Brent London Borough Council v Doughan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE LONGMORE,Lord Justice May,LADY JUSTICE SMITH |
| Judgment Date | 06 February 2007 |
| Neutral Citation | [2007] EWCA Civ 135 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2007 |
| Docket Number | 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)
Royal Courts of Justice
Strand
London, WC2
Lord Justice May
Lord Justice Longmore
Lady Justice Smith
B2/2006/1544
MS S DAVIES (instructed by Mr J Ghedia) appeared on behalf of the Appellant.
MS K BRETHERTON (instructed by Brent Community Law Centre) appeared on behalf of the Respondent.
There 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.
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.
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.
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.
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.
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.
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...
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