Case No: B5/2008/0104
Neutral Citation Number: [2008] EWCA Civ 896
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 25th June 2008

Before:

LORD JUSTICE MAY
LORD JUSTICE LONGMORE
and
SIR PETER GIBSON
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Between:

	THE LONDON BOROUGH OF EALING
	Respondent/
Claimant	
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JAMA	
Appellant/
Defendant	

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(DAR Transcript of 
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Mr A Lane (instructed by Southall Rights) appeared on behalf of the Appellant.

Ms B Zeitler (instructed by London Borough of Ealing Legal Service) appeared on behalf of the Respondent.
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Judgment

Lord Justice Longmore:

1.	The appeal in this case arises from the claimant making a claim for possession of a flat known as 36 Hill Court, Newmarket Avenue, Northolt in Middlesex (“the flat”).  The flat is a two-bedroom flat within a block of flats, having seven floors and containing 41 flats overall.  The property is located immediately above number 31 and directly below number 41.  The defendant has held the flat under a secure tenancy agreement with the claimant landlord since 19 December 1994.  She pays weekly rent of £88.60.  At the time that she obtained the tenancy, the flat was adequate for her housing needs as she only had one child.  She now resides in this two-bedroom property with five other children.   The ages of the children at the date of the trial were 13, 12, 11, nine, six and three.  Moreover, her husband has now come to live with her.  In total there are eight occupants living in this two-bedroom flat and it is thus grossly overcrowded.  It is nothing less than inadequate housing for a family of this size.  The tenancy agreement contains standard clauses.  

2.	The terms relevant for the purposes of the claimant’s action were as follows:

“5.1.3  You are responsible for your actions and for those of anyone living in or visiting the property and you must ensure that this tenancy agreement is not breached.

5.1.4.1  You are responsible for the behaviour of anyone who  lives at or visits the property.  The landlord will treat any breach of this agreement by others as your breach.  You, your household and your visitors must not cause a nuisance or disturbance to any person or commit any acts of harassment to any person within the property, common parts or locality.

5.1.4.2  Harassment includes… 

(f) Making unnecessary or excessive noise.”

3.	The claimant’s case centred on the defendant breaching the above-mentioned terms in that she was responsible for committing or engaging in persistent acts of anti‑social behaviour which included: 
(i)	Noise, nuisance and disturbance by way of repeated jumping on wooden floors and bedsteads, causing vibration, running, scraping, banging and hammering between 21 April 2005 and 24 March 2007.  All in all, about 225 incidents were alleged;  
(ii)	Causing flooding from the property to number 31 on about ten occasions between 2002 and 2007;  
(iii)	Inappropriate disposal of rubbish from a balcony of the tower block on two specified dates in 2005; and 
(iv)	Two occasions of urination in the communal lift on two dates in June 2006.  

4.	Proceedings were issued in April 2007, following the service of a notice seeking possession which was served on the defendant on 21 December 2006.  HHJ Marcus Edwards, sitting in the county court at Brentford, conducted the trial which was heard on 12 and 13 December 2007, with judgment being given on the latter date for the claimant.  

5.	The law on this matter is well known.  By section 84 of the Housing Act 1985 the court can only make an order on grounds set out in schedule two of the Act.  Those grounds include the breaking of an obligation in the tenancy agreement and conduct causing nuisance or annoyance to, among others, other residents in the building.  The court, moreover, may not make an order for possession on those grounds unless it considers it reasonable to do so.  Section 85A then provides that the court must in particular consider in relation to any nuisance or annoyance: (a) the effect that the nuisance or annoyance has had on other persons; (b) any continuing effect it is likely to have on such persons; and (c) the effect of the nuisance or annoyance if repeated.  The judge had all those provisions well in mind and held that the defendant was in breach of the terms of the tenancy agreement and had to give possession of the property on or before 10 January 2008, but there should be a stay pending any appeal, as there has been.  

6.	The judge said that he approached the case by looking for corroborative evidence.  He also looked for the possibility of tenants ganging up against a particular tenant by, for example, bullying, racism or creating an unfair “axis” of other tenants against the defendant, trying to get the tenant out.  He found that the defendant had suffered some harassment at the hands of neighbours or their children.  On credibility he preferred the evidence of Mrs Thomas, who occupied number 31 on the floor below, over that of the defendant when they were in conflict.  The judge stated that Mrs Thomas, in giving her account of the noise coming from the defendant’s flat, was not building up a false case or exaggerating one.  He observed that there was an over-crowding problem that caused or contributed to noise nuisance which in turn caused or contributed to a breach of the tenancy agreement.  He found that the defendant was in breach of her obligations under the tenancy agreement by reason of persistent acts of anti‑social behaviour relating to noise and also by reason of flooding the property at number 31.  He found that the defendant or her family were guilty of inappropriate disposal of rubbish.  He concluded that the defendant was technically in breach of the tenancy agreement when admitting the allegations relating to urinating in the lift, but accepted the defendant was unaware of the incident and for that reason there was no deliberate intention or negligence on behalf in relation to that matter.  He did not consider the rubbish disposal and urinating allegations to be in any way decisive but he did consider that his findings in relation to noise and flooding were important.  He then said that on those facts it was for the court to decide whether an order for possession was merited.  The judge reminded himself that he could not order possession unless he was satisfied that it would be reasonable to make an order for possession.  He had to take into account the public interest for necessary and reasonable conditions in tenancy agreements to be enforced fairly and effectively.  He also took into account the claimant’s obligations towards other tenants.  He decided that the effect of the defendant’s conduct on the occupant of number 31 was serious and the only way the claimant could obtain protection from future breaches was to make an order for possession.  For much the same reason he decided that there should be an outright order for possession as opposed to a suspended order.  

7.	Mr Andrew Lane for the defendant/appellant has attacked this judgment in various ways.  First, he submitted that the noise was no more, or at any rate not much more, than what had to be ordinarily accepted from a household of two adults and six children.  As to that, the judge’s findings in the light of a diary compiled by Mrs Thomas setting out the incidents was uncompromising.  He said:

“There is a long list of incidents of noise in her noise logs which show extensive and persistent noise.  In my judgment, that went beyond ordinary domestic usage and included repeated jumping on wooden floors and bedsteads, sometimes causing vibration of the premises, running, scraping, banging and hammering.  This did not take place during antisocial hours, 11pm to 6am, but took place throughout the day, particularly when the children were there, after school or at the weekends.  They often went on for extended periods of half an hour or more.”

Then in a later paragraph of his judgment he said this:

“I have no hesitation at all in finding that [the noise] was serious and persistent and amounted to a breach of the tenancy agreement.”

8.	It seems to me to be impossible on the face of those findings to hold that the noise amounted to no more or little more than ordinary domestic noise.  Mr Lane pointed to one answer given by Mrs Thomas at the end of a fairly lengthy cross‑examination, but that answer does not seem to me to detract from the clear substantive response she gave to the suggestion that the noise was normal noise at pages 57C and 64B of the transcript with which we have been provided.  Secondly, Mr Lane submitted that the findings in relation to flooding made by the judge were exiguous in the extreme, and, since the judge relied on both noise and flooding in order to conclude that it was reasonable to make the possession order, the necessary foundation for that conclusion was absent.  The court, in the light of that submission, asked to be taken through the evidence on the matter since all the judge had said was that Mrs Thomas’s evidence was corroborated by evidence from a plumber, Mr Beckford, and the records of his visits on two occasions.  In 2006 Mr Beckford, after several of the relevant ten incidents had already happened, visited the defendant’s flat and found the bathroom floor to be soaking, but no evidence of any leakage or defect in the plumbing.  He changed both taps in the bathroom as a precautionary measure.

9.	Mrs Thomas’ evidence as to the problem was in the following terms at page 60 of the transcript:

“…if you’re actually living in my flat, then you can understand what I’ve been through.  As I said, it’s my safety, more or less, and my child’s safety, because with water coming through a light bulb and turning itself on and water coming through the light switch, it’s dangerous, because sometimes either myself walking past or my daughter and if you pull the -- just pull the cord, it is very dangerous.  It is my safety, more or less, I’m concerned about.”

10.	We were told that in cross‑examination the defendant had said that she used a bucket in the bathroom at bath times.  It seems that it may have been spillage from the bucket that soaked the floorboards and then caused the leakage of water of which Mrs Thomas complained.  The judge had accepted the evidence of Mr Beckford and Mrs Thomas, and must have inferred that the flooding occurred in the way described, but the defendant did not appear to see that as a problem.  The judge further concluded that the flooding was a nuisance and thus constituted a breach of the tenancy agreement.  It seems to me, therefore, that the necessary foundation for the judge’s conclusion has been made out.  

11.	Mr Lane next submitted that it was not reasonable to make a possession order, despite the breaches of the tenancy agreement.  He said that the breaches were not deliberate and were thus unlike most cases where a possession order was made in relation to a secure tenancy.  Moreover, the noise did not take place in anti‑social hours and there was a specific finding to that effect.  He pointed out that although the judge had said that the more people you have in a given space the more noise there will be, and said further that that might affect the question of reasonableness, he did not face up to the fact that the noise stemmed from the overcrowding when he came to make his decision.  He only considered the matters he was required to consider under section 85A.  No specific criticism was, however, made by Mr Lane of the fact that the claimant had not found alternative accommodation for the family, but he said that the council knew of the problem and in due course it would be resolved by more appropriate accommodation becoming available to the family.  It was therefore, he submitted, not reasonable to make a possession order now.  

12.	There are, as it seems to me, two answers to that submission.  First, the question whether it is reasonable to make a possession order is very much a matter for the judge.  It is similar to a decision taken by way of the exercise of a judicial discretion.  This court should not interfere unless it is clear that the judge has gone wrong in law or has failed to take relevant considerations into account or has taken irrelevant considerations into account -- see Wandsworth LBC v Hargreaves [1994] 25 HLR 639.  The judge clearly had the overcrowding in mind in the present case and his decision on reasonableness cannot in my judgment be criticised.  Secondly, it is much too open-ended to say that the problem will resolve itself at some unspecified date in the future.  Even if true, it is not a consideration that can outweigh other factors, and particularly factors which Parliament has chosen to emphasise in section 85A of the 1985 Act.

13.	On the last occasion on which my Lord, May LJ, and I had to consider the impact of noise in a case involving the present sections of the Housing Act, the judge’s finding was that the noise was not greatly beyond that which might be expected between neighbours in a property of this type.  In the light of that finding the judge did not make an order for possession and we upheld that decision -- see London Borough of Brent v Doughan [2007] EWCA Civ 135.  On the very different findings of the present case, it seems to me that HHJ Edwards’ decision that it was reasonable to order possession cannot be successfully attacked.  

14.	Lastly, Mr Lane submitted that the judge could have suspended the possession order.  The judge necessarily had to consider that matter, even though Mr Lane had made no submissions to the effect that the order should be suspended.  Mr Lane frankly recognised, however, that while a suspended order might have been appropriate if the only matter about which complaint had been made was the flooding, it was more difficult for the judge to suspend the order when the defendant had been saying that the noise for which she was responsible was no more or little more than ordinary domestic noise.  The judge decided not to suspend the order, since, as he put it, the claimants would be back in court within a very few weeks.  That was clearly right and despite Mr Lane’s sustained and forceful submissions in this undoubtedly sad case, I would dismiss this appeal.

Sir Peter Gibson: 

15.	I agree.

Lord Justice May:  

16.	I agree that this appeal should be dismissed for the reasons given by Longmore LJ.  There were two operative reasons or main reasons why the landlord has claimed that the appellant was in breach of the tenancy agreement and that it was reasonable to make an outright order for possession.  The first was water flooding into the flat below.  The second was persistent noise, mainly, if not exclusively, by the six children.  There were about ten incidents of water penetration, mostly within a period of about two years.  These were established to have happened and the evidence of a plumber, which the judge accepted, showed that they did not occur because of defects in the water system.  The inference was and the evidence was that on at least one occasion when the plumber was there the floor was sodden, and Mrs Thomas’ evidence was that she was very concerned when water came into her flat because the water ran down her lights or a light cord.   She said that her safety was at issue.  It appears that the appellant had no case that the flooding did not happen, nor that it did not occur by overflowing of water which should not have happened.

17.	As to the noise, the defendant’s case was that it was no more than normal for a family with children.  The judge rejected this, preferring the evidence of Mrs Thomas that it went beyond ordinary domestic usage -- see paragraph 12 of the judgment.  That finding is not, in my judgment, amenable to appeal; nor the surrounding findings in that paragraph.  The judge, further, had no hesitation in finding that it was serious and persistent and amounted to a breach of the tenancy agreement -- see paragraph 16.  There was evidence from Mrs Thomas which entitled the judge to find as he did.  In these circumstances I do not see that the judge’s decision that it was reasonable to make a possession order can properly be attacked in this court when there were two substantial types of breach, the flooding and the noise, such as I have referred to.  I do not accept Mr Lane’s submission that, because this flat was grossly overcrowded and that eventually the family would have to be re‑housed, there should be no possession order or that any order should be suspended.  The defendant’s case before the judge did not explicitly include in the alternative that any possession order should be suspended.  Mr Lane’s submission before us tended in the alternative in that direction, and indeed he suggested that conditions as to flooding at least could be imposed.  He was inclined realistically to accept that conditions could not realistically be imposed for the noise, not least in the light of the defendant’s case in that respect.

18.	I do not consider that this court is in any position to allow the appeal to the extent of suspending the possession order which, in my judgment, was properly available to the judge.  

19.	For these reasons, in addition to those given by my Lord, I too would dismiss the appeal.

Order: Appeal dismissed