Scottish Sheriff Court Decisions

You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Edinburgh Council v. HT [2003] ScotSC 43 (01 July 2003)
URL: http://www.bailii.org/scot/cases/ScotSC/2003/43.html
Cite as: [2003] ScotSC 43

[New search] [Help]

Edinburgh Council v. HT [2003] ScotSC 43 (01 July 2003)

SD 178/03

JUDGMENT OF SHERIFF NEIL JOSEPH MACKINNON, Advocate

in the cause

THE CITY OF EDINBURGH COUNCIL, City Chambers, High Street, Edinburgh,

PURSUERS

against

DEFENDER

EDINBURGH, 2003

The Sheriff, having resumed consideration of the cause, finds the pursuers entitled to recover possession of property occupied by the defender; grants decree against him, removing him and his family, sub-tenants and dependants, with his goods and possessions from the said property and terminating the tenancy between him and the pursuers; directs that no newspaper report of these proceedings shall reveal the name, address or school or include any particulars calculated to lead to the identification of HT, junior, a child below the age of seventeen years, referred to herein; and that no picture shall be published in any newspaper as being or including a picture of said child, all in terms of section 46 of the Children and Young Persons (Scotland) Act 1937; continues the cause on the question of expenses and appoints parties to be heard thereon on

NOTE:

This is a summary cause action for recovery of possession of property. The action was defended. The pursuers were represented by Miss Browne, Solicitor, and the defender was represented by Mr Knight, Solicitor. The pursuers owned the property which was let under a missive of let entered into in accordance with Part III of the Housing (Scotland) Act 1987, and parties were agreed that for the purposes of these proceedings, matters were regulated by the Housing (Scotland) Act 2001, the lease now being treated as a Scottish Secure Tenancy, per section 11 of that Statute.

It was not disputed that the requisite Notices had been served in accordance with the procedure under the 2001 Act.

The pursuers sought to recover possession of the subjects from the defender on the grounds set out in paragraph 1 of Part I of schedule 2 to said Act, and also on the ground set out in paragraph 7 of Part I of that part, and said schedule. Paragraph 1 is a ground permitting recovery where "rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy has been broken". In the instant case, the pursuers founded on alleged breaches of several conditions in the missive of let. Condition 16 of said missive contained an obligation "to share in the cleaning of the common stairs, passages and areas and where appropriate in the maintenance of the communal drying area, all in accordance with the rota fixed by the Council". Condition 19 required that the tenant "take all reasonable steps not to cause any nuisance, harassment (racial or otherwise) or disturbance to neighbours or those living in the vicinity of the premises nor allow members of the household or visitors to cause such nuisance, harassment or disturbance". Condition 25 required the tenant "not to park any motor vehicle or caravan on any garden ground, drying or grassed areas or amenity areas attached to or in the vicinity of the premises". Condition 28 required the tenant not to "use or advertise the premises for any trade, business or profession". Condition 32 required the tenant not to "construct any runway or hard-standing or remove any fence for the purpose of parking a car, caravan or other vehicle or park any vehicle in or on the premises". Paragraph 7(1) provided a ground for recovery where "the tenant ...... a person residing or lodging in the house with, or any sub-tenant of the tenant, or a person visiting the house has (a) acted in an anti-social manner in relation to a person visiting or otherwise engaged in lawful activity in the locality or (b) pursued a course of conduct amounting to harassment of such a person, or a course of conduct which is otherwise anti-social conduct in relation to such a person, and it is not reasonable in all the circumstances that the landlord should be required to make other accommodation available to the tenant". Section 16(2) of said Statute provides an over-arching "reasonableness" test applicable even when grounds for recovery under paragraphs 1 and 7 are otherwise established.

There was a dispute between parties as to whether the individual conditions of the missive of let had all been breached; although there was no formal concession as to whether anti-social conduct had been established, the main thrust of the defence was to the effect that, even if such conduct had otherwise been established, the requirements of the two "reasonableness" tests had not been met, and accordingly the pursuers were not entitled to the remedy sought.

The pursuers' witnesses I regarded as credible, and in general terms, reliable. I was however of the view that it had not been established that, truly, both RT and JT, children of the defender, resided at the defender's address. I was unable to hold that the defender was entirely credible and reliable although I accepted that he had taken certain steps in support of his son's educational needs.

In course of the evidence, a number of objections were taken. In the evidence of Mr AH, during cross-examination, Miss Browne took exception to questioning of the witness as respects an eviction case in the Gilmerton area, on the basis that this did not have relevance to the instant case. It appeared to me that the pursuers' approach to matters of re-housing would be a relevant consideration in the whole circumstances of the case. I have concluded that the objection should be repelled. In the evidence of AMcP, objection was taken by Mr Knight to questioning by Miss Browne formulated in a manner likely to elicit hearsay. I heard the evidence subject to competency and relevancy, and I considered the evidence admissible, as being relevant to matters already spoken to in evidence by CB. In course of the witness VC's testimony, Mr Knight objected in re-examination to questions premised on behaviour being learned from other members of the family. Quite general evidence had been led in cross-examination and I concluded that this evidence should be treated as admissible. In the cross-examination of the defender Mr Knight objected to questioning concerning a claim for housing benefit, as it was said to be irrelevant, there having been no previous foundation for this line to be pursued. There had been some evidence from AH concerning housing benefit and it further appeared to me that this evidence had potential relevance as respects the matter of which individuals continued to reside in the defender's property. Accordingly I considered that this evidence should be treated as admissible. Mr Knight later objected to questioning concerning an application by the defender for a mortgage. I consider this evidence should be regarded as competent and relevant, as potentially bearing upon the reasonableness of the orders sought.

On the basis of the evidence led, I found the following facts proved:-

1. The pursuers are the landlords of property occupied by the defender under a missive of let dated 3 March 1993 (Production No 1). Said property is also occupied by the defender's son, HT and on occasions by CT.

2. Condition 25 of said missive of let prohibited the parking of vehicles on garden ground or amenity areas in the vicinity of the subjects. On various occasions the defender has parked vehicles on a slabbed area of ground at said property in contravention of said prohibition. Condition 28 prohibits the use of said property for the purposes of any trade, profession or business. The defender has operated a firm TC and an ice cream van in contravention of said prohibition.

3. On 22 March 1995 the pursuers wrote to the defender concerning the parking of a caravan in contravention of condition 32 of said missive of let. The defender constructed a hard-standing area at the subjects in contravention of condition 32.

4. The defender as an individual was responsible for nuisance, disturbance et separatim acted in an anti-social manner towards (i) the witness CB in respect of abusive comments and swearing, (ii) the witness MMcC in respect of abusive remarks and anti-social conduct (iii) the witness AR in respect of abusive comments and the throwing of an object at the witness. The defender allowed his son HT to cause nuisance and disturbance to persons living in the vicinity of the premises and he was aware that his son acted in an anti-social manner.

5. In recent years the pursuers have received numerous complaints as to the defender's family. Correspondence was sent to the defender on 12 July 2001 and on 24 July 2001 a final warning letter was sent to the defender. Ultimately a Notice of Proceedings (Production No 5 for the pursuers) was issued.

6. Said final warning letter having been issued, the defender failed to take all reasonable steps to obtain appropriate assistance from relevant agencies. He failed to set boundaries for his son HT.

7. CB, a former resident of the area, was a victim, in or about 11 September 2002 of an attempted theft by the defender's said son. Said child kicked a motor vehicle. CB broached the matter of said child's conduct with the defender, who swore and referred to her as a "grass". CB sought temporary accommodation, and was subjected to abuse in course of removal from her former home. Her daughter, AMcP observed said child attempting to enter her mother's home via a window.

8. LS, a former resident of the area, had motor vehicles set alight, and on occasion she had been subject to abusive behaviour including her vehicle being rocked or otherwise moved. The defender's said son had an involvement.

9. MH, a former resident of the area lived with a partner from an ethnic minority, who was subjected to abuse. On one occasion, speakers were stolen from her car; the defender's son acknowledged his involvement in said theft. MH's car had been set on fire. MH has suffered upset in consequence of said behaviour and has self-harmed.

10. A sheltered housing complex situated in proximity to the defender's home was targeted over a period of time by youths including the defender's said son, whose actings included striking a drain cover at said complex with a sledge hammer. Mudballs were repeatedly thrown at the walls of the complex. The Manager of said complex sought to speak with the defender who responded by throwing an object in the direction of said Manager, and shouted abusive comments at him. Said child threatened said Manager and kicked a football against the wall of said complex, beyond which wall lay an elderly bedridden resident, now deceased. On another occasion he stole a mobile phone along with others.

11. AMcG, a former resident of the area is now residing in temporary accommodation. Whilst resident in the area, she had been subjected to abusive language, emanating inter alia from the children of the defender.

12. PN, a sometime resident of the area, was subjected to abuse. Stones were thrown at her. She required to seek alternative accommodation. She was chased by youths in or about August 2002. She confronted the defender about said conduct but the defender denied all knowledge of matters.

13. Chief Inspector GD, of Lothian and Borders Police whilst in post as Station Inspector, was aware of numerous complaints concerning members of the defender's family.

14. The pursuers compiled a summary of complaints (Production No 50 for the pursuers). Reports were made to the pursuers of incidents of spitting, vandalism and other incidents inducing fear in the victims. Concerns were raised as to the well-being of RT. Several residents requested transfers to other accommodation.

15. One of the pursuers Housing Officers, MMcC, in or about September 1999, attended at the area and was made subject to abusive remarks and menacing conduct on the part of the defender.

16. The Community Police Officer in the said area, PC AW, was aware of a high level of complaints made in respect of the defender's family. HT junior on one occasion had been encouraged by his father, the defender, to give a "no comment" interview. Neither the defender nor members of his family suffered victimisation by the police.

17. The child HT junior was made subject to a supervision requirement, and VC a senior practitioner in the pursuers' Social Work Department, had responsibility for said child. After attending a number of different schools, said child now showed some educational improvement, having been diagnosed as suffering from an attention deficit disorder, and having received medication in the form of Ritalin. Said child, however, refuses to accept that he is offending. Said child is due to attend CS, a city wide resource, which would be available to said child even if the pursuers were to secure an order for repossession of the said property.

18. Were the defender to be evicted, the pursuers would be in a position, if so advised, to provide temporary accommodation for 28 days or more.

19. The defender and his family enjoy a degree of notoriety in the area.

I was not satisfied that there had been a breach of condition 16 of the missive of let, on the basis of the evidence led. As to condition 25, I was satisfied that in respect that the defender had parked on the ground effeiring to the property (albeit that said ground had been slabbed over) there was an infringement of the condition. The area was still, in my opinion, the "garden ground" of the property. As to condition 28, I considered that the defender was in breach of this also. I was unable to accept the defender's evidence as to the operation of TC as credible or reliable. There was forceful, albeit ? evidence of Mr T's involvement in the business and I was unconvinced by the defender's purported explanation. I was also satisfied that he had operated an ice cream van. Condition 32, in my view, had also been breached by reason of the slabbing over of the garden ground area. I was not satisfied that the defender had obtained the pursuers' permission in that regard. As to condition 19 and ground 7 ie paragraph 7 of Part I of schedule 2 to the 2001 Act, the evidence in my view was overwhelming as to anti-social behaviour not only in respect of the defender as an individual but also in respect of his son HT junior. The police evidence was extensive and amply conveyed a picture of an alarming and serious effect rippling through the community. The evidence from former residents who felt compelled to abandon their homes in order to seek alternative accommodation (and particularly the evidence of the more senior witnesses) was forceful, dismaying and harrowing. In light of the law relating to the matter, I required to have regard to the issues of reasonableness both as respects whether it was not reasonable "in all the circumstances" that the landlord should be required to make other accommodation available to the tenant (paragraph 7(1)(b) of Part I of schedule 2 to the Act of 2001, and also to whether it would be reasonable to make the order (per section 16(2)(a)(ii) of the 2001 Act) and the provisions of section 16(3) of the Statute setting out matters to which the Court must have regard in considering reasonableness). As to the former test of reasonableness ie "in all the circumstances", Mr Knight helpfully referred me to Collins and O'Carroll on Anti-social Behaviour and Housing at paragraph 10.2.5.1 et seq and the case of Kyle and Carrick District Council -v- James Currie, 1996 HLR3. I was satisfied that the element of culpability in the instant case was in a high and clear degree. As to the second or over-arching test of reasonableness, I had regard to all the evidence and the points urged on the Court by Mr Knight. I accepted that the child HT junior had relatively recently been diagnosed with a condition for which he was now receiving medication, but I was not satisfied that the medication (Ritalin) in itself operated to address the child's moral sense; indeed, the pattern of complaints in relation to said child appeared to continue beyond the commencement of treatment with that medication. Although there was evidence that the defender had, to some extent, co-operated with the relevant agencies, I was not satisfied that he had taken all reasonable steps as respects his son, including the setting of appropriate boundaries. Even if the eviction were to proceed, the evidence showed that emergency accommodation would be available at least for a period. Furthermore, the educational resources presently arranged for said child were city wide resources and would be available to said child in the event of an eviction.

The effect of the anti-social conduct in this case was of particular significance. It was clear that the residents were deeply affected, and having regard to all the evidence placed before the Court I concluded that it was not reasonable the landlord should be required to make other accommodation available to the tenant. I was satisfied that it was reasonable to make the order sought. The nature and effect of the conduct weighed heavily in the consideration of reasonableness. It was evident that the landlord had taken steps to warn the defender. In my view the pursuers satisfied all the requirements set out in the Statute.

In all the circumstances I concluded that decree should be granted as craved by the pursuers.