Community Protection Warning issued to a landlord is upheld

04 May 2022

Housing, Public Law and Judicial Review

The Court of Appeal has refused permission to appeal a High Court decision concerning a Community Protection Warning issued to a landlord.

Elisabeth Laing LJ made the order refusing permission on 26 April 2022 after reading the appeal papers. In addition, she refused the Claimant’s application for anonymity. There is no ability to request an oral hearing.

This article explains the High Court judgment in respect of which permission was sought and summarises the decision of the Court of Appeal.

The original claim for judicial review in the High Court – December 2021

In Scott Halborg v Hinckley & Bosworth Borough Council, the High Court held that a service of a Community Protection Warning (CPW) under s.43(5) of the Anti-Social Behaviour, Crime and Policing Act 2014 is amenable to judicial review. It confirmed that CPWs can be used to tackle a landlord’s behaviour where this is having a detrimental effect on the quality of life of those in the locality.

In addition to dismissing the main claim, HHJ Tindall refused the Claimant’s application for an anonymity order which he had sought to protect his reputation as a solicitor and a professional landlord with a nationwide portfolio of properties.

Summary

The Council had received a significant number of complaints about the Claimant’s conduct towards his tenants, former tenant and neighbours who were not his tenants. The tenants’ own efforts to resolve matters had not worked and the Council was asked to take action. The alleged behaviour included:

i. Entering the rear garden of the property without consent, peering into the property to take photographs or videos

ii. Taking photographs or videos of the residents without their consent

iii. Shouting and verbal abuse toward residents

iv. Threatening to start civil proceedings against two tenants and/or their guarantors

The options considered by the Council included the use of an injunction and a prosecution under the Protection from Harassment Act 1997. A CPW was used as the “lowest possible level of enforcement action”.

The Council served two CPWs – the first CPW served in January 2021 was withdrawn following a pre-action letter and a second CPW served in February 2021.

The January CPW included various requirements which the Council said provided a framework to enable the Claimant to manage his property without having a detrimental impact on the quality of life of his tenants. The February CPW simply asked the Claimant to stop his anti-social behaviour.

The Claimant raised various grounds in his claim for judicial review which were dismissed. In a detailed 58-page judgment HHJ Tindal held:

i. A CPW was amenable to judicial review on the usual grounds, illegality, procedural unfairness and unreasonableness [43].

ii. That the statutory preconditions for serving a CPW, namely conduct of a persistent or continuing nature which is having a detrimental effect on the quality of life of those in the locality, had been met. In particular, the learned judge rejected the Claimant’s argument that asserting one’s legal rights (such as seeking possession against a tenant) cannot amount to conduct which has the requisite detrimental effect. The Judge held that it was “perfectly plain” that lawful activities (and the assertion of legal rights) can have a detrimental effect [52-55]. He accepted the Council’s argument that the effect could be unreasonable [61]. The Judge agreed that the case law on Public Spaces Protection Orders, which used similar language, was relevant.

iii. Detrimental effect was concerned with the impact on the alleged victims, not the state of mind of the alleged perpetrator [69].

iv. There was no procedural unfairness in the Council not having discussed matters with the Claimant prior to issuing the CPW. The Council was not required to issue a pre-warning to the CPW, either by the statute or statutory guidance. Nor did the common law duty of fairness require a pre-warning [80-85].

v. That the Council had not breached its own anti-social behaviour and enforcement policies and had followed the “incremental approach” which those policies required.

vi. That the Council’s decision to issue the February CPW was not irrational, unreasonable or disproportionate.

The appeal – permission to appeal refused on 26 April 2022

Laing LJ rejected each of the Claimant’s seven grounds of appeal.

In refusing permission she observed that what was objectionable about the Claimant’s behaviour was not that he was engaged in disputes about his legal rights but the persistent and unsettling way in which he acted in those disputes.

She confirmed that there was no justification for requiring a warning before the CPW and that the right of appeal to the Magistrates’ Court on the merits was sufficient procedural protection.

The CoA also confirmed that there was no basis for granting an anonymity order, or for the encroachment it would create into the principle that justice is done in public. The allegations were simply allegations which had been received pursuant to a statutory procedure which could in due course lead to a CPN being issued and against which the Claimant would have a right of appeal.

Kuljit Bhogal was instructed to appear on behalf of Hinckley and Bosworth Borough Council. For more information and analysis about this case please feel free to contact Kuljit or her clerk Daniel Gatt.

Kuljit is a leading public law barrister and author of Cornerstone on Anti-Social Behaviour, 2nd edition 2019.

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