England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(Mr Recorder McLaren)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Friday 26th July 2002

Lord Justice Ward :

1. Nottingham City Council sought an injunction and bring this appeal for the very laudable purpose of endeavouring to provide protection to those in their housing office from the anti-social behaviour of an applicant for local authority housing. They made their application under section 152 of the Housing Act 1996. It was refused by Mr Recorder McLaren Q.C. on 12^th October 2001. They appeal with the permission of Potter L.J. which was granted with hesitation because he considered success most unlikely, but "it is a point of some general importance which needs to be put to rest". Given the possible importance of the problem, Mr Nardell appeared to assist us and we are grateful to him for his help.
2. The local authority's case was this. The defendant Mr Clifton Thames entered the Strelley District Housing Office at about 2.30 p.m. on Tuesday, 2^nd October 2001 He approached the counter and gallantly proffered some plastic flowers to the young lady behind the counter. He was the worse for drink. He explained, at times a little incoherently, that he occupied temporary accommodation in Strelley owned by a registered social landlord (so he was not then a tenant or occupier of council accommodation) but that he was soon to become homeless and wanted a house there and then. The ladies endeavoured to explain they had no houses available that day. He became abusive, his swearing punctuated by the waving of the bottle of cider he was carrying. When a mother with a young baby came in to pay her rent, he endeavoured to grab the baby's bottle and caused the mother much alarm. He demanded to have the refusal of housing put on paper and the housing officer obligingly handed him a note which told him, "We have no houses, sorry". He looked at it and said, "They wonder why I commit crimes. Why don't they just give me a house because I'm sick of killing." Then looking at the lady behind the counter he added, "I could kill you. I've killed many in the past". He pointed his arm at her making a gun shape and saying, "Kill, kill, kill". He then resumed shouting more familiar obscenities and vulgar abuse. Eventually a more senior officer succeeded in ushering him outside and asking him not to come back until he had calmed down. After some minutes he removed himself. For those in the office, both those who worked there and the members of the public who had proper occasion to visit the premises, for example to pay their rent, it was a very frightening occasion.
3. Incidents of this kind are apparently by no means unusual. Housing, or the lack of it, the losing of it and the difficulty in finding it all serves to arouse the passions of the disgruntled and those in housing departments have to deal with individuals with grievances real and imagined. These officials frequently bear the brunt of anti-social behaviour which ranges from discourtesy to foul abuse, from threats of to acts of violence and malicious damage to property. Local authorities wish to protect their staff and those visiting their offices and they wish to have an effective means of protection from the repetition of this disruptive behaviour. An injunction without a power of arrest is a comparatively toothless remedy as there is no immediately enforceable sanction.. What vulnerable employees in a housing office need is the ability instantly to call on the police to restrain and detain the troublemaker. This is why local authorities are keen to use section 152 of the Housing Act 1996 if they can.
4. Section 152 provides as follows:-

"(1) The High Court or a county court may, on an application by a local authority, grant an injunction prohibiting a person from –

(a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises,

(b) using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or

(c) entering residential premises to which this section applies or being found in the locality of any such premises.

(2) This section applies to residential premises of the following descriptions –

(a) dwelling houses held under secure or introductory tenancies from the local authority;

(b) accommodation provided by that authority under Part VII of this Act or Part III of the Housing Act 1985 (Homelessness).

(3) The court shall not grant an injunction under this section unless it is of the opinion that –

(a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection (1)(a), and

(b) there is a significant risk of harm to that person or a person of similar description if the injunction is not granted.

(4) An injunction under this section may –

(a) in the case of an injunction under subsection (1)(a) or (b), relate to particular acts or to conduct, or types of conduct, in general or to both, and

(b) in the case of an injunction under subsection (1)(c), relate to particular premises or a particular locality;

and may be made for a specified period or until varied or discharged.

…

(6) The court may attach a power of arrest to one or more of the provisions of an injunction which it intends to grant under this section …"

5. If I were coming fresh to section 152 my first impression would be that it is important to see it as a measure against anti-social behaviour that is intended to supplement the armoury of the local authority to control such misconduct by allowing the local authority to be the applicant for the injunction it provides. The defendant to that injunction is any person, not necessarily a council tenant. The group is wide. The prescribed form of injunction gives some clue to the purpose that the section must be intended to serve. The injunction restrains the respondent from causing nuisance and annoyance to another person under (1)(a), using residential premises for immoral or illegal purposes under (1)(b) or entering residential premises or being found in the locality of such premises under (1)(c). I note that the section applies to "dwelling houses" in the plural. That suggests to me that, although (certainly in some cases, as I discuss in paragraph 17 below), it may become necessary to focus on a some house with which the affected person has a connection, the use of the plural emphasises that many houses within the whole housing stock of the local authority fall inside the potential field of cover. The first step to cross the jurisdictional threshold is set by subsection (3)(a) which requires the respondent to have used or threatened violence against any person of the description mentioned in subsection (1)(a). The test is simple: first, has the respondent used or threatened violence and, secondly, is the victim within the description? The restraint on too wide a use of the remedy is the need to show as the second step under subsection (3)(b) to crossing the threshold that there is a significant risk of harm to that person in particular or a person of similar description in general. If those facts are established the court has a discretion whether or not to grant the injunction. That the test is not limited to the protection of an individual but extends to a class which needs the protection of the injunction reinforces my view that it is a remedy designed for the council for the good management of their housing estate rather than for the protection of a particular tenant of council accommodation. It fits with the reforming purpose of the Housing Act 1996 which, as Mr Ranjit Bhose on the Local Authority's behalf points out to us, contains new provisions for introductory tenancies and a period of probation, gives additional powers against existing secure tenants guilty of nuisance and annoyance and in this, Chapter 3, provides for "injunctions against anti-social behaviour".
6. The recorder held, however, that section 152 does not apply to the facts of this case. He was, however, prepared to grant a "common law injunction" but that had the disadvantage from the local authority's point of view that no power of arrest could be attached. His view of the ambit of section 152(1)(a) was this:-

"The second part of it, namely "in the locality of such premises" seems to me only to extend the ambit of the section to the extent that a person affected by the nuisance or annoyance must have an identifiable connection, as defined by the statute, with specific residential premises. That person need not necessarily be actually inside the premises, especially if "in" does not include curtilage. However, I would regard "in" as indicating the curtilage e.g. "in the garden". I prefer such a construction rather than the one contended for which would include anyone who just happens to be in the locality of numerous residential council properties and, at the same time, working in the Council Housing Department. The Housing Department Office is a separate property which just happens to be in the area or happens to be within a council estate. It does not have the required statutory nexus to residential premises. … It seems to me that [the section] should be limited so as to protect tenants or persons living in the same house as tenants, their visitors and any other person going about his lawful business in connection with a specific local authority house or houses."

7. He regarded himself bound by the decision of this court in Enfield London Borough Council v B and Another [2000] 1 WLR 2259.
8. That case, like this, concerned an unprovoked attack on employees of the local authority when a mother and her seventeen year old son attended the Social Services Department seeking housing accommodation for the son. The offices happened to be situated within a short distance of residential premises owned and let by the authority and so it sought to argue that the staff was engaged in lawful activity in the locality of these residential premises. The court upheld the County Court judge's view that he had no jurisdiction to grant an injunction and add a power of arrest under section 152.
9. Mr Ranjit Bhose who then, as here, appeared for the local authority submitted that the threshold condition contemplated three separate and distinct descriptions of persons namely, first a person who resides in residential premises to which the section applies or who resides in the locality of such premises, secondly a person who visits any residential premises or who visits the locality of such premises, and thirdly a person who otherwise engages in lawful activity in residential premises or who otherwise engages in lawful activity in the locality of such premises. For his part, it was clear to Waller L.J. that the subsection did not apply so as to protect persons simply residing in the locality of residential premises because that seemed to him to give no meaning to the word "in" where it appears immediately after the first word "residing" in section 152(1)(a). He said:-

"It seems to me to make no sense to contemplate a person residing "in… in the locality of such premises" which would seem to me to be the natural reading of those words if "residing" was to have anything to do with "locality of such premises". It furthermore seems to me that it is not a natural reading of the language to contemplate that somebody "visiting …in the locality of such premises" should be covered by the subsection. Mr Bhose's submissions (1) and (2), it will be noted, do not follow the language of the subsection excluding the word "in" when as a matter of language it is inconvenient to incorporate it."

10. So Waller L.J. held at p. 2263/4:-

"It seems to me that these last words of the subsection [visiting … in the locality of such premises] apply simply to a person who is otherwise engaging in lawful activity either in residential premises to which the section applies or in the locality of such premises. Once that is clear, it seems to me further that the section clearly has in mind, as the judge decided, that there should be a nexus between the residential premises and the person who is sought to be protected by the subsection. So it has in mind peculiarly persons such as the milkman, the gasman, the water board officials as obvious examples. As it seems to me the judge was clearly right that persons who are working in an office which it so happens is only a few yards from residential premises were not persons whom this section was designed to protect."

11. Buxton L. J. was not in total agreement. He said at p. 2265D:-

"I do not agree with Waller L.J. that it is impossible as a matter of construction for the phrase "in the locality of such premises" to attach to residence. It is in my judgment possible to read the section as directed at nuisance or annoyance to a person residing in residential premises to which the section applies or in the locality of such premises. I do, however consider that, even if that construction is possible as a matter of English grammar, it is extremely doubtful that Parliament intended that construction to extend, as is argued before us that it did extend, to the protection of persons living in private accommodation which happened to be, as a matter of language, in the locality of a type to which section 152(1)(a) extends. There is no reason for such provision. It would turn entirely on the accidental or erratic location of the location of the claimant's home premises and would be a provision not appropriately found in what is a Local Authority Housing Act. Further, I am quite clear, as was Waller L.J., that the provision about visitors cannot as a matter of English language apply to visitors who are in the locality of premises to which the Act applies. It makes no sense as a matter of English to read, as the Act would have to read, "a person visiting in the locality – visiting residential premises to which this section applies". People do not "visit in" a locality, nor would a draftsman say that they did. That is, of course, the case that is put here, that the persons who were so deplorably terrified when working in the Social Services office of the local authority were so working in the locality of residential premises even though of course they were not in the locality of any residential premises occupied by or in any way connected with the defendants. Like Waller L.J., I cannot think that the Act extends in that way. The emphasis is on activities that occur, protection that is needed in, as I have said, the locality (and I emphasise) of residential premises."

12. If I may be permitted some criticism of aspects of that passage, I would point out that when Buxton L.J. referred to the "accidental or erratic location of the location of the claimant's home premises", he may have overlooked that the claimant is the local authority not the person who has been subjected to the anti-social behaviour. Similarly when he referred to the employees working in the Social Services office not being "in the locality of any residential premises occupied by or in any way connected with the defendants", the respondent to this injunction is any person and, it seems to me, the respondent need have no connection with residential premises at all. He may be a complete stranger to the area.
13. Buxton L.J. went on to consider the meaning of section 152(1)(c) and observed that:-

"Unless the Act assumes that there is a connection between the persons present in the locality and residential premises of a type that are protected by the Act then these provisions would be unacceptable. It cannot be that Parliament intended these very strict provisions to apply to someone who is simply found in the locality of residential premises, unless his presence had a connection with those premises. Similarly, persons engaged in lawful activity must, in my judgment, be engaged in lawful activity relevant to and connected with the residential premises that the Act exists to protect. … They do not apply to persons who are engaging in a lawful activity in a place that is unconnected with the residential premises: as is undoubtedly the case, I have to say, with the Social Services unit in which these deplorable events took place. As Mr Bhose accepted, and as is obvious, the Social Services unit might just as well have been located in the Town Hall or in a neighbourhood office a considerable distance from the residential premises: nor is there any reason why Parliament should choose to protect persons working in such a place just because they were in the locality, in language terms, of local authority housing."

14. Buxton L.J. concluded at p. 2266:-

"In my judgment, therefore, the judge was quite right in holding there must be a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises that give this section its force and meaning. The judge did not specify in detail what the link must be and I myself do not find it easy to set out in statutory terms what the connection should be, but connection of a kind it is clear to me there must be before the stringent provisions can be used. What the connection is and whether the connection is sufficient is very much a matter for the trial judge."

15. I have a slight preference for Waller L.J.'s linguistic construction as opposed to Buxton L.J.'s purposive construction. Both reach the same conclusion, with which I respectfully agree, that the class of protected persons comprises:-

i) Persons residing in residential premises. (This would exclude tenants of private landlords or housing associations and the owners of former council houses who have exercised their right to buy, even though all of these may be found on a modern council housing estate).

ii) Persons visiting residential premises.

iii) Persons engaging in lawful activity:

(a) in residential premises; or

(b) in the locality of such premises.

I do not find, as Mr Nardell submits, that the grammar constrains the inelegant "in … in" construction which can apply to brackets i) and ii).

16. The second strand of these judgments is that there has to be "a nexus between the residential premises and the person who is sought to be protected" (per Waller L.J.) and "a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises" (per Buxton L.J.) There is no difference of substance between these views which may be expressed in terms of showing a connection, link or nexus between some identifiable residential premises (as opposed to any residential premises in general) and the protected person. The court is not looking for a connection between the respondent and the residential premises.
17. How then is that to apply? The connecting factor to the first class of protected persons I identified at i) in paragraph 15 is easy: it is the premises in which the person resides. For class ii) it is also easy: the premises which the person is visiting. I do not find the connection less easy for class iii)(a): the premises in which the person is engaging in lawful activity. In these categories the connection is clearly with identifiable premises. I confess I would not have found the connection difficult for class iii)(b) were I deciding the matter de novo: it would be the residential premises, in this instance any residential premises which are in the locality of the place where the person is engaging in some lawful activity. I would have applied a literal test and asked simply: was the threatened/assaulted person engaging in some lawful activity in the locality of council housing? That is a question of fact – see Lawler v Manchester City Council (1998) 31 HLR 119. If the answer were in the affirmative, I would leave it to the good sense of the judge to decide whether the antisocial behaviour so affects the good management of the estate as to give the local authority sufficient interest to intervene and seek the court's help in maintaining good order by granting an injunction backed by a warrant of arrest.
18. I have, however, to acknowledge that I am not free to decide afresh. I must respect the ratio of Enfield L.B.C. and find a connection between the person and the activity in which he is engaging and particular premises connected to him. There is no sufficient connection to protect those who happen to be working near residential accommodation. No-one suggests, and, given the difficulties of construction this section is causing, I certainly do not suggest that the decision is per incuriam and that we can take a different view.
19. Mr Ranjit Bhose, undaunted by his lack of success in Enfield L.B.C. v B, but bolstered by Potter L.J.'s grant of permission, submits that "the necessary link, connection or nexus (however the test be expressed) was present in this case in that the claimant's officers were working in a housing office, which was the office from which the "residential premises" "in the locality" were managed. Furthermore Mr Thames was seeking council accommodation for the homeless. Mr Nardell submits that the proper application of section 152 cannot sensibly depend upon an administrative distinction between the functions carried out by social services and the housing department, nor is there any valid distinction between a request for accommodation for the homeless and a request to be accommodated pursuant to section 17 of the Children Act 1989. I agree with Mr Nardell. The ratio of Enfield L.B.C. is to dismiss as mere accident the coincidence between the place of business and nearby residential accommodation and that must apply whether the business being conducted in the council offices is that of the housing department or of the social services department. I regret that I do not find the distinction to be a tenable one.
20. Furthermore Mr Bhose submits "Had this threat been made by the defendant when an officer (engaged in her employment as a housing officer) was walking among "residential premises" (as defined by s. 152(2)), and had come up and accosted her, … this would have fallen within s. 152(1)(a). If it would, there is no principal distinction to be drawn between such a scenario, and the instant facts". Mr Nardell submits that on the footing of Enfield L.B.C. her walking there would have to form part of some activity "relevant to and connected with" particular premises so that unless there is that connection, the accident of an officer's physical location is immaterial to jurisdiction under section 152. I see the force of and would have preferred Mr Bhose's point but I fear that Mr Nardell correctly interprets the judgment which binds us. It follows that I can find no ground for distinguishing this case from Enfield L.B.C.
21. I can see no error in the recorder's direction nor in his application of his test to the facts. The local authority can obtain and have obtained the protection of an injunction restraining unlawful trespass (or perhaps harassment). Further protection may be available under section 1 of the Crime or Disorder Act 1998 which allows the local authority to apply to the Magistrates Court for an anti-social behaviour order against a person who has "acted in an anti-social manner", i.e. "in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself" when "such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him", see section 1(1). Breach of such an order is an offence. The offence is an arrestable offence giving similar powers to the police as a power of arrest imposed by section 152(6). Breach without reasonable excuse carries a maximum sentence on indictment of 5 years imprisonment. I appreciate that this is a time consuming process when the remedy the local authority needs is the more instantaneous power to arrest the recalcitrant respondent. If, however, section 152 does not give enough protection for local government employees, then it must be for Parliament to come to their help. The court has no jurisdiction to do so in the way the local authorities seek in this case for their staff's protection. The appeal must be dismissed.
Order: appeal dismissed; no order for costs; permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)