4, holding that those grounds were “based on the assumption that the loft was comprised within the demise” but there being no finding to that effect.

Mr Batt then brought this judicial review of the refusal of permission. Permission for judicial review was given on the basis that:

in circumstances where Mr Batt’s case raised both a jurisdictional issue and an important fairness question that merited full consideration, it was arguable with a realistic prospect of success that s.9A of the 1985 Act did not provide the authority that the District judge believed it did, that in consequence a true jurisdictional point arose on appeal and that the jurisdictional point had not been engaged with by the Circuit judge such that the case came within the narrow scope for judicial review. In the circumstances, and as noted, the Deputy High Court judge gave permission on the following grounds of judicial review:

i) In dealing with the case on the 4 September 2024 His Honour Judge Gerald acted in complete abrogation of the judicial requirements in considering whether or not to grant permission to appeal on the first four grounds raised. There was a failure to adjudicate on matters upon which the Court had a duty to address.

ii) There was a denial of the Claimant’s right to a fair hearing.

It was accepted by Mr Batt that the jurisdiction to judicially review a permission to appeal decision was a very narrow one, as per R (Sivasubramaniam) v Wandsworth County Court (2002) EWCA Civ 1738 and Gregory v Turner (2003) EWCA Civ 183, where there was a denial of a right to a fair hearing, and/or jurisdictional error, such that “the judicial process itself has been frustrated or corrupted”, R (on the application of Strickson) v Preston County Court (2007) EWCA Civ 1132.

Mr Batt argued that this was such a case.

The High Court agreed.

Ground 1 of the grounds of appeal raised a true jurisdictional point

It was in this context that, whilst in an exchange following the judgment the District Judge told Mr Batt that he was being given “the choice to remove the items yourself”, injunctive orders in mandatory terms with a penal notice attached were made against Mr Batt as tenant as a means of facilitating the performance by Ms Freeman of her obligations under the implied covenant under s.9A. The District Judge thereby appears to have accepted that s.9A of the 1985 Act provides jurisdiction to make mandatory injunctive orders against a tenant as a means of facilitating the performance by the landlord of an implied covenant.

Within this context, I am satisfied that ground 1 of Mr Batt’s grounds of appeal raised a true jurisdictional point on appeal. Namely, whether s.9A of the 1985 Act provided the jurisdiction that the District judge believed it did (jurisdiction to make mandatory injunctive orders against a tenant as a means of facilitating the performance by the landlord of an implied covenant) and whether, therefore, the mandatory injunctive orders in the terms approved by the District judge against Mr Batt as tenant were wrong for want of jurisdiction.

But the Circuit Judge had failed to address that ground.

The evaluation of the Circuit judge’s approach is somewhat complicated by the manner in which the Circuit judge dealt with the amended Grounds of Appeal. As I have noted, and appreciating as I do that the Circuit judge was giving an ex tempore judgment in a no doubt busy list, in his judgment he described the grounds of appeal as being “de bene esse”. Later in his judgment the Circuit judge appeared to suggest that he had not formally permitted any amendment, stating “if I were prepared to allow the amended grounds for appeal to be relied upon”. However, as I have also noted, in the order that the Circuit judge made, he granted permission to amend the grounds of appeal in the terms pleaded on behalf of Mr Batt.

A further pleading issue also complicates matters. Standing back to consider the Circuit judge’s decision as a whole, the ultimate basis for refusing permission on Ground 1 appears to be that there was no reason not to grant mandatory injunctions based on a breach of a tenant’s obligations to use the premises in a tenant-like manner. However, as the Circuit judge himself acknowledged towards the beginning of his exchange with Mr Fitzpatrick, that had not been pleaded in the Claim Form, whether originally or as amended, as the basis for injunctive orders against Mr Batt as tenant.

More fundamentally, in addition to refusing Ground 1 on a basis that had not been pleaded in the Claim Form, in my judgement the Circuit judge failed to conduct a proper examination of, and to make an effective determination of, Ground 1 as pleaded. Namely, whether s.9A of the 1985 Act provided the jurisdiction to make mandatory injunctive orders against a tenant as a means of facilitating the performance by the landlord of an implied covenant and whether, therefore, the mandatory injunctive orders in the terms approved by the District judge against Mr Batt as tenant were wrong for want of jurisdiction.

I accept Mr Fitzpatrick’s submission that the Circuit judge, instead of conducting a proper examination and effective determination of Ground 1 as pleaded, disregarded the substance of Ground 1 and, in effect, erected a his own ground (that the ambit of the order made was too wide) and demolished that ‘straw man’ ground by hypothesising the availability a narrower order with an alternative justification (based on a conjectured application for an order confined to hazardous materials under a jurisdiction grounded on the tenant’s obligations). Rather than examining and determining the substance of Ground 1, i.e. whether the District judge had been right to conclude that s.9A of the 1985 Act established both a legal or equitable right of Ms Freeman as landlord which merited protection and a legal or equitable principle which justified exercising the power to grant injunctive orders against Mr Batt as tenant, the Circuit judge sidestepped Ground 1 as pleaded, formulated his own purported basis for making the orders and refused permission on Ground 1 on that basis.

A final difficulty emerges from the approach taken by the Circuit judge to Ground 1. Whilst he posited a narrower order based on a conjectured application for an order confined to hazardous materials under a jurisdiction grounded on the tenant’s obligations, he refused permission to appeal. This left in place the wider order that the Circuit Judge had himself deprecated during the course of argument as being too wide in it its ambit when he observed that “It should not be all of his belongings, because he has been granted a tenancy of the room. So in other words, the injunction goes too far.” Accordingly, in addition to failing to conduct a proper examination of, and to make an effective determination of, the substance of Ground 1 as pleaded, and refusing permission on Ground 1 on a basis that had not been pleaded at first instance, the Circuit judge left in place a mandatory injunctive order with penal consequences that the Circuit judge himself had considered too wide in its terms.

This amounted to a failure to enquire or adjudicate upon a ground of appeal that it was the Circuit Judge’s unequivocal duty to address.

This also amounted to a denial of a fair hearing as a fundamental departure from correct procedure.

Refusal of permission quashed and the matter referred back for a fresh consideration of permission to appeal before another Circuit Judge.

Comment

This has to be right. As recently raised in Southern Housing v James Emmanuel (2025) EWCC 58 (our note), there has to be a jurisdictional basis for an injunction order. A ground of appeal challenging the very basis on which the injunction order was made has to be considered seriously, not waved away on the basis that it appeared to be the sort of situation (when assuming facts that were not found or admitted) in which an injunction probably should have been made, albeit on a different basis and of different extent.

It is for the claimant to set out the jurisdictional basis on which the injunction is sought, as well as the evidential one. Here, the claimant relied (via amendment at the hearing) on section 9A only, not untenant-like conduct or any other breach by the tenant. If that pleaded basis was not made out, the injunction could not be granted. This is not a ‘technical argument’.

Now, on the section 9A issue, I am not going to make any definitive statements, given that Mr Batt will have a further permission to appeal hearing on that question. But I will say that Mr Batt’s initial appeal submissions that s.9A(2)(a) and s.9A(3)(a) mean that there is no obligation on the landlord where unfitness arises from lack of works or repairs where those are the tenant’s duty, or where the unfitness arises from the tenant’s breach of covenant would have some force. If no obligation on the landlord, then it cannot in turn be the basis for an application for an injunction against the tenant. S.9A simply wouldn’t apply.

Further, where the unfitness arises from the physical structure of the demised property (here lacking compartmentation etc), the landlord’s obligation is to remedy the defect, not to restrict the tenant’s use (assuming that the use is not in breach of tenancy, etc.). As argued by Mr Batt, to restrict the tenant’s (lawful) use is derogation from grant.

However, as it appears from this judgment that Mr Batt and Ms Freeman are no longer in a landlord and tenant situation, I suspect the further permission to appeal proceedings might be resolved quite rapidly…