FREE CHAPTER from ‘A Practical Guide to Antisocial Behaviour Injunctions’ by Iain Wightwick

CHAPTER TWO

SATISFYING THE THRESHOLD
TESTS

KEY POINTS

  1. Distinction between housing and non-housing related conduct

  2. Non-housing related’ conduct

  3. Housing related’ conduct

  4. Location is immaterial

  5. What amounts to nuisance or annoyance?

  6. Nuisance or annoyance through noise

  7. Non-housing related conduct

  8. Harassment, alarm or distress”

  9. The burden and standard of proof

Distinction between housing and non-housing related conduct

This important difference between ASB in housing related situations and in other public places was created in the final version of the 2014 Act. The House of Lords objected strongly to the widening of the availability of the existing type of injunction to include all housing.

The list of bodies which have the power to apply for injunctions is wider than under the previous legislation.1 Bodies which are faced with the need to control the behaviour of the general public are entitled to apply to the Secretary of State to be added to the list.

Non-housing related conduct

If the behaviour is not ‘housing-related’, then there is an important restriction on the circumstances in which an injunction can be obtained. It is only “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person” (section 2 (1) (a)) that will pass the threshold:

    • This is intended to make it more difficult to get an injunction for non-residential situations.

    • The applicant needs either to produce a victim or prove that it is likely people will suffer such harm;

    • After extensive consultation, the government settled on a list of potential applicants, listed in section 5 of the 2014 Act, which can be extended by order of the Secretary of State.

Housing related’ conduct

Only local authorities and social landlords can apply for injunctions to control “housing related” ASB. The police can also use an injunction to control ASB causing a nuisance or annoyance to people’s occupation of residential premises anywhere.

If the conduct housing related, the threshold is whether the conduct is capable of causing a nuisance or annoyance in relation to a person’s occupation of ‘residential premises’ or (for local authorities and social landlords) in relation to the exercise of housing management functions:

    • This means that it is not necessary to produce a victim who has been caused a nuisance or annoyance.

    • Only social landlords, local authorities and the police can apply for an injunction on this basis, but it can be used against private home owners and to protect those in privately owned accommodation.

    • Social landlords can also apply for orders when the conduct either directly or even only indirectly relates to their housing management functions, so they can protect employees, contractors and the like and they can apply when the conduct happens somewhere there is no social housing at all, e.g. at their offices or in shopping centres, parks etc.2

Housing related” conduct “can clearly be engaged in by someone who is not a tenant or an occupier of property owned by the relevant landlord; equally, it can be engaged in by someone who neither resides nor works within the area in which the conduct occurs”.3

In fact the ASB does not have to be directly related to their housing management functions-it can indirectly affect the applicant’s ‘administration’ of their housing-a very wide phrase.

Housing providers apply for more injunctions than any other body. This is because the 2014 Act can address a much wider range of behaviours and the conduct does not have to be in any particular location.

Location is immaterial

Once that threshold is passed and the conduct can be described as “housing related”, it does not matter where the conduct is happening-the perpetrator can be in social housing, private rented housing, an owner occupier, or homeless/of no fixed abode and they may be causing a nuisance or annoyance anywhere in England/Wales.

What amounts to nuisance or annoyance?

The phrase “nuisance or annoyance” is so wide as to apply to almost any conduct, provided it fulfils that common law test. The “Statutory guidance for frontline professionals” (updated December 2017) gives a few examples of what might be included: “vandalism, public drunkenness, aggressive begging, irresponsible dog ownership, noisy or abusive behaviour towards neighbours, or bullying.”

The Guidance isn’t so helpful on when an order would not be appropriate, as it says they: “should not be used to stop reasonable, trivial or benign behaviour that has not caused, or is not likely to cause, anti-social behaviour to victims or communities.”

Although it should be a matter of common sense to select which incidents should be included in an application, it is often difficult to decide whether more minor incidents of ASB should be included.

The sensible course of action might be to make it plain that the less serious incidents are included as contextual material and to show that there has been a course of conduct. It should be stressed that they would not on their own give rise to the need for an injunction.

Nuisance and annoyance”

The two words really should be considered separately, because they are an alternative requirement.

Nuisance

The legal definition of nuisance has long been argued over in court and it includes making excessive noise by shouting, swearing or playing loud music, allowing cannabis smoke to escape from the house so as to upset neighbours, doing DIY so as to cause the walls of a neighbouring property to vibrate etc. In a housing context the phrase does not just have a technical legal meaning.4

Annoyance:

This has a wider meaning than “nuisance”. The Court of Appeal defined the word “annoyance” in a case5 about restrictive covenants in housing as whetherreasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved”. It does not have to be a legal nuisance as defined by the common law.

The test is objective and the conduct has to be capable of being annoying to the reasonable man.6 In Tod-Heatley the Court of Appeal said that “the meaning is that which annoys, that which raises an objection in the minds of reasonable men may be an annoyance within the meaning of the covenant.

Another judge in the same case said:Annoyance” is a wider term than nuisance, and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house – if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment to comfort.”

Nuisance or annoyance through noise

Noise nuisance, whether by people shouting and/or swearing within a dwelling or directed at neighbours, or the playing of music or making unreasonably loud domestic noise forms the basis of many complaints.

There is a difference between unreasonably expecting total silence from a neighbour and being sensitised to the activities which can be heard, so being annoyed more frequently by a neighbour who is misbehaving. A defendant may claim that the test isn’t satisfied because everyday living noises can be overheard along with the nuisance.

Further, some behaviour might only be a nuisance or annoyance when viewed in the context of other acts or omissions. This is particularly true where there is harassment (see below). When preparing the Scott Schedule, care should be taken to separate behaviour which will fall within the definition from that which the court may find to be ordinary noises of everyday life. Often the question to ask will be whether the previous tenant made similar noise, or whether other residents in similar housing experience this type of noise.

The applicant has to decide what behaviour falls within the definition, what is useful background material to ‘paint a picture’ of what has been happening in the area in the longer term, and what facts should be included to prevent the court thinking that it hasn’t been provided with a full picture.

The question of what evidence should be adduced is even more important when it comes to asking for ex-parte orders, powers of arrest and exclusion orders. On a without notice application it is essential to avoid any suggestion of a failure to make full disclosure. When asking for powers of arrest and exclusion orders, evidence satisfying the necessary additional tests must be included and highlighted.

Non-housing related conduct-harassment alarm or distress

The threshold is higher for injunctions which do not involve housing or affect housing management functions, for instance those concerning hospitals, train stations, shopping centres, public spaces, business premises and suchlike.

First, the behaviour must either have already caused harassment, alarm or distress, or it must be likely to do so. The possibility of such detriment is not enough, unlike the test in housing related nuisance, where the applicant only has to prove that it is capable of causing the detriment.

In practice this means that it is necessary to adduce evidence from victims themselves preferably, who can say that they have been harmed in one of the three ways. That evidence may be first-hand or hearsay, but it must be there, or alternatively there must be good evidence from a professional witness who can describe the reaction of members of the public and show that one or more of the three requirements is satisfied, or is more likely than not to have been satisfied.

Definition of “Harassment, alarm or distress”

The term is the same as that used in the Public Order Act 1986 to define an offence under section 5 of that Act of using threatening, abusive or insulting words or behaviour, or disorderly behaviour and thereby causing someone else harassment, alarm or distress.

Harassment”

Harassment has a statutory definition in the Protection from Harassment Act 1997 (“the 1997 Act”). The definition is wide, but the behaviour has to be more than “unattractive or regrettable”, or “unreasonable and disproportionate” and has to be seen in context.7

The conduct has to be enough to satisfy the criminal test in section 2 of the 1997 Act: “… irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2“.8

Baroness Hale put it like this:9 “… the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions (or since 2005 by conduct on one occasion to each of two or more people): section 7(3). All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.

An intention to ‘harass’ the individual is not necessary. For instance, in Worthington, a housing association was found liable for damages for harassment for unjustly accusing tenants of ASB, even though it acted in good faith following complaints from many residents (see above).

In that case, the Housing Association (“MHT)” alleged that two tenants were using numerous CCTV cameras to film public spaces and threatened to evict them for doing so. Unfortunately, it did not confirm their facts and had failed properly to investigate the allegations it made and to gather sufficient evidence of what the tenants might be doing before making the threat. The residents responded by bringing a claim for damages for harassment.

The trial judge found that one of the defendants did not have any CCTV cameras and the other was merely using them for her own security and not to spy on the general public. On appeal MHT conceded that the statutory defence under section 1 (3) (c) could not apply if the conduct was properly found to be harassment.

The statutory defence in section 1 (3) (c) succeeds if a defendant can prove that: “… in the particular circumstances the pursuit of the course of conduct was reasonable...” As MHT was not acting maliciously and was merely responding to the apparently genuine concerns of a large number of other residents, it is a little difficult to understand why that concession was made. The defence applies when conduct which might otherwise be harassment has a reasonable explanation.

Behaviour which qualifies as harassment will equally convince a court to find ASB in the form of nuisance or annoyance, whereas the reverse will not suffice.

Alarm or distress”

Much is to be gained from looking at the context in which behaviour occurs. For instance, in public spaces there may be protesters aggrieved at some issue who voice their opinions loudly:10 “Protest is lawful; the use of a megaphone as an adjunct of lawful protest is itself lawful. The starting point is unfettered freedom to engage in so much amplified protest as is neither intimidating or harassing.” 

So defendants might argue that while their conduct might be a nuisance or annoying to people, it doesn’t intimidate or harass them. Arguably it is easier to satisfy the threshold of “distressing” somebody, although that distress must be objectively capable of being experienced. The behaviour must be likely to distress someone (which could be evidenced by a professional), or to have actually caused distress (which requires evidence from a victim).

The Bill was amended to protect behaviour which might annoy some people but was thought not to be worthy of condemnation through the legal process, such as carol singing and trick or treating. The difference is easy to see in this context-if some children turn up at a door dressed in Halloween costumes they may well irritate some people. It would be a different matter if adults dressed as characters from a horror movie and acting accordingly were to start visiting people-this could easily tip the balance and be seen as causing “alarm or distress”.

The burden and standard of proof

The burden is on the applicant to prove the constituent requirements. While the 1996 Act only imposed the civil standard of proof, applications for the grant of an ASBO faced the tougher standard of proof “beyond reasonable doubt”, the same as in the criminal courts.11

Defendants made capital of the higher standard of proof and there was inevitably a fight to prove the threshold for the imposition of an order, particularly because they were dealt with mostly in the Magistrates’ Courts. Applications for gang related injunctions under the Policing and Crime Act 2009 and under the 2014 Act do not require proof to the criminal standard.12

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1It currently comprises local authorities, housing providers, the Police, the British Transport Police Force, Transport for London and for Greater Manchester, the Environment Agency, the Natural Resources Body for Wales, the Secretary of State exercising security management functions, a Special Health Authority exercising security management functions on the direction of the Secretary of State, the Welsh Ministers exercising security management functions, and a person or body exercising security management functions on the direction of the Welsh Ministers or under arrangements made between the Welsh Ministers and that person or body.

2The phrase “is a loose and broad link, emphasised by the words “directly or indirectly” and “relates to or affects” and by the merely inclusive definition of housing management functions”: Rix LJ in a decision under the 1996 Act at para [38] in Swindon BC v Redpath [2009] EWCA Civ 943, September 11, 2009; [2010] 1 All E.R. 1003

3Ibid, Neuberger LJ, at [64]

4Harlow DC v Sewell [2000] E.H.L.R. 122, where the tenant was evicted for keeping 40 cats in her house which fouled neighbouring gardens

5Davies v Dennis and others [2009] EWCA Civ 1081

6Tod-Heatley v Benham (1888) 40 Ch.D 80

7Gage LJ in Sunderland City Council v Conn [2007] EWCA Civ 1492, [2008] IRLR 324 at [12]

8Lord Nicholls at [30] in Majrowski v Guy’s and Thomas’s NHS Trust [2006] UKHL 34,

9Lady Hale in Majrowski at [66], cited in Worthington and Parkin v Metropolitan Housing Trust [2018] EWCA Civ 1125 at [6]

10Mr Justice Holland at paragraph 28 of his judgement in Huntingdon Life Sciences Group Plc and Another v Stop Huntingdon Animal Cruelty [2007] EWHC 522 (QB),

11Clingham v Royal Borough of Kensington and Chelsea, R v McCann [2002] UKHL 39

12Jones v Birmingham City Council [2018] EWCA Civ 1189