Curo Places Ltd v Walker

On an appeal against a discretionary possession decision, the appellate court should interfere only for an error of principle, consideration of an irrelevant matter, failure to consider a relevant matter, or a decision plainly outside the generous ambit of reasonable disagreement.

A criminal conviction is admissible and, under section 11(2) of the Civil Evidence Act 1968, establishes commission of the offence unless the contrary is proved. It does not, however, compel the making of a possession order. In assessing reasonableness, the court may distinguish actual nuisance or breaches from disturbances caused by ordinary household activity, poor sound insulation and mistaken perceptions. The court must address the statutory factors in section 9A of the Housing Act 1988.

Curo Places Ltd appealed against the dismissal of its possession claim concerning a six-year fixed-term assured tenancy. The claim relied on grounds 12 and 14 of Schedule 2 to the Housing Act 1988, alleging breach of tenancy obligations and nuisance or annoyance.

The county court found that some grounds were made out, but declined to order possession after considering the tenant’s mental health, poor sound insulation, ordinary household noise, the effect on neighbours and the likelihood of future disturbance. It also upheld a defence under section 15 of the Equality Act 2010. The landlord challenged the treatment of a criminal conviction, the section 9A assessment, the relevance of sound insulation and alternative measures, and the proportionality assessment.

1. Appeal dismissed. The judge had found that the statutory grounds were made out, but had then separately and lawfully assessed whether possession was reasonable.

2. The appellate restraint applicable to a reasonableness assessment was stated by reference to Manchester CC v Higgins [2005] EWCA 1423, [2006] 1 All ER 841. Intervention requires an error of principle, reliance on an irrelevant matter, failure to consider a relevant matter, or a decision plainly outside the generous ambit of reasonable disagreement.

3. Under sections 11(1) and 11(2) of the Civil Evidence Act 1968, the conviction was admissible and the tenant was to be taken to have committed the offence unless the contrary was proved. But the conviction did not bind the judge to make a possession order. The judge was entitled to assess the wider evidence, particularly because the precise incidents underlying the conviction were unclear and the allegations before him were wider. The point was consistent with North Devon Homes v Batchelor [2008] EWCA Civ 840.

4. The judge had substantively addressed section 9A of the Housing Act 1988, including the past effect of the conduct, its likely continuing effect and the consequences of repetition. The prediction that disturbances would continue did not amount to a finding that future breaches of the tenancy would necessarily continue. Much of the anticipated disturbance arose from ordinary household noise, poor sound insulation and the neighbour’s mistaken belief that conduct was directed at him.

5. The public interest in fair and effective enforcement of necessary and reasonable conditions in public housing, identified in Sheffield City Council v Jepson (1993) 25 HLR 299 and repeated in Newcastle City Council v Morrison (2000) 32 HLR 891, did not require possession here. The judge was entitled to consider sound insulation and possible moves as part of the overall reasonableness assessment. He did not find a breach of building regulations or impose a duty to alter the building.

6. It was unnecessary to determine the Equality Act ground of appeal because the dismissal of the first four grounds left the refusal of possession standing. The pleading objection was unmeritorious, but the interaction between possession claims and the Equality Act 2010 was not decided.

• High Court (Queen’s Bench Division): appeal from the order of HHJ Matthews made on 7 March 2017 in the County Court at Bristol. Appeal dismissed.