Swindon Borough Council (formerly Thamesdown Borough Council) v Aston
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pumfrey,Lord Justice Jonathan Parker,Lord Justice Schiemann |
| Judgment Date | 19 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1850 |
| Date | 19 December 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2002/0578–9 |
[2002] EWCA Civ 1850
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWINDON COUNTY COURT
(Miss Recorder Ralphs and HHJ Wade)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Jonathan Parker and
Mr Justice Pumfrey
Case No: B2/2002/0578–9
William Okoya (instructed by Stephen Taylor (Borough Solicitor)) for the Respondent
Robert Latham (instructed by Wood Awdry & Ford) for the Appellant
Introduction
This is an appeal from the judgment of Miss Recorder Ralphs delivered on 25 February 2002 refusing to rescind a possession order ('the 1991 order') made against the appellant ('Mr Aston') as long ago as 13 December 1991. The grounds of this application before the judge were that Mr Aston had complied with the terms of suspension of the 1991 order, albeit late, and had paid off all the sums due under the order.
There is a further application for permission to appeal against HHJ Wade's judgment of 23 November 2001 dismissing an appeal from DJ Simons who had on 22 June 2001 made a further possession order against the appellant pursuant to a Notice to Quit served by the respondent council. Peter Gibson LJ gave permission to appeal from the order of Miss Recorder Ralphs on paper, and left the question whether it was necessary to appeal against the order of HHJ Wade, and, if so, whether permission to do so should be granted, to the hearing of the appeal.
The facts
On 26 January 1987, Mr Aston went into occupation of 16 Odstock Road, Penhill, Swindon. He was a secure tenant of Thamesdown Borough Council ('Thamesdown'), the respondent's predecessor in title. On 13 December 1991, Thamesdown obtained the 1991 possession order against Mr Aston on the ground of unpaid arrears of rent (claim number 91 10430). The possession order was suspended on condition that Mr Aston paid the arrears by instalments of £2 per week in addition to the current rent. The terms of suspension were in standard form:
'It is ordered that the judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays to the plaintiff the arrears of rent … by instalments of £2–00 per week in addition to the current rent
And that the judgment for £43–00 costs…shall not be enforced for so long as the defendant punctually pays the costs by instalments of £2–00 per week
And also that the judgment shall cease to be enforceable when the (arrears of rent, … and) costs referred to above are satisfied'
By 27 January 1991, the arrears had increased to £454.15, and his rent statement shows that Mr Aston, who was in receipt of housing benefit for most of the period until 1995, tended to pay irregular round sums towards his rent. Thamesdown sought a warrant of possession in August 1992, but in September 1992 it formed the view (wrongly) that Mr Aston had complied with the conditions of suspension, and withdrew its application, telling the court in correspondence that matters between it and Mr Aston would continue to be governed by the 1991 order.
In January 1994, Thamesdown obtained a further warrant to evict Mr Aston, but agreed with him to suspend the warrant (which was executable on 25 January 1994) on terms that Mr Aston paid his current rent plus £2.20 per week, and the warrant was suspended by order of 14 January 1994. By this time, Mr Aston had made the first of a number of applications to revoke the possession order, which was dismissed on 18 February 1994. Mr Aston made a similar application in January 1995, on the basis that the arrears of rent had accrued by reason of Thamesdown's maladministration of the Housing Benefit system. This application was also dismissed on 8 March 1995. In 1995, there were further breaches of the terms of the suspended possession order and of the suspended warrant, but on 8 January 1996 Mr Aston paid off all his arrears of rent, his rent account going into credit. This was in consequence of a one-off substantial payment of Housing Benefit, suggesting that Mr Aston had not received his full entitlement over some period. The payment was of £273 odd, and Mr Aston had last owed that amount to the respondent about one year previously. He seems also by that time to have paid the arrears of costs.
In 1997 Thamesdown ceased to exist, and the respondent, a unitary authority, took over its functions. Mr Aston was at this time provided with a 'Swindon' tenancy agreement, in accordance with the terms of which his rent was increased.
So far as the evidence before us is concerned, there was no further trouble concerning Mr Aston until 1998, when his neighbours complained to the council about the state of his garden. From January 1996 until this date, Mr Aston had frequently been in arrears of rent, but had paid off all arrears on at least five occasions. The rent had increased from £39.31 in 1996 to £40.93 in June 1998, and the increases had been demanded and sooner or later paid.
Mr Brotheridge, a housing assistant employed by the respondent, had already suggested to Mr Aston that he should do something about the mess in his garden, but Mr Aston did nothing. Particular complaint was made of the presence of household appliances, including washing machines, in the garden together with two cars. Mr Aston claimed to have a washing machine repairing business, and the respondent told him that to conduct the business from home he needed the permission of the Acting Chief Housing Officer and also needed planning consent. To park cars on his hard standing, he would need to have a dropped kerb installed, and the respondent also offered him the use of another off-site garage for storage purposes. The respondent was not satisfied with Mr Aston's failure to put matters in order, and on 12 April 2000 he was given a final warning:
'Further to [our letter of 1.11.99] it has been noted that there has been a moderate improvement but your garden is still in an unacceptable condition. Neighbours also claim that the garden probably harbour[s] mice which are causing a nuisance. The rotting car, piles of rubbish and appliances must be removed. You have made assurances to Dave Brotheridge regarding a skip and your proposed aim to clear. The time for promises must come to an end and the clearance must take place. The situation cannot continue.
You are therefore advised that you must make immediate arrangements to clear out your garden. Your are clearly in breach of your tenancy agreement 1d which states "The tenant must keep the garden in a reasonable and tidy condition." You must also refrain from persistently parking on the verge, which is in breach of tenancy condition 1kii.
Your response will be closely monitored and you will need to take urgent action to avoid legal action against your tenancy.'
After this letter, the respondent must have considered the history of Mr Aston's tenancy, and on 1 November 2000 he was given a simple Notice to Quit, and also a 'without prejudice' Notice of Seeking Possession pursuant to section 83 of the Housing Act 1985. The former would be appropriate if Mr Aston were not a secure tenant entitled to the protection of sections 82–85 of the Housing Act 1985. The latter is, of course, a prerequisite to proceedings to bring a secure tenancy to an end. The particulars of claim in the action for possession (SN 005455), which were dated 21 December 2001, alleged that Mr Aston had ceased to be a secure tenant by virtue of his non-compliance with the 1991 order, and also upon Grounds 1 and 2 of Schedule 2 to the Housing Act 1985, in respect of which the court may order possession if it considers it reasonable (section 84(2)(a) of the Act). By his defence, Mr Aston contends that the 1991 order was no longer enforceable, and denies the breaches alleged. Directions were given on 12 February 2001 for a preliminary issue whether there was a subsisting tenancy at the date of the notice to quit.
At the trial of the preliminary issue, District Judge Simons concluded that the tenancy determined on the breach of the conditions attached to the 1991 order, and that thereafter the applicant remained in the property as a 'tolerated trespasser'. Nothing done by the respondent created a new tenancy or revived the previous tenancy. Mr Aston appealed this decision and the appeal was heard by HHJ Wade on 23 November 2002, when it was dismissed. Mr Aston also sought to apply to set the 1991 order aside at this hearing, having also made an application on 7August to set the 1991 order aside and for the tenancy to be reinstated. Finally on 20 December 2001, Mr Aston applied to rescind the 1991 order pursuant to section 85(4) of the Housing Act 1985. The application to rescind was heard by Miss Recorder Ralphs who dismissed it.
Miss Recorder Ralphs' order sets out four 'findings' as follows:
'a. That the application under section 85(4) of the Housing Act 1985 must fail and be dismissed;
b. That the order of 13 December 1991 is unenforceable;
c. That had the application of the 7 August 2001 in proceedings number SN005455 been listed before District Judge Simons he would pursuant to a proper exercise of his duty under Article 8 [sc. of the European Convention on Human Rights] have had to determine the factual issues in relation to nuisance in order to decide whether or not the making of a possession order was necessary and proportionate;
d. Those issues not having been raised need to be remitted to the District Judge for the determination of the issues and whether it is necessary and...
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