The London Borough of Ealing v Jama
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tuckey,Lord Justice Jacob,Lord Justice Longmore,Sir Peter Gibson,Lord Justice May |
| Judgment Date | 25 June 2008 |
| Neutral Citation | [2008] EWCA Civ 896,[2008] EWCA Civ 555 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2008/0104 |
| Date | 25 June 2008 |
[2008] EWCA Civ 555
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tuckey and
Lord Justice Jacob
Case No: B5/2008/0104
Mr A Lane (instructed by Southall Rights) appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
This is a renewed application by the defendant tenant, Khadra Hasram Osram Jama, for permission to appeal from an order for possession made against her by Judge Marcus Edwards in the Brentford County Court.
The defendant had been the claimant council's secure tenant of a two bedroomed flat in a seven-storey block of flats in Newmarket Avenue in Northolt since 1994. When she first went there she had one child. She now has six children aged 13 and under and her husband has moved in with her as well. They have all been living in this two bedroomed flat. It is, as the judge said, grossly overcrowded.
The applicant has applied to the council for more suitable accommodation —so far, unsuccessfully. Possession was claimed on the ground of antisocial behaviour. At the end of a two-day trial, the judge found that the applicant was in breach of her tenancy agreement “by reason of persistent acts of antisocial behaviour relating to noise and flooding of the property below”. There were other complaints as well, but those two complaints of noise and flooding were the principle ones. It was, the judge said, reasonable to make an outright order for possession because of the very serious effect of the noise and flooding on the tenant in the flat below. The antisocial behaviour continued despite warnings from the council.
Mummery LJ refused permission to appeal on the papers on the basis that the attack on the judge's decision amounted to saying that his conclusion that it was reasonable to make the order was perverse. Mr Lane, who has appeared for the applicant throughout, disagrees in his permission statement. He points out that although perversity is one of his grounds, his real attack centres upon the fact that the noise was no more than one could expect from such an overcrowded flat. It was not deliberate, it did not occur at antisocial hours and the tenant in the flat below had accepted at the trial that it was caused by “normal household activity”. The flooding had not been frequent and it was not clear upon what basis the applicant was held to be responsible for it. All in all, Mr Lane submitted that the complaints arose out of the applicant and her family's ordinary use of the premises and therefore it was unreasonable to make the order itself or the judge should not have made it outright.
As Mummery LJ said, this is a sad case. All I need say is that I am persuaded by Mr Lane's arguments to grant permission to appeal. However, the challenge to the judge's decision is not easy and the applicant should not be unduly optimistic about the outcome of her appeal. I would not limit the permission which I would grant.
I agree. I only hope this problem can be solved by a more sensible solution —to wit, the local authority finding, in some way or another, more suitable accommodation for this large family.
Order: Application granted
[2008] EWCA Civ 896
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Longmore and
Sir Peter Gibson
Case No: B5/2008/0104
Mr A Lane (instructed by Southall Rights) appeared on behalf of the Appellant.
Ms B Zeitler (instructed by London Borough of Ealing Legal Service) appeared on behalf of the Respondent.
The appeal in this case arises from the claimant making a claim for possession of a flat known as 36 Hill Court, Newmarket Avenue, Northolt in Middlesex (“the flat”). The flat is a two-bedroom flat within a block of flats, having seven floors and containing 41 flats overall. The property is located immediately above number 31 and directly below number 4The defendant has held the flat under a secure tenancy agreement with the claimant landlord since 19 December 1994. She pays weekly rent of £88.60. At the time that she obtained the tenancy, the flat was adequate for her housing needs as she only had one child. She now resides in this two-bedroom property with five other children. The ages of the children at the date of the trial were 13, 12, 11, nine, six and three. Moreover, her husband has now come to live with her. In total there are eight occupants living in this two-bedroom flat and it is thus grossly overcrowded. It is nothing less than inadequate housing for a family of this size. The tenancy agreement contains standard clauses.
The terms relevant for the purposes of the claimant's action were as follows:
“5.1.3 You are responsible for your actions and for those of anyone living in or visiting the property and you must ensure that this tenancy agreement is not breached.
5.1.4.1 You are responsible for the behaviour of anyone who lives at or visits the property. The landlord will treat any breach of this agreement by others as your breach. You, your household and your visitors must not cause a nuisance or disturbance to any person or commit any acts of harassment to any person within the property, common parts or locality.
5.1.4.2 Harassment includes…
(f) Making unnecessary or excessive noise.”
The claimant's case centred on the defendant breaching the above-mentioned terms in that she was responsible for committing or engaging in persistent acts of anti-social behaviour which included:
(i) Noise, nuisance and disturbance by way of repeated jumping on wooden floors and bedsteads, causing vibration, running, scraping, banging and hammering between 21 April 2005 and 24 March 2007. All in all, about 225 incidents were alleged;
(ii) Causing flooding from the property to number 31 on about ten occasions between 2002 and 2007;
(iii) Inappropriate disposal of rubbish from a balcony of the tower block on two specified dates in 2005; and
(iv) Two occasions of urination in the communal lift on two dates in June 2006.
Proceedings were issued in April 2007, following the service of a notice seeking possession which was served on the defendant on 21 December 2006. HHJ Marcus Edwards, sitting in the county court at Brentford, conducted the trial which was heard on 12 and 13 December 2007, with judgment being given on the latter date for the claimant.
The law on this matter is well known. By section 84 of the Housing Act 1985 the court can only make an order on grounds set out in schedule two of the Act. Those grounds include the breaking of an obligation in the tenancy agreement and conduct causing nuisance or annoyance to, among others, other residents in the building. The court, moreover, may not make an order for possession on those grounds unless it considers it reasonable to do so. Section 85A then provides that the court must in particular consider in relation to any nuisance or annoyance: (a) the effect that the nuisance or annoyance has had on other persons; (b) any continuing effect it is likely to have on such persons; and (c) the effect of the nuisance or annoyance if repeated. The judge had all those provisions well in mind and held that the defendant was in breach of the terms of the tenancy agreement and had to give possession of the property on or before 10 January 2008, but there should be a stay pending any appeal, as there has been.
The judge said that he approached the case by looking for corroborative evidence. He also looked for the possibility of tenants ganging up against a particular tenant by, for example, bullying, racism or creating an unfair “axis” of other tenants against the defendant, trying to get the tenant out. He found that the defendant had suffered some harassment at the hands of...
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