London Borough of Ealing v Jama

In a secure-tenancy possession claim, reasonableness is primarily for the trial judge, whose decision resembles an exercise of judicial discretion. The Court of Appeal will interfere only for an error of law, failure to consider a relevant matter, or consideration of an irrelevant matter. Persistent household noise may amount to nuisance and breach of tenancy when it goes beyond ordinary domestic usage, even if it occurs outside traditional anti-social hours. Gross overcrowding and the prospect of future rehousing are relevant matters, but an unspecified future solution cannot outweigh the effects of nuisance that Housing Act 1985, section 85A requires the court to consider. An outright possession order may be upheld where the breaches are serious and persistent and a suspended order would provide inadequate protection.

The London Borough of Ealing sought possession of a secure tenancy held by Jama. The claim alleged persistent excessive noise, repeated flooding into the flat below, rubbish disposal and urination in a communal lift. The county court found breaches of the tenancy agreement, principally through serious and persistent noise and flooding, and ordered outright possession, subject to a stay pending appeal.

Jama appealed. She argued that the noise was ordinary domestic noise from a grossly overcrowded family home, that the flooding findings were insufficient, and that possession should not be ordered or should be suspended pending rehousing. The central issues were whether the factual findings supported breach and whether an outright possession order was reasonable.

1. Appeal dismissed. The county court’s order for possession was upheld.
2. The noise findings provided a sufficient basis for breach. The trial judge was entitled to accept the neighbour’s evidence and find extensive, persistent noise, including jumping, running, scraping, banging and hammering, which went beyond ordinary domestic usage and was serious and persistent. The fact that it occurred mainly during the day and outside the stated anti-social hours did not prevent it from amounting to nuisance or breach.
3. The flooding findings were also sufficient. The judge accepted the neighbour’s evidence and the plumber’s evidence that the bathroom floor was soaking without a plumbing defect. It was open to him to infer that water escaping during use of the bathroom caused the flooding, which constituted nuisance and breach.
4. Whether possession is reasonable is substantially a matter for the trial judge, analogous to a judicial discretion. Appellate intervention is justified only for an error of law, failure to take account of a relevant matter, or reliance on an irrelevant matter: Wandsworth LBC v Hargreaves [1994] 25 HLR 639. The judge had considered the overcrowding and the statutory factors.
5. Under section 85A of the Housing Act 1985, the effects and likely continuation or repetition of nuisance were important. The possibility of rehousing at an unspecified future date could not outweigh those matters. The fact that the breaches were not deliberate did not displace the conclusion that possession was reasonable.
6. The judge was entitled to make an outright order. A suspended order would have been inadequate where the claimant was likely to return to court within weeks and realistic conditions could not protect against the persistent noise. The contrast with London Borough of Brent v Doughan [2007] EWCA Civ 135 did not assist Jama because the noise there had not been found to be greatly beyond what might ordinarily be expected.

• Court of Appeal (Civil Division): Appeal from Brentford County Court dismissed. The court upheld the outright possession order made by His Honour Judge Marcus Edwards.
• Brentford County Court: Following trial on 12 and 13 December 2007, judgment was given for the London Borough of Ealing. Possession was ordered by 10 January 2008, with a stay pending appeal.