Hackney v Side By Side (Kids) Ltd.

Housing Act 1980, section 89 applies to possession orders made by either the High Court or a county court, including consent orders. Possession cannot ordinarily be postponed beyond 14 days, and in any event beyond six weeks, unless exceptional hardship is established. A transfer of enforcement proceedings to the High Court does not remove that restriction. Where a consent order makes delivery of possession independent of compliance with ancillary obligations, breach of those obligations does not ordinarily create a condition precedent, waiver or estoppel preventing enforcement. A stay inconsistent with the agreement should not be granted absent exceptional circumstances.

The claimant sought possession of a nursery site occupied by the defendant charity. The parties had agreed terms requiring the defendant to give up possession in return for alternative premises, works and a contribution to relocation costs. Those terms were incorporated into a consent order of the Central London County Court.

The defendant remained in occupation, alleging that the claimant had failed to complete works at the alternative site. A Deputy Master granted a stay of execution of the possession order. The claimant applied to set that order aside. The issues were whether section 89 of the Housing Act 1980 applied to High Court enforcement and consent orders, and whether the agreement justified resisting possession.

1. Application allowed. The Deputy Master’s stay was set aside, subject to a consensual stay until 18 July 2003. The defendant’s further application was withdrawn.
2. Section 89 of the Housing Act 1980 applies to possession orders made by the High Court as well as those made by a county court. Its wording refers to possession of “any land” and contains no restriction to county court orders. The structure of Part IV and sections 86 to 89 supports that construction.
3. The court declined to follow Bain v Church Commissioners for England [1989] 1 WLR 24, in which section 89 had been confined to county court orders. Although bound by that decision unless it was clearly wrong, the judge concluded that it was clearly wrong.
4. Section 89 also applies to consent orders. Its general wording did not justify implying an exception for consensual possession orders. Accordingly, even exceptional hardship could not authorise postponement beyond six weeks from the county court order. Enforcement proceedings had been transferred to the High Court in accordance with section 42 of the County Courts Act 1984 and CCR Order 25, rule 13(1), but the transfer did not affect section 89’s application.
5. The consent order made the defendant’s obligation to give up possession independent of disputes about the claimant’s works. The cost ceiling for those works reinforced that construction. The alleged breaches therefore did not establish a condition precedent, waiver or estoppel. In any event, no representation capable of founding waiver or estoppel was alleged.
6. Where the parties have agreed that compliance with ancillary terms will not affect the possession date, the court should not grant an inconsistent stay in the absence of exceptional circumstances. Costs were summarily assessed at £10,000 against the defendant.

The judgment determined an application to set aside an order made by Deputy Master Partridge. The underlying possession order had been made by the Central London County Court and enforcement proceedings were transferred to the High Court.