COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HERTFORD COUNTY COURT
District Judge Eynon
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE SULLIVAN
| MR TOMMY McGLYNN
|- and -
|WELWYN HATFIELD DISTRICT COUNCIL
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Findlay QC and Mr James Fieldsend (instructed by Welwyn Hatfield District Council) for the Respondent
Hearing date: 19 March 2009
Crown Copyright ©
Lord Justice Toulson:
"Welwyn Hatfield Council have received a number of complaints about anti-social behaviour caused by groups of youths looking for and visiting your property.
The complaints about the behaviour are numerous and come from more than one source. The behaviour described involves large groups of youths shouting and swearing, drunkenness and fighting at very inappropriate times. This kind of behaviour is unacceptable and will not be tolerated by the Council.
I would draw your attention to paragraph 2.4(a) of your Tenancy Agreement which states:-
"You must act in a reasonable manner, and avoid conduct likely to cause:
to neighbours or others.
You are also responsible for the actions of people who live with you or visitors to your home."
Please, therefore, make arrangements to return the keys to the Council Offices…failure to return the keys by 10 May 2004 will result in the council asking our Legal Department to apply to Court for a Possession Order." "
"Tom McGlynn of 20 Kingscroft Welwyn Garden City has brought to my attention a notice to quit dated 28 April 2004…I have had a long chat with Tom regarding the situation and he has expressed his own problems that he has at the property and in fact he wishes to move and has done so for a long time but he believes he is in rent arrears of over £500 and is not able to do so. As you are probably aware he is a single male living in a two bedroom property. Tom wishes to move to a one bed as he feels that the flat is too big for him. At present Tom is trying to turn his life around. He is regularly attending Chrysalis due to his substance misuse and he's currently doing very well. Tom is well known to the police and on several occasions the police have been to the property knocking on the windows and calling his name. Tom is also well known in the area and unwanted visitors do turn up at the property, not usually people that know him but know of him. He is trying very hard to stay away from it all so Tom has taken to not answering the door to people and ignoring them knocking on his windows. These visitors are just as unwelcome to Tom as they are to his neighbours and apart from ignoring them Tom feels there is not a lot more he can do about it. Tom does not wish to hand his keys in as he will have nowhere else to live. He is willing to meet with you to discuss this so he can work with the council to resolve these problems."
"We have received a number of complaints regarding visitors to Mr McGlynn's property and also about his own behaviour. The complainant is aware that their evidence will be needed in court and they are willing to assist the council and have agreed to give evidence in court if needed. Should the council be required to apply for a Possession Hearing Mr McGlynn will have the opportunity to offer a defence, either personally or via a Solicitor, to the Court.
The Local Authority does not take action against a person's tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality. The Local Authority also liaises closely with the Police in relation to complaints received and they have confirmed that they have received a number of calls regarding the anti-social behaviour caused by either Mr McGlynn and/or visitors to his property.
Mr McGlynn has a non-secure tenancy that can be brought to an end by serving a Notice to Quit. As a Notice to Quit was served on 28 April 2004, Mr McGlynn no longer holds a current tenancy with Welwyn Hatfield Council. However, we would need to apply to the Court for vacant possession of the property.
If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft…
If you require any further information, please do not hesitate to contact me on the above number. I am, of course, willing to discuss any matter directly with Mr McGlynn."
History of the action
"I strongly believe that she made up the allegations against me so that she could get moved".
"I do not know the people who the lady at number 27 is talking about and I did not and have never invited these people to my home. They are nothing to do with me. The fact is even I reported nuisance which I was, and still am a victim of. My drug worker, Caroline Keeney, wrote to the council in the...letter dated 2 June 2004…asking for assistance on my behalf."
"The unusual circumstances of this case raised by the letter of 2 June 2004, the procedural course followed when the claim was brought, and the fact that the House of Lords has now clarified the law between the first instance decision and this appeal".
"It is seriously arguable that in the light of the assurances given in the first two paragraphs of the letter which I have set out above, the local authority has acted in a way which is an improper exercise of its powers which no reasonable person would consider justifiable."
12. The Claimant/Part 20 Defendant (The Council) served a Notice to Quit on Mr McGlynn without providing him with any opportunity to respond to the allegations made by a resident despite the lack of corroborative evidence.
13. The above mentioned Notice to Quit was served despite an apparent policy that:
"The Local Authority does not take action against a person's tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality" (letter from the Claimant/Part 20 Defendant dated 2 June 2004).
14. The Council, by a letter (as mentioned above) dated 2 June 2004 gave Mr McGlynn a legitimate expectation that the Council would not in fact seek possession if there were, in fact, no significant breach;
"If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested."
"Should the Council be required to apply for a Possession Hearing, Mr McGlynn will have the opportunity to offer a defence either personally or via a Solicitor to the Court."
15. Mr McGlynn contends that the Council could not have been satisfied that there had been a significant breach of the Tenancy Agreement, for the reasons set out above. The Council have acted unreasonably in seeking possession in the light of their promises/ assurances to Mr McGlynn who was entitled to rely on the same.
16. Mr McGlynn was given a legitimate expectation that his situation would be fully investigated prior to any possession order.
"17. The complaints about anti-social behaviour did not stop and, therefore, possession proceedings were commenced on 14 April 2005…
18. The decisions to serve notice to quit and issue possession proceedings were taken because the Claimant, through its officers…, were satisfied that there were ongoing complaints on anti-social behaviour. Those decisions were taken many months ago…
19. The complaints of anti-social behaviour from the premises are ongoing. I will not go into detail at this stage because those allegations are not relevant to this application."
"It is submitted that this letter gave the defendant the legitimate expectation that he would have an opportunity to defend the allegations of nuisance and rent arrears at court, and, in addition, a legitimate expectation that if there had in fact been no breach, that no action would be taken."
The appellant's submissions
"the manner in which the local authority had satisfied themselves as to the anti-social behaviour which they suggested continued and in what way the local authority had afforded the appellant an opportunity to answer the suggestion that nuisance and anti-social behaviour had continued such that it justified bringing possession proceedings."
"In my judgment, if the local authority had not given the appellant a reasonable opportunity to make representations to it before it made a decision that it was satisfied that there had been "a significant breach" causing nuisance or annoyance it would be seriously arguable that the local authority had improperly exercised their power to bring possession proceedings."
"that evidence would go to why the local authority was satisfied that the nuisance or anti-social behaviour continued and how they had given the appellant an opportunity to make representations in respect of the alleged nuisance and anti-social behaviour."
The council's submissions
Discussion and conclusion
Lord Justice Aikens:
Lord Justice Sullivan: