|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Manchester City Council v Lee  EWCA Civ 1256 (07 August 2003)
Cite as:  EWCA Civ 1256,  WLR 349,  1 WLR 349
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report:  1 WLR 349] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE HOLMAN)
AND ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE MACKAY)
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE CHADWICK
|MANCHESTER CITY COUNCIL||Claimant/Appellant|
|WIGAN METROPOLITAN BOROUGH COUNCIL||Applicant/Respondent|
|(A CHILD BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)||Respondent/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
THE RESPONDENT LEE DID NOT APPEAR AND WAS NOT REPRESENTED
MR J LUBA QC AND MR A FULLWOOD (instructed by STEPHENSONS) appeared on behalf of the Appellant (G)
MR N HINCHCLIFFE QC AND MR M LEMMY (instructed by LEGAL SERVICES DEPARTMENT, WIGAN METROPOLITAN BOROUGH COUNCIL) appeared on behalf of the Respondent (WIGAN)
Crown Copyright ©
Thursday, 7th August 2003
"I am satisfied that the respondent has behaved in a threatening, intimidatory matter, both before and after the eviction proceedings. I am satisfied that he has behaved in a way which is likely to cause a nuisance and annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in the estate or in the locality of the premises, which are the subject matter of these proceedings."
"(1) The High Court or a county court may, on an application by a local authority, grant an injunction prohibiting a person from -
(a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises.(b) using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or(c) entering residential premises to which this section applies or being found in the locality of any such premises.
(2) This section applies to residential premises of the following descriptions -
(a) dwelling-houses held under secure or introductory tenancies from the local authority;(b) accommodation provided by that authority under Part VII of this Act or Part III of the Housing Act 1985 (homelessness).
(3) The court shall not grant an injunction under this section unless it is of the opinion that -
(a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection (1)(a), and(b) there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted.
(4) An injunction under this section may -
(a) in the case of an injunction under subsection (1)(a) or(b), relate to particular acts or to conduct, or types of conduct, in general or to both, and(b) in the case of an injunction under subsection (1)(c), relate to particular premises or a particular locality;And may be made for a specified period or until varied or discharged.
(5) An injunction under this section may be varied or discharged by the court...
(6) The court may attach a power of arrest to one or more of the provisions of an injunction which it intends to grant under this section..."
"It is true that Mr McDonough owns his own house but his evidence was not only directed at that house, but was directed at the respondent's conduct in the estate, and it is the estate and the locality (to use the word of the statute) to which I must have attention."
"... the section clearly has in mind, as the judge decided, that there should be a nexus between the residential premises and the person who is sought to be protected by the subsection. So it has in mind peculiarly persons such as the milkman, the gasman, the water board officials as obvious examples. As it seems to me the judge was clearly right that persons who are working in an office which it so happens is only a few yards from residential premises were not persons whom this section was designed to protect. So on the issue that the judge was asked to rule on, I would dismiss the appeal."
"... it is extremely doubtful that Parliament intended that construction to extend, as is argued before us that it did extend, to the protection of persons living in private accommodation which happened to be, as a matter of language, in the locality of premises of a type to which section 152(1)(a) extends. There is no reason for such provision. It would turn entirely on the accidental or erratic location of the location of the claimant's home premises and would be a provision not appropriately found in what is a local authority Housing Act."
"That is, of course, the case that is put here, that the persons who were so deplorably terrified when working in the social services office of the local authority were so working in the locality of residential premises, even though of course they were not in the locality of any residential premises occupied by or in any way connected with the defendants. Like Waller LJ, I cannot think that the  Act extends in that way. The emphasis is on activities that occur, protection that is needed in, as I have said, the locality (and I emphasise) 'of residential premises'...
It cannot be that Parliament intended these very strict provisions to apply to someone who is simply found in the locality of residential premises, unless his presence there had a connection with those premises. Similarly, persons engaged in lawful activity must, in my judgment, be engaged in lawful activity relevant to and connected with the residential premises that the 1996 Act exists to protect. Obvious cases to which that would apply would be, as was suggested in argument, the milkman delivering the milk, the local authority rent collector collecting the rent, and no doubt a housing officer of the local authority who is attending at the premises in order to perform his or her lawful duties. They do not apply to persons who are engaging in a lawful activity in a place that is unconnected with the residential premises: as is undoubtedly the case, I have to say, with the social services unit in which these... events took place...
In my judgment, therefore, the judge was quite right in holding that there must be a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises that give this section its force and meaning."
"The second strand of these judgments is that there has to be 'a nexus between the residential premises and the person who is sought to be protected'(per Waller LJ) and 'a link or connection between the activity that the persons protected by the injunction are engaging in and the local authority residential premises' (per Buxton LJ). There is no difference of substance between these views which may be expressed in terms of showing a connection, link or nexus between some identifiable residential premises (as opposed to any residential premises in general) and the protected person. The court is not looking for a connection between the respondent and the residential premises."
"I must respect the ratio of Enfield LBC and find a connection between the person and the activity in which he is engaging and particular premises connected to him."
At paragraph 20 Ward LJ accepted the submission that it, "would have to form part of some activity 'relevant to and connected with' particular premises..."
(1) It is sufficient to rely on the discretion of the court to protect persons against an over-extended application of Section 152(1)(a).
(2) This court may have regard to the purpose of the section which is to protect residents on council estates and conclude that in each of the present cases, and ignoring other cases, the making of an injunction was justified and appropriate.
(3) There is no justification for reading into Section 152 (1) (a) words such as, "and having some connection with the premises" at the end of the paragraph.
(4) The anomaly of relief depending on whether the complaint is an owner occupier or a council tenant cannot have been intended, though as Mr Luba QC for G points out, anomalies will arise whichever view is taken of the words, "in the locality."
(5) The views upon nexus expressed in Enfield and Nottingham are so diverse that no principle is established and the court is free to establish its own test. Waller LJ saw the nexus as being between the residential premises and the person to be protected, Buxton LJ between the premises and the activity of that person. In Nottingham Ward LJ, it is submitted, failed to appreciate the difference between the two tests propounded in the earlier case, and the test stated by him based on that misunderstanding should not be applied.
(6) The activities of the threatened person in both cases are sufficient to establish the required link.(a) in the Manchester case the complainant lived near residential premises, a different situation from the employment situation considered in the earlier cases. Mr and Mrs Andrew lived in close proximity to residential premises as defined. They formed a part of a community where there were many such premises and where people were interdependent. The threats had arisen from a dispute about parking on the street in proximity to next door residential premises. Mr and Mrs Andrew came within a category of person, it is submitted, with a sufficient link to relevant residential premises.
(b) in the Wigan case reliance is placed, in addition to the proximity of the complainant to residential premises as defined, to the fact that Mr McDonough had given evidence in proceedings brought by the council to recover possession of residential premises near his. That established a link between him and the residential premises.
(7) In response to Mr Luba's submission that Waller LJ, in agreement with Buxton LJ, plainly had in mind the activities of persons and not just persons as persons, Mr Manning, for Manchester, submits that the "person link" he prefers may be established by the presence of the complainant as a resident without reference to activities on a particular occasion.
(8) If other submissions fail, Mr Hinchcliffe QC for Wigan relies on the evidence of Mr McDonough about threats to other residents who, he submits, do live in residential premises as defined. Mr McDonough stated that for some years these children, which may well have included G, "have carried out intimidation of other tenants and residents and their children. This has included urinating in the streets, swearing at people as they pass, carrying out acts of violence to others and the vandalism of property." The evidence of Mr and Mrs Brew is not now relied on by Mr Hinchcliffe. What Mr McDonough said, the judge found, is that G, "has been behaving in a violent and disruptive manner towards other people as well."
(1) The court is not entitled to construe Section 152(1)(a) as if this court had not ruled upon it in Enfield and Nottingham.
(2) The court in Enfield plainly took the view that in giving effect to the section, in its context under the 1996 Act, it is necessary to place some restriction upon the simple question subsequently posed by Ward LJ at paragraph 17 of his judgment in Nottingham.
(3) In my view Waller LJ did have in mind an activities test when giving in short form examples of activities more fully described by Buxton LJ. In that part of his judgment he was not proposing a different test.
(4) Waller LJ expressly rejected the submission that the subsection protected persons, "simply residing in the locality of the residential premises."
(5) If, contrary to my view, a test stated by Waller LJ in Enfield can be separated and applied to the present cases, it does not enable the authorities to succeed on the present facts.
(6) Ward LJ in Nottingham considered both judgments in Enfield and, in a reserved judgment, with which Sir Martin Nourse agreed, he expressed his conclusion upon them in paragraphs 16, 18 and 20 of his judgment. This court should apply the principles there stated. It is very far from established that they are based on such an erroneous view of Enfield that they may be ignored.
(7) Applying these principles the activities of the person threatened relied on by the authorities in these cases do not have the necessary connection with residential premises as defined in the section. They are activities of a person living in the locality and they may be activities arising out of a dispute between neighbours, but that is not sufficient to link or connect them with the residential premises as the test requires, or to bring the section into operation. In Manchester, the threats complained of were, in any event, removed by time and identity of parties from the parking dispute.
(8) The reference by Ward LJ to particular premises is not a novelty. The judgments in the early cases contemplated particular premises. The expression is not confined, however, to a single dwelling house, but may cover a group of residential premises.
(9) If I am wrong in conclusions 3 and 5, and the court in Nottingham was not bound, as it perceived itself to be, this court is bound by the Nottingham decision which is fatal to the authorities' cases.
(10) I would also reject Mr Hinchcliffe's submission that the injunction in Wigan can be justified on the basis of the evidence of Mr McDonough in relation to other tenants. Mummery LJ and Chadwick LJ propose in their judgments to refer to the form of the injunction. The evidential basis is in any event missing. The evidence is insufficiently specific and does not establish that the unidentified persons claimed to be affected came within the appropriate category. Moreover, the judge's self-direction in paragraph 8 of his judgment, already cited, did not, with respect, sufficiently set out the evidential requirements for an order under Section 152. The injunction in the Wigan case cannot be justified on that basis.
(1) Construction of Section 152 of the Housing Act 1996
(2) Form of injunction
"The Court ordered that [G] is forbidden (whether by himself or instructing or encouraging any other person) from
1. Engaging or threatening to engage in conduct causing or likely to cause a nuisance, annoyance or disturbance to any person residing in, visiting or otherwise engaging in a lawful activity in the locality of Hulme Road, Westleigh, Leigh.
2. Harassing any such person.
3. Using abusive or insulting or threatening behaviour against any such person.
4. Using or threatening violence against any such person.
5. Entering the area edged in red on the plan."
"... whether by himself or by instructing, permitting or encouraging any other person, from: (1) engaging or threatening to engage in conduct causing, or likely to cause, a nuisance, annoyance or disturbance to any person residing in, visiting, or otherwise engaging in a lawful activity in the locality of 161 Yew Tree Lane, Northern Moor, Manchester; (2) harassing any such person; (3) using abusive or insulting or threatening behaviour against any such person; (4) using or threatening violence against any such person; (5) entering, or attempting to enter, 161 Yew Tree Lane, Northern Moor, Manchester and/or the front and/or the rear gardens thereof."
"(a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection(1)(a), and
(b) there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted." (See Section 152(3) (a) and (b)).
(3) The future outlook
"(a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises."
Subsection (2) describes the residential premises to which the section applies. Subsection (3) provides that:
"The court shall not grant an injunction under this section unless it is of the opinion that -
(a) the respondent has used or threatened to use violence against any person of a description mentioned in subsection (1)(a), and
(b) there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted."
It is therefore an essential precondition to the exercise of the powers conferred by Section 152 that the court should be able to identify a person within the description in paragraph (a) of subsection (1) to whom the respondent has used or threatened violence. That person may, for convenience, be described as "the victim".
"Engaging or threatening to engage in conduct causing or likely to cause a nuisance, annoyance or disturbance to any person residing in, visiting or otherwise engaging in a lawful activity in the locality of Hulme Road, Westleigh, Leigh."
Order: Appeal allowed in the case of G and appeal dismissed in the case of Lee; no order for costs in the case of Lee; respondent to pay the appellant's costs to be assessed if not agreed in the case of G; applications to appeal to the House of Lords refused.