Council tenancy — Agreement forbidding keeping of pets — Tenant keeping dog in breach of agreement — Possession order granted — Tenant not attending hearing — Whether fresh evidence to be adduced before Court of Appeal — Whether judge properly exercising discretion — Possession order upheld
Sheffield County Court granted the respondent council possession of a flat at 16 Brook Drive, Sheffield, which was one of a small block in which the appellant, Mr Green, had lived since 1978. He was a council tenant on a secure weekly tenancy and the tenancy agreement provided in the plainest terms that tenants were not allowed to keep pets on the premises. It provided on the form “I understand that I am not allowed to keep a cat, dog or other animals in the dwelling”. That was the regular policy of all council flats in Sheffield. The appellant tenant had kept a dog on the premises in breach of that covenant. At the proceedings the appellant was not present when the order for possession was made, but he later asked that the order be set aside on the ground that he was not given notice of the hearing. That submission was rejected.
At the appeal, the tenant sought an adjournment on the ground that the he had begun proceedings to enforce the right to buy a long lease. He also stated that a council officer had represented that he could keep the dog and that he had also been advised by a police officer to keep it in view of the fear then prevalent in the area of the Yorkshire Ripper. He wished to keep the dog for companionship and in view of its advanced age (now 16 years) he contended on appeal that it would be cruel to put it down.
Held The appeal was dismissed.
1. There was no current danger which warranted the keeping of the dog. However, that argument should have been put forward at the hearing of the March 7 1991, which the tenant had not attended. The admissible evidence rule for appeal purposes limited evidence to that which was not available at the time of the hearing.
2. In Sheffield County Council v Jepson (unreported February 2 1993) a claim was made for possession against a secure tenant, who had kept a dog in a council flat. The judge had refused to make the possession order in exercise of his discretion under Housing Act 1985, Schedule 2, Ground 1 and the council appealed to the Court of Appeal which held that the judge was wrong to refuse to make the order. Further, the court held that there was no principle that the council could only prove such a breach of condition as would justify the making of a possession order if they proved also that the keeping of the dog constituted a nuisance.
3. In Bell London & Provincial Properties Ltd v Reuben [1947] KB 157, it was stated that with regard to a covenant against keeping a dog without permission that it was only “in a very special case indeed that the court could properly refuse to give the landlord possession if a tenant broke that covenant and insisted on breaking it”.
4. The tenant had produced letters from other tenants, who had stated that the dog was a protection. However, that was a matter for the council to consider whether they should as a matter of mercy waive the breach, but was not a matter for the appeal court.
5. The judge had not heard the witnesses’ evidence with regard to the question of the desirability of keeping the dog as protection because it had not been put before him, as the tenant did not attend the hearing for possession. In those circumstances there was nothing the court could do.
Malcolm Green appeared in person; Ashley Underwood (instructed by the solicitor to Sheffield City Council) appeared for the council.
