London Borough of Brent v Doughan

Whether it is reasonable to order possession for a secure tenant’s nuisance or annoyance requires a judicial balance under sections 84 and 85A of the Housing Act 1985. The court must consider the effect on others and the likelihood of repetition. An appellate court should be slow to disturb that fact-sensitive assessment.

A suspended possession order is available only after the court has decided that making a possession order is reasonable. Suspension cannot be used to avoid that prior statutory question. In committal proceedings, conduct may be established on the balance of probabilities yet remain unproved to the criminal standard.

The local authority sought possession of a secure tenant’s flat following complaints of noise and nuisance. It also sought his committal for alleged breaches of injunctions restraining conduct capable of causing nuisance or annoyance near specified residential premises.

The county court found two incidents of noise proved on the balance of probabilities, but not to the criminal standard required for committal. Having considered the limited number of incidents, the poor sound insulation, the neighbours’ respective vulnerabilities and the tenant’s conduct over the preceding 18 months, it held that possession was not reasonable. It also held that an incident at an underground station fell outside the territorial scope of the relevant injunction.

The authority appealed against the refusal of possession and sought permission to appeal against the refusal of committal.

1. Disposition. The appeal against the refusal of possession was dismissed. The renewed applications for permission to appeal against the refusal of the two committal applications were refused.

2. Reasonableness under section 84(2)(a) of the Housing Act 1985 involves an intrinsically balanced judicial assessment resembling the exercise of a discretion. The county court had considered the disturbance and distress caused to the neighbour, the risk of repetition, the limited number of incidents, the tenant’s awareness of the injunction and the wider circumstances. Its conclusion that possession was not reasonable was tenable and not amenable to appellate interference.

3. Section 85A required consideration of the effect of the nuisance or annoyance on others and its likely continuation or repetition. The county court plainly appreciated the effect upon the neighbour. Its finding that the tenant had been mindful of the order, read with the rarity of incidents over 18 months, showed that it had implicitly assessed the risk of repetition and was entitled to regard that risk as insufficient to justify possession.

4. A suspended possession order could not be made as a compromise where the statutory threshold for possession had not been crossed. The court first had to decide whether making a possession order was reasonable. If it was not, suspension could not be used to avoid that conclusion.

5. The facts were materially different from Manchester City Council v Higgins [2005] EWCA Civ 1423, where the nuisance was exceptionally serious and an immediate possession order was substituted for a suspended order. The county court was entitled to find that the noise here was not greatly beyond that expected between neighbours in that type of property.

6. The injunction concerning nuisance or annoyance to persons residing at, visiting or undertaking lawful activity at specified addresses was properly confined to those addresses and their close proximity. Conduct at an underground station did not breach it.

7. It was rational to find nuisance proved on the civil standard while finding it unproved to the criminal standard required for committal. The evidence did not compel the same conclusion under both standards.

1. Court of Appeal (Civil Division): The appeal against the refusal of possession was dismissed, and permission to appeal against the refusal of the committal applications was refused: [2007] EWCA Civ 135.

2. Willesden County Court: Her Honour Judge Bevington dismissed the local authority’s possession claim and both committal applications, and ordered it to pay the tenant’s costs.