This was an appeal by Curo Places Ltd (“Curo”) against the decision of the Circuit Judge dismissing a claim for possession brought against Ms Walker.
On 7th July 2015 Curo granted Ms Walker a six year fixed term assured tenancy of a property in Bristol(“the property”). Shortly after the tenancy commenced Ms Walker’s neighbour began complaining about noise nuisance emanating from the premises.
A notice seeking possession was served on 9th February 2016 and a claim was issued on 7th July 2016 relying upon Grounds 12 and 14 of Schedule 2 of the Housing Act 1988.
The Particulars of Claim set out an extensive set of about 150 separate allegations of noise caused by Ms Walker in her flat. The large majority of instances related to one neighbour. Curo also relied on a conviction in the Magistrates’ Court for harassment.
Some of the allegations were admitted by Ms Walker, some were denied. She asserted that a large proportion of the noise complaints were due to poor sound insulation between the flats, some of them arise from the fact that Ms Walker has two small children, and she had a number of mental health conditions that resulted in her being impatient and having low levels of tolerance of stress, shouting, swearing and crying. She brought a defence under s.15 Equality Act 2010.
In the county court the judge found that the grounds were made out but considered that some of the noise nuisance was due to poor sound insulation and found that much of what was being complained of was not deliberate or aimed at the neighbours. The judge also concluded that he was not bound by the decision of the Magistrates and found that it would not be reasonable nor proportionate to order possession.
Curo appealed on 5 grounds:
Ground 1: the judge was wrong to hold that he was not bound by the criminal conviction.
Ground 2: the judge failed to give any or any adequate consideration to s.9A 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.
Ground 3: a 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 s.20 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.
Ground 4: 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 and further it failed to consider the possibility of a suspended possession order.
Ground 5: 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.
Mr Justice Birss dismissed the appeal.
On the first ground the parties agreed that, because of s.11 of the Civil Evidence Act 1968, Ms Walker was to be taken to have committed the offence. On the face of it the statement by the judge below that he was not bound by the conviction appeared to be contrary to that. However, the point the judge was making was that given the view he had formed, the fact that she had the conviction did not require him to take a different view of Ms Walker's conduct overall.
On Grounds 2, 3 and 4, the critical point, on which all three of those grounds were based, was the submission that the judge found that the breaches of the tenancy agreement or nuisance would continue. Those grounds were directed to an appeal against the finding of reasonableness.
The judge below had clearly recognised that Ms Walker might breach the tenancy agreement in future but, reading the judgment as a whole, he was taking the view that this was by no means inevitable. 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 and it could not be said he was plainly wrong in doing so.
Ground 4 did not raise anything different and Grounds 1- 4 were dismissed. The judge noted that in circumstances similar to the present case, another judge might have been persuaded that a possession order should be made, albeit suspended, however that was not a justification for overturning the judgment.
It was not necessary to consider Ground 5 in the circumstances but the judge commented 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.
For the full judgment click here.