Norwich City Council v Famuyiwa

In secure-tenancy possession proceedings under the Housing Act 1985, the court must keep in mind the statutory powers to postpone or suspend possession and impose conditions when deciding whether an order is reasonable. It must not reject those possibilities as futile without examining workable terms, including postponement pending a further application after continuing breach. If the first-instance discretion is flawed by that omission, the appellate court may and must exercise its own discretion. Persistent nuisance, annoyance or harassment may justify possession, but the statutory balance can be pursued through a postponed order with conditions. An injunction is not an adequate substitute merely because contempt proceedings require proof to a higher standard.

Norwich City Council sought possession of a secure tenancy under grounds 1 and 2 in Schedule 2 to the Housing Act 1985, alleging persistent nuisance, annoyance and harassment. The County Court found the grounds established but dismissed the claim under section 84(2)(a), concluding that a suspended possession order would be ineffective and that outright possession would be unreasonable. It granted an injunction restraining similar conduct. The Council appealed, challenging the approach to the interaction between sections 84 and 85 and the use of an injunction as an alternative remedy.

1. Appeal allowed. Lord Justice Chadwick held that the County Court had found persistent breaches of the tenancy covenant, but had erred in principle when exercising its discretion under section 84(2)(a) of the Housing Act 1985.
2. The statutory scheme involves distinct stages. The court must determine whether a possession ground is made out, whether possession is reasonable, and, if so, whether possession should be postponed or execution stayed or suspended on conditions. The availability of those powers is relevant when assessing reasonableness. Section 85(4) also permits discharge or rescission if conditions are complied with. This approach was consistent with West Kent Housing Association Limited v Davies (1998) 31 H.L.R 415 and Rauechle v Laimond Properties Ltd (2001) 33 H.L.R 10.
3. The judge had ruled out a postponed or suspended order without considering the possible date of possession or the conditions that could be imposed. The court could, for example, postpone possession until a further application following continuing breach. The judge therefore failed to take a relevant matter into account. The Court of Appeal was entitled and obliged to exercise its own discretion, applying the approach in West Kent Housing Association Limited v Davies (1998) 31 H.L.R 415, Rauechle v Laimond Properties Ltd (2001) 33 H.L.R 10 and Canterbury City Council v Lowe (2001) 33 H.L.R 53.
4. On the evidence, the persistent abusive, confrontational and aggressive conduct constituted a serious and continuing breach. The legitimate interests of the Council and neighbouring tenants required an effective judicial remedy. An injunction was not the appropriate response because alleged breaches could lead to committal proceedings and imprisonment. The Council was required to prove breach to the civil standard, although the serious consequences of possession required cogent evidence.
5. The Court made a possession order under section 84(2)(a), postponed possession and remitted the question of appropriate terms under section 85(3) to the County Court. Lord Justice Jacob agreed and added that a suspended order would suspend, rather than permanently remove, the tenant’s right to buy; if she complied with the conditions, the order could later be discharged or rescinded under section 85(4). Costs were awarded to the Council in both courts, subject to the stated set-off direction.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 1770, the appeal was allowed. A possession order was made, possession was postponed, and the question of terms was remitted to the County Court.
2. Norwich County Court: Mr Recorder Gordon QC found the possession grounds established but dismissed the possession claim as unreasonable under section 84(2)(a) of the Housing Act 1985. He granted an injunction restraining specified anti-social conduct.