England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
ON APPEAL FROM THE ORDER OF HHJ MATTHEWS MADE ON 7TH MARCH 2017 SITTING IN THE COUNTY COURT AT BRISTOL

		Bristol Civil Justice Centre 2 Redcliff Street Bristol BS1 6GR
		25/09/2018

Mr Justice Birss :

1. This is an appeal from the judgment of HHJ Matthews sitting in the County Court at Bristol. After a two day trial the judge dismissed a possession claim brought by the appellant landlord (Curo) against the respondent (Ms Walker) who is tenant of 7B Durham Grove, Keynsham, Bristol. Ms Walker holds a 6 year fixed term assured tenancy of her home.
2. The tenancy was granted on 7^th July 2015. Problems soon developed with Ms Walker's neighbour Jamal Azami complaining about noise nuisance emanating from Ms Walker's premises. A notice seeking possession was served on 9^th February 2016 relying on grounds 10, 12 and 14 of of Schedule 2 of the Housing Act 1988. The claim form was issued on 7^th July 2016. Ground 10 (rent arrears) was not ultimately pursued. Ground 14 relates to causing nuisance or annoyance. Ground 12 (breach of an obligation other than to pay rent) is also relied on because the tenancy agreement includes obligations prohibiting the same conduct addressed in Ground 14.
3. If the court is satisfied that one of these grounds is made out then it may make an order for possession if it considers it reasonable to do so (s7(4) of the Housing Act 2010). The order may be outright or in a discretionary case like this may be adjourned, suspended or postponed including on conditions (s9(2)(3) of the Housing Act). Where Ground 14 is relied on then s9A of the Housing Act is relevant. It provides (in sub-section (2)) that the court must consider in particular the effect the nuisance or annoyance has on other persons, any continuing effect it is likely to have on such other persons and the effect it would be likely to have on such persons if it was repeated.
4. A further feature of this case was that Ms Walker relied on a defence under s15 of the Equality Act. I will come back to that if necessary.
5. The Particulars of Claim set out an extensive set of about 150 separate allegations of noise caused by Ms Walker in her flat which was heard by neighbours. The allegations include sounds of banging on the floor, slamming doors, shouting and swearing in her flat. They also include being verbally abusive and using racist language. The large majority of instances relate to Mr Azami while a few related to other unnamed residents.
6. In her Defence, Ms Walker's case was that while some of the allegations were admitted, some were denied (this sentence of the Defence does not specify which, and explains that will be dealt with in Ms Walker's evidence). The Defence also asserts that a large proportion of the noise complaints are due to poor sound insulation between the flats and that many of the occasions complained of, such as those relating to banging, arise from the fact that Ms Walker has two small children who are very active early in the morning. The Defence admits that Ms Walker had banged on the floor on occasions, stating that this was because she herself was disturbed in the early hours by her neighbour's activities. The Defence explains that Ms Walker has a number of mental health conditions that result in her being impatient and having low levels of tolerance of stress, shouting, swearing and crying; and she has been referred to a specialist behaviour management programme.
7. The Particulars of Claim also relied on proceedings which took place at Bath Magistrates' Court. Ms Walker was prosecuted as a result of her anti-social behaviour at the premises. She was convicted of harassment but found not guilty of racially or religiously aggravated harassment.
8. At the county court trial the judge heard evidence from a number of witnesses including officers of Curo. The main witnesses were Mr Azami and Ms Walker. Ms Walker also relied on an expert report (and answers to questions) from a consultant psychiatrist, Dr Rajpal. The judge noted that a number of the allegations relied on by Curo related to other residents but there was no evidence from them.
9. In his judgment the judge accurately summarised the background and circumstances and then addressed the evidence before him.
10. In relation to Mr Azami the judge held that that he (Mr Azami) believed the noise was being made on purpose and was directed at him. However Mr Azami did accept that the noises from Ms Walker's flat tended to follow noises from his own property (although not always). The judge held that Mr Azami believed that he and his family were being targeted by Ms Walker's behaviour, that all the noises were part of this abuse and that the abuse was on racial grounds.
11. In relation to Ms Walker, the judge noted her troubled family history, which involved domestic violence and post-traumatic stress disorder. She felt under constant attack whenever people made comments she thought were directed to her. The judge noted that Ms Walker admitted she had been in breach of the tenancy agreement and that this had had a negative impact on her neighbours but she did not accept the truth of all the allegations against her. She said that she would be woken early by noises coming from downstairs. The Azami family is downstairs. Ms Walker also said that her landlord had not taken proper account of her mental health issues.
12. The judge was given sound recordings to listen to. He explained that one was particularly revealing because it had been presented to him as a rather shocking recording but it turned out to be underwhelming in that it seemed to the judge that the insulting words were "spaced out in time very considerably and sounded much more as if the defendant … was either talking to herself or was talking for the benefit of someone else who was present, or possibly even on the telephone, but certainly not as if she was intending to communicate with the people downstairs, as Mr Azami would have believed" (paragraph 32). The judge held that these samples demonstrated that there really was a serious problem in the building in relation to the sound insulation. He held that this meant there was a significant potential for the sounds generated by ordinary everyday activities (such as use of the lavatory and people just talking) to cause disturbances between the properties.
13. The judge noted the report from Dr Rajpal which confirmed Ms Walker's post-traumatic stress disorder, mental and behavioural disorders from smoking cannabis and gave his opinion that this amounted to a disability within the Equality Act 2010. In a later report he said that if Ms Walker was made homeless that would lead to a deterioration in her mental state.
14. After considering the evidence up to paragraph 36 of the judgment, the judge turned to the grounds for possession at paragraph 37 onwards. In this section although he does not say so in terms, the judge makes clear findings that the grounds are made out. In doing so he also noted a number of factors which went to reasonableness rather than to whether a ground was made out, including whether the conduct relied on was the fault of the tenant (paragraph 38) and the fact that some of Ms Walker's conduct is triggered by noise from downstairs because of relatively poor sound insulation (paragraph 39-40).
15. The judge specifically addressed the fact that Ms Walker herself was still occasionally subjected to racial and other abuse, not by Mr Azami. Then, provoked by the insult, Ms Walker might repeat it back to herself and given the poor sound insulation that is audible downstairs. The result has been that Mr Azami and his family think it is being directed at them, when it is not. The judge found at paragraphs 42-43 that much of what is complained of are actually private conversations within her flat or in common parts which are not directed to Mr Azami and escape from Ms Walker's property due to poor sound insulation. Owing to his negative experiences in the past, Mr Azami thought they are directed at him when they are not.
16. The judge then addressed other complaints – about banging, door slamming and other noises. The judge found that much of it was noise caused by normal life, that Ms Walker was not aware of how noisy it would actually be, that the problem was exacerbated by the poor sound insulation and that Mr Azami wrongly believed it was being directed at his family.
17. Finally in this section the judge dealt with the conviction for harassment and the question of racial elements of the statements alleged to have been made by Ms Walker. As regards the racial elements the judge was not satisfied that this part of the case was made out (paragraphs 48-50). As regards the conviction the judge said (paragraph 47) that he did take account of it but also said in the same paragraphs that he was "not bound by the decision of the Magistrates". That gives rise to one of the grounds of appeal and I will return to it below.
18. The judge then considered reasonableness, referred expressly to s9A and reminded himself that he should consider the effect the conduct has had and may have in future on Mr Azami and his family. The judge said that "It is plain that up to now there has been a significant effect. I do wonder however whether, once it is understood that the conduct was not directed at Mr Azami and his family, whether that would continue to be the case." (paragraph 51).
19. In paragraph 53 the judge considered the seriousness and frequency of the activities complained of which were "very much more disturbing and more frequent at the beginning of the period than they are now". As for the likelihood of their continuing, the judge doubted that Ms Walker was ever going to get completely better but said that he thought she had the ability to control her behaviour to a much greater extent than she has so far. He hoped that treatment would be made available for her. He also took account of her personal circumstances.
20. The judge (paragraph 56) considered the effect on Mr Azami's family and held that the disturbances would continue albeit at a reduced rate. He recognised that it was possible Mr Azami would give up his tenancy, which the judge said would be a sad consequence but understandable.
21. At paragraph 57 the judge held that an "extremely important" factor was that much of the difficulty was caused by the condition of property itself. The judge accepted that the noise insulation no doubt satisfied the relevant rules but thought it was less than adequate in modern living situations and also noted the problem of screeching pipes from downstairs.
22. The judge referred to the possibility of moving either Mr Azami or Ms Walker and referred again to Ms Walker's conviction for harassment (paragraph 58) and then at paragraph 59 decided not to make the possession order, holding:

"Overall, my assessment is that, even without considering the Equality Act defence, I would not think it reasonable to make any kind of possession order in this case against the defendant. This is a wholly, and I emphasise this, this is a wholly exceptional case. In an ordinary case, where there were not these extra factors of lack of noise insulation, of mental health problems and so on, this would be a very serious case and an obvious one for making an outright possession order."

23. After this the judge went on to consider the separate issue of a defence under the Equality Act 2010 and found it was made out too, given Ms Walker's mental health problems. He considered that eviction was not a proportionate means of achieving a legitimate aim when there were other possible measures which could be taken including behaviour management courses for Ms Walker, solving the problem of screeching pipes and ameliorating the sound insulation, moving one or other or both parties or at least stopping the doors from banging.
24. Then after dealing with the Equality Act issues the judge added some final observations (paragraphs 66-69). The evidence disclosed a very real problem in this case, however part of that problem was caused by the combination of poor sound insulation and normal household noise. Eviction was not the solution. He said that Ms Walker now knows what the effect some of her behaviour has on the family below and should take advantage of the behaviour management courses open to her. Curo also should consider the other possible measures.
25. Curo sought permission to appeal. Although I refused permission on paper, I gave permission at an oral hearing. At one stage the application for permission to appeal also included an application to rely on fresh evidence arising after the trial but that application was not pursued. The five grounds which were pressed before me are as follows:

i) Ground 1 is that the judge was wrong to hold that he was not bound by the criminal conviction.

ii) Ground 2 is that the judge failed to give any or any adequate consideration to s9A of the Housing Act despite having found that the breaches of tenancy and/or nuisance would continue and that the complainant would continue to suffer the same.

iii) Ground 3 was that the finding that a possession order was not reasonable or proportionate because Curo should deal with the sound insulation ignored the fact that there was no reasonable adjustments defence under s20 of the Equality Act nor could such a duty require Curo to alter any physical feature of the building and there was no evidence the building did not comply with building regulations.

iv) Ground 4 was that having found that this was a serious case, the grounds for possession had been made out and that the breaches of tenancy would continue, the decision that it was not reasonable or proportionate to make a possession order was perverse and based on irrelevant considerations (sound proofing, moving the defendant or main complainant) and further it failed to consider the possibility of a suspended possession order.

v) Ground 5 was that no Equality Act defence was pleaded and that in any event the expert evidence did not link the behaviour complained of to Ms Walker's mental health.

26. I turn to deal with these grounds.
27. Ground 1 arises because in his judgment, when dealing with Ms Walker's conviction, the judge said in paragraph 47 that he was "not bound by the decision of the Magistrates". The appellant submits this was plainly wrong and that it is an attempt to downplay the significance of the conviction which was misplaced. The conviction showed that Ms Walker had (in the words of the Protection from Harassment Act 1997) pursued a course of conduct which amounted to harassment of another and which she knew or ought to have known constituted such harassment. The appellant submits this was a significant factor in deciding the question of reasonableness and should have been taken into account and acknowledged.
28. The legal principles are not in dispute. By s11(1) of the Civil Evidence Act 1968, in any civil proceedings, the fact that a person has been convicted of an offence shall, subject to irrelevant exceptions, be admissible in evidence for the purpose of proving that they committed the offence. By s11(2), the person shall be taken to have committed the offence unless the contrary is proved. There was no attempt to prove to the contrary and so by s11(2) Ms Walker was to be taken to have committed the offence.
29. Although on the face of it the statement by the judge that he was not bound by the conviction appears to be contrary to s11(2) and appears to downplay its significance, when the judgment is considered as a whole, that is not what the judge was doing. The judge was not saying in paragraph 47 that he was coming to any conclusion other than that Ms Walker had committed the offence of harassment for which she had been convicted. That is clear from the remainder of the paragraph 47 and from paragraph 58 where the judge returned to the conviction and expressly took it into account. The conviction was based on events on three particular but unspecified days from a period between 22^nd August and 7^th November 2015. The evidence before the judge included allegations about incidents on thirty days in that period. The appellant's case on appeal is presented as if it was clear before the judge which of those allegations was established by the conviction, but it was not. No record was given to the court identifying with clarity which of the incidents led to Ms Walker's conviction as opposed to what had been alleged. The transcript shows that the solicitor for the appellant before the judge (who did not appear on the appeal) explained that they did not know which allegations in Mr Azami's evidence were the ones relevant to the harassment charge. Thus the allegations before the judge were more extensive than the matters covered by the conviction and the evidence was much more wide ranging. Moreover given that the racist abuse allegations were pressed before the judge, it was also relevant, as the judge noted, that Ms Walker had been acquitted of the aggravated harassment charge.
30. The judge formed a view of Ms Walker's conduct overall based on the evidence before him, which included the fact that some of her conduct was a reaction to noises coming from downstairs and bearing in mind the poor insulation, and that her conduct was not directed at Mr Azami. Forming such a view based on all the evidence before him was part of the task he had to undertake. I believe the point the judge was making with these words was that given the view he had formed he was not required by the conviction to take a different view of Ms Walker's conduct overall. Given the lack of clarity about the facts on which the conviction was based, in conducting his overall assessment the judge was entitled to do so.
31. The judgment was given ex tempore. It may be that the judge's words were intended simply to mean that he was not bound to make a possession order by the conviction. If that is what the judge meant then he was right. The conviction was obviously a serious matter but it did not have the effect of binding the judge to make such an order (cf. North Devon Homes v Batchelor [2008] EWCA Civ 840).
32. I reject this ground of appeal.
33. I can start on grounds 2, 3 and 4 by taking them together. The critical point, on which all three of these grounds are based, is the submission that the judge found that the breaches of the tenancy agreement or nuisance would continue. That is the foundation on which the challenge to the judge's decision is based on each of these grounds. If that was what the judge found then I would have little hesitation in allowing the appeal, for the following reasons.
34. These grounds are directed to an appeal against the finding of reasonableness. In Manchester CC v Higgins [2005] EWCA 1423, [2006] 1 All ER 841 at paragraph 31 Ward LJ explained the difficulty in such an appeal as follows:

"31. To appeal a finding of reasonableness is not easy. This court will not interfere unless the judge has erred in principle; taken into account some matter which he should not have taken into account or left out of account something which he should have taken into account; or that the decision is plainly wrong in the sense not that an appellate judge would have taken a different decision had it been his or hers to take but that the decision under appeal falls outside the generous ambit within which there is room for reasonable disagreement."

35. However as Ralph Gibson LJ said in Sheffield City Council v Jepson (1993) 25 HLR 299 and May LJ repeated in Newcastle City Council v Morrison (2000) 32 HLR 891: it is in the public interest that necessary and reasonable conditions in tenancy agreements of occupiers of public housing should be enforced fairly and effectively. Applied to the facts of this case, there was no question that the tenancy conditions against noise nuisance and anti-social behaviour were anything other than necessary and reasonable conditions. If the judge had concluded as part of his s9A analysis that what was going to happen in future involved continued breaches of those conditions, then the facts would present a strong case for making a possession order. Having made one, the judge would then have had to give serious consideration to suspending the order and no doubt, given what he said, he might well have done so with conditions, but that is a different matter altogether. It is not what the judge did.
36. The respondent submitted that the judge did not find that breaches of the tenancy agreement would continue and submitted the appellant's case was based on a false premise. The issue turns on the words of paragraph 56. It is that paragraph in which the appellant contends the judge made the crucial finding. I have already summarised the relevant part of the judgment above. Paragraph 56 states:

"56. So far as concerns the consequences of an order not being made, the disturbances of Mr Azami and his family will continue, albeit at a reduced rate. It is possible, as foreseen by Ms Begum in her submissions, that he will choose to give up his tenancy rather than continue to live there, which would obviously be a sad consequence, but one can understand why he might make that choice."

37. There is no doubt that the judge held that Ms Walker had breached the tenancy agreement in the past and that what the judge was saying in paragraph 56 was that "the disturbances" would continue in the future. However in my judgment the appellant is wrong to equate the disturbances the judge was recognising would continue, albeit at a reduced rate, with the activity found to have breached the tenancy agreement in the past. On the contrary the judge had held that much of the disturbance he had identified was not caused by any breach of the tenancy agreement or nuisance by Ms Walker. The case based on targeting Mr Azami's family and racial abuse had been rejected. Part of the difficulty was caused by the fact that Mr Azami, wrongly, thought his family was being targeted by Ms Walker. The judge found that a significant cause of the disturbances was the combination of poor sound insulation and ordinary household noise.
38. The judge clearly recognised that Ms Walker might breach the tenancy agreement in future but, again reading the judgment as a whole, the judge was taking the view that this was by no means inevitable. The likelihood of future events, their seriousness and its impact on Mr Azami were all part of what the judge was considering in the reasonableness assessment. Overall the conclusion he reached was that it was not reasonable to make a possession order. As the trial judge that is an assessment he was in the best position to make. It cannot be said he was plainly wrong in doing so.
39. That disposes of a major part of all three of grounds 2, 3 and 4 but there are some remaining issues on these grounds to consider.
40. Ground 2 involves the submission that the judge failed to give any consideration to s9A. However the judgment expressly refers to the section and, as a matter of substance, considered the effect the conduct has had on Mr Azami and his family, any continuing effect and the effect it would have if repeated. I reject that aspect of ground 2.
41. The only other aspect of ground 2 which I should deal with is the appellant's submission that references in the judgment to a "failure" by Curo to seek to move either the Azami family or Ms Walker were wrong and inappropriate in the context of a reasonableness assessment. The appellant refers to paragraphs 58 and 63. The reference to paragraph 63 is inapt since that is part of the judgment on the Equality Act point. As for paragraph 58, the judgment did indeed refer to that fact that there was no evidence that Curo had considered moving either Mr Azami or Ms Walker. To criticise the judge for this reference is unwarranted since, as the respondent pointed out on appeal, the judge was addressing points made to him by the appellant's advocate in her submissions at trial. The judge could have been criticised for not mentioning it. The judge was not saying that moving was required as a result of Ms Walker's conduct in breach of the tenancy agreement. If that had been the judge's view then it would be a powerful factor in favour of a possession order. He was recognising that much of what troubled Mr Azami was caused by disturbances which were not to be regarded as a nuisance or breach by Ms Walker together with Mr Azami's incorrect interpretation that Ms Walker was targeting him. He was right to take that into account and accordingly I dismiss ground 2 of the appeal.
42. Ground 3 raises a specific point about sound insulation but again, it is based on a mischaracterisation of the judgment. Contrary to ground 3, the judge did not find that the sound insulation was a breach of the building regulations. He accepted that they did comply (paragraph 57). Also contrary to ground 3, the judgment does not find that the landlord had a duty to alter the building in any way nor did the judge require or insist that they did so. His consideration of alternative measures was part of his separate assessment under the Equality Act 2010 but that is another matter. In that context he found that dealing with the insulation was a less drastic measure open to the landlord than eviction but, in the context of the possession claim itself (as opposed to the Equality Act 2010 defence) all the judge was doing was taking the sound insulation into account as part of his overall assessment. He was right and entitled to do so and so I dismiss ground 3 as well.
43. Ground 4 does not raise anything separate over and above the matters already considered above.
44. Before leaving grounds 1 to 4, I will add this. Standing back, I can see that in circumstances similar to the present case, another judge might have been persuaded that the likelihood of continued breaches of the tenancy agreement and their effect on Ms Walker's neighbours such as Mr Azami was sufficiently high that a possession order should be made albeit that the circumstances warranted a suspension of that order as a means to give Ms Walker the chance to regulate her behaviour. However that is not a justification for overturning this judgment. The judge clearly understood the law he was required to apply and, having found the grounds made out, went on to carry out a detailed assessment of reasonableness and of the factors under s9A of the Housing Act and made no error in doing so. In my judgment grounds 1 to 4 should be dismissed.
45. In the circumstances it is not necessary to consider ground 5 because by dismissing grounds 1 to 4, the judgment refusing the landlord's possession claim stands. This is not the occasion to consider the interaction between possession claims and the Equality Act. On ground 5 I will only say that the pleading point was unmeritorious. The point was fully argued before the judge and did not take the landlord by surprise at trial in any way.

Conclusion

46. The appeal is dismissed.