Property – Improvement notice – Injunction – Claimant local authority seeking final mandatory injunction against defendants to secure compliance with improvement notices – Whether expedient to grant injunction for promotion or protection of interests of inhabitants of area – Whether just and convenient to grant injunctive relief sought – Claim allowed
The claimant brought a Part 8 claim in its capacity as a local housing authority seeking a final mandatory injunction against the defendants to secure compliance with improvement notices served under sections 11 and 12 of the Housing Act 2004.
The claim concerned a residential property at 7 Butteridges Close, Dagenham. The first defendant was the leasehold owner of the property and the second defendant acted for and on behalf of the first defendant in relation to the rental of the property.
In May 2022, the defendant’s housing officer received a complaint about disrepair at the premises from one of the tenants. The first defendant was identified as the owner of the property from Land Registry records and he was registered at the property for council tax purposes.
Following an inspection of the property, the defendants were served with improvement notices, requiring remedial works to be completed by 16 September 2022.
The defendants were subsequently convicted in their absence at the magistrates’ court of a failure to comply with the improvement notices under section 30(1) of the 2004 Act. They were also convicted of related offences.
Each defendant received a fine of £2,500 for failing to comply with the improvement notices and was ordered to pay a £1,000 surcharge. For the other offences, the defendants were ordered to pay £11,233.50 and £11,000 respectively.
Neither defendant sought to appeal their conviction or sentence but the works required by the improvement notice remained incomplete.
Held: The claim was allowed.
(1) Section 2(1) of the 2004 Act defined a “hazard” as any risk of harm to the health or safety of an actual or potential occupier of a dwelling or a house in multiple occupation which arose from a deficiency in the dwelling or HMO or in any building or land in the vicinity.
“Category 1” hazards were more severe than “category 2” hazards. Where a local housing authority considered a category 1 hazard to exist, a duty to take appropriate enforcement action arose under section 5(1). Where a category 2 hazard existed, a power (but not a duty) to take enforcement action was conferred upon the local housing authority under section 7(1).
Under section 37 of the Senior Courts Act 1981, the High Court might grant a final injunction where “it appeared to the court to be just and convenient to do so”. Under section 222 of the Local Government Act 1972, a local authority might institute civil proceedings where it was considered “expedient” to do so “for the promotion or protection of the interests of the inhabitants of their area”.
(2) The jurisdiction under section 37 was to be invoked exceptionally and with great caution. There had to be something more than mere infringement of criminal law before the assistance of civil proceedings could be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area. The essential foundation for the exercise of the court’s discretion to grant an injunction was not that the offender was deliberately and flagrantly flouting the law but the need to draw the inference that the defendant’s unlawful operations would continue unless and until effectively restrained by the law and nothing short of an injunction would be effective to restrain them.
Generally, a local authority should seek to utilise criminal proceedings before invoking the assistance of the civil courts. However, a local authority might bypass criminal proceedings if the view was taken that the penalty available under the criminal law would not deter the conduct complained of: Stoke-on-Trent City Council v B&Q (Retail) Ltd [1984] 2 All ER 332, Wychavon District Council v Midland Enterprises (Special Events) Ltd (1986) 86 LGR 83 and City of London Corporation v Bovis Construction Ltd [1992] All ER 697 considered.
(3) In the present case, the claimant sought recourse via criminal proceedings before invoking the assistance of the civil courts. Both defendants were convicted for their failure to comply with the improvement notices.
Notwithstanding those convictions, the remedial works required by the notice remained outstanding. The defendants were in knowing and continuing breach of the criminal law; the clear inference was that their continuing breach was deliberate.
Further, the defendants’ disregard of the requirements of the improvement notice was causing the tenants to suffer unsatisfactory, and possibly unsafe, housing conditions, especially given the ongoing presence of category 1 hazards. This was a situation with potentially serious “real world consequences” for the tenants.
The disrepair of the property was also likely to be an actionable breach of both the express and implied terms of the tenancy agreement which was a “wrong” independent of the criminal law in any event. Furthermore, the unlawful conduct would continue unless and until restrained by an injunction, and nothing short of an injunction would be effective.
(4) It was clear that the criminal penalty had been ineffective to compel compliance with the improvement notice. This was not simply a case where it was speculated that the threat of prosecution would be ineffective, but one where the defendants had been convicted and yet were in continuing and knowing breach of the criminal law.
In addition to their lack of participation in the criminal proceedings, neither defendant had engaged meaningfully with the current proceedings. The defendants had therefore shown no intention to comply with the improvement notice. It was clear that their disregard of it would continue unless and until restrained by an injunction and that nothing else would be effective in ensuring their compliance. In those circumstances, it was both just and convenient to grant the injunctive relief sought.
(5) The claimant had been wholly successful in the claim and there was no reason to depart from the general rule in CPR 44.2(2)(a) to the effect that it should recover its costs in the sum of £4,005.56 which was proportionately and reasonably incurred and proportionate and reasonable in amount for the purposes of CPR 44.4(1)(a). The conduct of the parties was also relevant under CPR 44.4(3)(a); the claimant brought the claim in accordance with its public functions and for the benefit of the inhabitants of its administrative area, whereas the defendants declined to engage with the claim in any meaningful way.
Natalie Pratt (instructed by London Borough of Barking and Dagenham Legal Services) appeared for the claimant; the defendants did not appear and were not represented.
Eileen O’Grady, barrister
