CHAPTER TWO – SATISFYING THE THRESHOLD TESTS

 

KEY POINTS Distinction between housing and non-housing related conduct ‘Non-housing related’ conduct ‘Housing related’ conduct Location is immaterial What amounts to nuisance or annoyance? Nuisance or annoyance through noise Non-housing related conduct “Harassment, alarm or distress” Gas safety injunctions and injunctions against landlords The burden and standard of proof

Distinction between housing and non-housing related conduct

1. 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.

2. 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

3. 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:

11. • 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.

4. It has now been re-established by the Court of Appeal that the court can grant an injunction against Persons unknown: London Borough of Barking and Dagenham and Others v Persons Unknown and Others.² 

‘Housing related’ conduct

5. 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. Such applications can now be made to enforce gas (and related) safety inspection access obligations.

6. 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:

11. • 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 homeowners 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.³

7. “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”.⁴

1. 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.

2. 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

3. 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?

4. 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.”

5. 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.”

6. 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.

7. 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.

8. Each incident need not necessarily be so serious on its own as to be actionable in some way, as Holroyde J said in Birmingham City Council v Pardoe [2016] EWHC 3119: “Anti-social behaviour will by its very nature generally involve a course of conduct. It is often the cumulative effect of anti-social behaviour over a period of time, rather than the individual acts, which causes serious harm”.

9. However, you should read the cautionary tale of Rosebery Housing Association Ltd v Williams & Anor,⁵ in which a seemingly clear claim for an injunction was dismissed by HHJ Luba, K.C., with serious consequences for the landlord. It is a painful reminder that an applicant should never be trapped into relying on only a few of multiple allegations, although there were many other problems for the landlord.

“Nuisance and annoyance”

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

Nuisance

11. 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.⁶

Annoyance:

12. This has a wider meaning than “nuisance”. The Court of Appeal defined the word “annoyance” in a case⁷ about restrictive covenants in housing as whether “reasonable 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 law⁸.

13. The test is objective and the conduct has to be capable of being annoying to the reasonable man.⁹ 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.”

14. 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

15. 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.

16. 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.

17. In the context of statutory nuisance under the Environmental Protection Act 1990, the High Court (Mr Justice Turner) observed in Jones & Ors v Chapel-en-le-Frith Parish Council¹⁰ that “there is no legal basis for drawing a distinction per se between noise emitted as a result of anti-social behaviour and “intended use” noise” (i.e., noise that arises within the use of premises for a purpose permitted under planning law).

18. Equally when a complainant has been found to have become hypersensitive due to antisocial behaviour, it does not provide a defendant with a defence to say that they are suffering when others might not have done (ibid).

Contextual acts amounting to ASB

19. 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). It is sometimes only the cumulative effect of individual acts which causes a nuisance or annoyance, or amounts to harassment.

20. 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.

21. 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.

Evidence in applications without notice, powers of arrest and exclusion orders

22. The question of what evidence should be included is even more important when it comes to asking for ex-parte orders, powers of arrest and exclusion orders.

23. On a without notice application, it is essential to avoid any suggestion of a failure to make full disclosure. If there are acts which do not individually amount to ASB but do so cumulatively, this needs to be made clear, so there is no suggestion subsequently that the individual acts did not satisfy the test.

24. When asking for a power of arrest and/or an exclusion order, evidence satisfying the necessary additional tests must be included and highlighted (see Chapter Five).

Non-housing related conduct-harassment alarm or distress

25. 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.

26. 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.

27. 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”

28. 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”

29. 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.¹¹

30. 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“.¹²

31. Baroness Hale put it like this:¹³“… 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.“

32. 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).

33. 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.

34. 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.

35. 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.

36. 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”

37. 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:¹⁴“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.” 

38. 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).

39. The question was also considered in the context of protests in the case of Birmingham CC v Afsar (No 3),¹⁵ in which Mr Justice Warby found that the freedom of expression is not absolute and should be balanced against the rights of others. He said (at paragraph 32): “there is no reason to doubt that in passing this legislation Parliament intended to confer power to seek and to grant injunctions to prohibit anti-social utterances and assemblies of all kinds, in any case where it is shown that this is necessary and proportionate in pursuit of one of the legitimate aims identified in Articles 10(2) and 11(2). The safeguards for the human rights of protestors lie in the Court’s statutory duty under s 6 of the HRA, and in the procedures of the Court.”

40. 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”.

Gas safety and other access injunctions

41. In an appeal by Swindon Borough Council in August 2021 His Honour Judge Michael Berkley held in a detailed judgment that the 2014 Act can be used to enforce a tenant’s obligation to allow access. The judgment is likely to prove very useful to landlords attempting to obtain access to properties to inspect for gas and other safety issues.

42. In that case, Swindon Borough Council had been refused such an injunction at first instance by a Deputy District Judge. The Council appealed. The judge allowed the appeal and confirmed that the 2014 Act can be used in place of a Part 8 claim for breach of tenancy to obtain an injunction. This obviously significantly cuts costs and preparation time for a social landlord.

43. That injunction can (1) prohibit the tenant from refusing access for any inspection pursuant to the tenancy which otherwise satisfies the threshold test for the grant of an order and (2) if necessary, require the tenant to do certain things, such as permit access in a particular way. A power of arrest can be attached if necessary.

44. The judge found that “housing related functions” as referred to in the 1996 Act had, in Swindon BC v Redpath¹⁶, been interpreted widely by the Court of Appeal (and referred to with approval in Birmingham City Council v Sharif¹⁷) and their “housing management functions easily embrace its sense of responsibility to its continuing tenants”.

45. He also found that the defendant’s behaviour did fall within section 2 of the Act, because if neighbours found out that Mr Wood had refused to allow a gas safety inspection it was likely to cause them either (1) harassment, alarm or distress or (2) nuisance or annoyance. Such conduct was either “likely to” or “capable of” causing those defects with no need for evidence of it having taken place in fact.

46. The council had also adduced in evidence in a statement from a senior officer that it could face regulatory action and a potential fine for, and the impact of publicity over the fine would cause it nuisance and annoyance. The continued refusal to permit access, requiring the sending of multiple letters in carrying out numerous visits had involved unnecessary expenditure and use of officer time, also likely to have caused nuisance, and to have interfered with the housing related functions.

47. Equally, officers who had attended but had been refused entry were likely to have been caused a nuisance. Finally, he found that living near a property which had a potentially unsafe and untested gas supply was likely to cause distress or nuisance, particularly given recent events. Such events speak for themselves, he said.

48. The judgment has not been well-publicised and it will no doubt take time for this confirmation of the ability to use the Act to permeate through to landlords and to judges.

Injunctions against landlords

49. Camden Council and the Metropolitan police have secured what is probably the first injunction against a landlord¹⁸, and the various cases involving the individual deserve a look. He has been the subject of a multitude of claims, both made by and against him involving harassment of tenants, and he has made a number of claims for unlawful eviction in respect of properties at which he has never lived¹⁹.

50. This further extension of their ambit of injunctions is likely to prove useful to social landlords attempting to address the significant rise in instances of unlawful evictions by private landlords.

The burden and standard of proof

51. 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.²⁰

52. 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.²¹

 

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