Hussain v Lancaster City Council
| Jurisdiction | England & Wales |
| Judge | HIRST L.J.,Lord Justice Thorpe,LORD JUSTICE HUTCHISON |
| Judgment Date | 14 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0514-7 |
| Docket Number | Case No.97/1454 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1998 |
[1998] EWCA Civ J0514-7
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Deputy Judge Mr. H. Wolton QC
Royal Courts of Justice
Strand
London WC2A 21L
Lord Justice Hirst
Lord Justice Hutchison
and
Lord Justice Thorpe
Case No.97/1454
MR. R. JACKSON QC and MISS N. JOFFE (instructed by Reynolds Porter Chamberlain) appeared on behalf of the Appellant.
MR. D. BRENNAN and MR. D. WATKINSON (instructed by Bindman & Partners, London, WC1) appeared on behalf of the Respondents.
Introduction
This case raises issues of some considerable general importance as to whether a local authority can be held liable in nuisance or negligence because it fails to prevent secured tenants and/or members of their households from committing criminal acts of harassment against nearby property owners.
The plaintiffs Malazam Hussain and Linda Livingstone are joint owners of a shop and residential property at No.147 Ryelands Road, Lancaster, which is situated on a housing estate known as the Ryelands estate which is owned by the defendants Lancaster City Council. By their amended statement of claim the plaintiffs allege that the Council have acted negligently and have cause or permitted nuisance to the plaintiffs as follows:—
(1) The Plaintiffs have suffered severe harassment including racial harassment substantially from persons who are tenants of the Defendant on the estate or who are living with such tenants. The harassment comes from a number of identifiable people both men including teenagers and boys and women. At the level of intimidation it takes the form of shouting threats and racist abuse from outside the shop or hanging around outside, drinking and glaring at the occupants. A group of men have deliberately played football outside the shop kicking the ball against the door and windows causing the glass to shatter inside while customers including children were there. Stones and bricks have been thrown at the shop and garage. On 4/11/91 there was an attempt to burn them out by putting a lighted mattress against the shop door. While they were away over Christmas 1991/2, their garage door was broken in, the security shutters on the shop windows broken and ripped down and their bedroom windows smashed. Two individuals in particular frequently come into the shop, drunk, are threatening and abusive. In January 1993 the garage door was again broken. In September 1995, half a tree was put in the shop doorway. On 11/11/95 the roof and wall were set alight with a petrol bomb. On 5/11/96 the shop was attacked with petrol bombs and on 10/11/96 a mattress was put up against the shop door and other combustibles against the rest of the shop front and the mattress was set alight. Delivery men have been harassed, their stock stolen and demands for protection money made. Police have been called on numerous occasions but the perpetrators usually leave before they arrive and return after. Some including Craig Callaghan, Trudi Weighell, Peter Bull, Diane Noon, and Mark Patterson have been prosecuted for breach of the peace or criminal damage on various dates in 1994 and 1995 but only fines or bind-overs have been the result, (the Plaintiffs refer to pages 35, 37, 43 and 46 of Schedule 1 attached hereto) nor of course do the criminal courts have the power to remove them from the estate. On one occasion the 1st plaintiff Mr. Hussain himself was charged with assaulting a principal perpetrator and was subsequently acquitted.
For further details of the Incidents and the identities of the perpetrators and where they reside the Plaintiffs refer to Schedule 1 attached hereto.
Many of the above incidents have involved gatherings of numbers of the same person on common parts of the estate in particular outside the shop on the pavement or highway for the purpose of harassing, abusing or assaulting the Plaintiffs or damaging their property or such gatherings have led to such behaviour. It is averred gatherings for such a purpose or when such behaviour at gatherings occurs constitutes a trespass on property belonging to or within the power of the Defendant as highway authority.
(2) The Defendant has been fully aware of the suffering inflicted on the Plaintiffs from 1991 onwards by constant contact with both officers and Councillors and by reports in the local press and radio and television. The officers were Mr. Hanna, Principal Housing Officer, David Watmore, Assistant Area Housing Manager, Andrew Leigh, Ian Lockley, Tracey Adams (successive Area Managers) and Neil Emery, Estate Manager. There have also been six meetings attended variously by the 1st Plaintiff and Councillors, Council officers, police, community workers and some tenants since October 1994
(3) The Defendant has taken no possession proceedings or effective action against the perpetrators despite a letter of 3/5/95 stating that "clearly where the Council has evidence of breach of the tenancy agreement the Council will act and this could ultimately lead to possession proceedings being taken against the tenants who are perpetrating the harassment and nuisance" and despite a 3 month "special patrol" in about January to April 1993 having proved ineffective (although Notices of Intention to seek Possession Proceedings have been served in late 1995 and one perpetrator one Craig Wareing has been the subject of injunction proceedings in the autumn of 1996, which has not prevented him from continuing to harass the Plaintiffs).
It goes without saying that the maltreatment to which the plaintiffs contend they have been subjected (and which we must assume for present purposes is accurately portrayed since this is a striking out application) is atrocious by any standard, as of course the Council freely acknowledge though they make it clear that many of the allegations which assert inadequate response on their part will be strongly contested if the case goes to trial.
In support of their case the plaintiffs rely on a clause in the Council's standard form of tenancy agreement which provides that the tenant is:—
"… to make sure that you, the people who live with you and your visitors:
show proper consideration towards other residents in the area;
do not do anything which may cause discomfort, annoyance, or nuisance from noise, unreasonable or anti social behaviour;
do not discriminate against or harass any residents or visitors."
They also rely on the Council's equal opportunities policy which states:—
"… [the Council] views any form of racial harassment as a serious offence and we will take action against anyone who harasses others."
They also rely on Schedule 2 ground 2 of the Housing Act 1985 and section 84 which provide that:—a court may order possession in respect of a secure tenancy if it considers it reasonable to do so, and "the tenant or a person residing in the dwelling house has been guilty of conduct which is a nuisance or annoyance to neighbours".
The amended statement of claim proceeds by alleging the following failures on the Council's part:—
"Has failed to cause the nuisance and acts of violence towards the Plaintiffs to cease.
Has failed to institute and pursue possession proceedings and/or appropriate injunction proceedings or take any or any effective steps against the perpetrators of the nuisance and acts of violence.
Has failed as set out above despite ample information being available from the Plaintiffs, the police and from its own officers or agents that would enable it to do so."
The pleading concludes with a claim for damages including aggravated damages, and for an injunction requiring the Council to cause or take reasonable steps (which are then spelt out) to cause the nuisance to the plaintiffs to cease.
There follows a schedule covering over 150 pages which lists several hundred alleged incidents between June 1991 and April 1997 involving no less than 106 alleged culprits.
On 15 July 1997 Master Rose ordered that the statement of claim be struck out and the action dismissed on the ground that it disclosed no reasonable cause of action.
This order was reversed on 2 October 1997 by Mr. Harry Wolton QC sitting as a deputy judge in the Queen's Bench Division, and it is against this latter order that the Council presently appeals.
The Ryelands estate was originally laid out by the Council, and comprises about 500 residents, the majority of whom are still secure tenants of the Council, though some occupants have purchased their houses under the right to buy legislation. The plaintiffs own the freehold of their shop and residential property at No. 147 Ryelands Road.
The Lancashire County Council are the highway authority in Lancaster, but by an agency agreement dated 24 November 1993 it was agreed that the Lancaster City Council should exercise on behalf of the County Council a number of their highway responsibilities and it was provided that in exercising such functions the Lancaster City Council would:—
"Within the limits of any restriction whether financial or otherwise imposed by the County Council take such precautions for the protection of the public and private interests as would be incumbent upon them if the District Council were the principal authority and subject thereto the County Council shall indemnify the District Council against all claims for damages and compensation arising out of the exercise of the said functions which may be brought against the District Council."
The agreement also provided that the Lancaster City Council were empowered to exercise all the powers in part IX of the Highways Act 1980, including section 130(1) and (2)...
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