Harris v London Borough of Hounslow, Court of Appeal - Civil Division, October 05, 2017, [2017] EWCA Civ 1476

Issuing Organization:Civil Division
Actores:Harris v London Borough of Hounslow
Resolution Date:October 05, 2017
 
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Case No: B5/2016/4135

Neutral Citation Number: [2017] EWCA Civ 1476

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE STAINES COUNTY COURT

District Judge Trigg

3BO03394

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 5th October 2017

Before :

LORD JUSTICE GROSS

LORD JUSTICE LEWISON

and

LORD JUSTICE FLAUX

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Between :

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MR ANTHONY KATZ (instructed by Ash Solicitors for the Appellant

MS TINA CONLAN (instructed by HB Public Law) for the Respondent

Hearing date: 26 September 2017

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JudgmentLord Justice Lewison:

  1. On 13 October 2016, on the application of the London Borough of Hounslow, DJ Trigg made a possession order against one of its secure tenants, Mr Aaron Harris. She did so on a new mandatory ground for possession inserted into the Housing Act 1985 (``the 1985 Act'') by the Anti-Social Behaviour, Crime and Policing Act 2014 (``the 2014 Act''). The question on this appeal is whether Hounslow's actions can be successfully challenged on public law grounds.

  2. The 2014 Act introduced a large number of remedies for anti-social behaviour. The overall purpose of the legislation was to put victims first. Two closely allied remedies were a closure order which can be made by a magistrates' court, and a new mandatory ground for possession of premises let under a secure tenancy in a case where a closure order has been made. Both these remedies were designed to be speedy.

  3. The preliminary to the making of a closure order is the service of a closure notice. This is a notice served where a police inspector or a local authority is satisfied on reasonable grounds that that there has been, or (if the notice is not issued) is likely soon to be, disorder near particular premises associated with the use of those premises and that the notice is necessary to prevent the nuisance from continuing. The closure notice may prohibit access to the premises by anyone except those who habitually live there. The service of a closure notice is followed by an application to the magistrates for the making of a closure order. An indication of the need for speed is the statutory requirement in section 80 (3) of the 2014 Act that the magistrates must hear the application not later than 48 hours after the service of the closure notice. The magistrates may make a closure order if satisfied that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring: section 80 (5). The effect of a closure order prohibits access to the premises for up to three months, and (unlike a closure notice) it may prohibit access even by persons who habitually live there. There is a right of appeal to the Crown Court against the making of a closure order. Any appeal must be made within 21 days of the decision: section 84 (5).

  4. In tandem with the introduction of a closure order, the 1985 Act was amended to introduce a new mandatory ground for possession. As section 2.8 of statutory guidance issued by the Home Office explains, it applies where criminality or anti-social behaviour ``has already been proven by another court.'' The same guidance explained that:

    ``The purpose of the new absolute ground for possession is to speed up the possession process in cases where anti-social behaviour or criminality has been already been proven by another court. As the landlord will no longer need to prove that it is reasonable to grant possession, the court will be more likely to determine cases in a single, short hearing. This will strike a better balance between the rights of victims and perpetrators, and provide swifter relief for victims, witnesses and the community. The new absolute ground is intended for the most serious cases of antisocial behaviour and landlords should ensure that the ground is used selectively.''

  5. Before applying to court the landlord must serve notice on the tenant under section 83ZA of the 1985 Act. This provides, so far as relevant:

    ``(1) This section applies in relation to proceedings for possession of a dwelling-house under section 84A (absolute ground for possession for anti-social behaviour) ...

    (2) The court must not entertain the proceedings unless the landlord has served on the tenant a notice under this section.

    (3) The notice must--

    (a) state that the court will be asked to make an order under section 84A for the possession of the dwelling-house,

    (b) set out the reasons for the landlord's decision to apply for the order (including the condition or conditions in section 84A on which the landlord proposes to rely), and

    (c) inform the tenant of any right that the tenant may have under section 85ZA to request a review of the landlord's decision and of the time within which the request must be made.

    ...

    (7) A notice which states that the landlord proposes to rely upon condition 4 in section 84A--

    (a) must also state the closure order concerned, and

    (b) must be served on the tenant within--

    (i) the period of 3 months beginning with the day on which the closure order was made, or

    (ii) if there is an appeal against the making of the order, the period of 3 months beginning with the day on which the appeal is finally determined, abandoned or withdrawn.

    (8) A notice under this section must also inform the tenant that, if the tenant needs help or advice about the notice and what to do about it, the tenant should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.

    (9) The notice--

    (a) must also specify the date after which proceedings for the possession of the dwelling-house may be begun,...

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