Swindon Borough Council v Redpath

The primary issue in this appeal relates to the meaning of “housing-related conduct” in section 153A(1) of the Housing Act 1996. In effect, was there a sufficient nexus between the local authority and its ex-tenant in respect of his anti-social behaviour against victims in the neighbourhood where he used to live so as to justify, in jurisdictional terms, the local authority’s continuing pursuit of a further anti-social behaviour injunction (“ASBI”) against its ex-tenant? “Housing-related” is there defined as follows:

““housing-related” means directly or indirectly relating to or affecting the housing management functions of a relevant landlord”.

The appellant, Michael Redpath, was born in 1951. He used to be a secure tenant of the respondent local authority, Swindon Borough Council (the “Council”). He had lived in a cul-de-sac known as Warneage Green in the village of Warnborough, near Swindon, in Wiltshire, for 48 years. Initially he had lived with his father at 11a Warneage Green. Following his father’s death he had succeeded to the secure tenancy of those premises on 30 December 1985. In March 1987 he had transferred to a smaller property at 2 Warneage Green, where he remained until his eviction in July 2006.

That eviction occurred in the following circumstances, essentially because of his abuse of alcohol and his inability to refrain from making a nuisance of himself when in drink. On 17 February 2003 Mr Redpath had been convicted at Swindon magistrates’ court for failing to provide a specimen for analysis and other driving offences. He was sentenced to six months in prison. A neighbour, Mr Johnson, who lived with his partner Ms Matthews in Shalagrin, a house on Warneage Green, had reported Mr Redpath to the police for driving when under the influence of alcohol. That led to his arrest and imprisonment, and it also started a feud which Mr Redpath directed against Mr Johnson and Ms Matthews. They were the owners of their home, not tenants of the Council.

Following Mr Redpath’s release from prison in May 2003, he pursued a campaign of harassment against the unlucky couple, including threats towards them and damage to their property. This in turn, as well as arrears of rent, led to a suspended possession order being granted against him on 18 July 2005.

Mr Redpath’s bad behaviour did not stop. On 24 October 2005 he was convicted at Swindon magistrates’ court of assaulting a Mr Coakes, the landlord of a pub in Warnborough, whom Mr Redpath blamed for requiring a former partner of his to pay for a broken car mirror. On 30 May 2006 he was convicted for acts of criminal damage at Shalagrin. This led to DJ Watkins lifting the suspension of the possession order on 27 June 2006. At the same time DJ Watkins of Swindon county court granted the Council its first ASBI which prohibited Mr Redpath from engaging in anti-social behaviour or entering Warneage Green. It was granted for a year, until 27 June 2007.

Thus Mr Redpath came to be evicted in July 2006. However, he did not comply with the first ASBI. On 30 September 2006 he was seen outside Shalagrin. On 9 October 2006 the first ASBI was varied to prohibit Mr Redpath from entering Warneage Green or any public house in the village of Warnborough. He was also forbidden from engaging in, or threatening to engage in, conduct which was capable of causing nuisance or annoyance to any person residing in Warneage Green and/or to any person engaged in lawful activity in, or in the neighbourhood of, Warneage Green. A power of arrest was attached.

Mr Redpath was not daunted. On 3 March 2007 he committed four acts of criminal damage: (i) he threw a stone through the window of a house at 5 Warneage Green where a Mrs Hayes lived as an owner-occupier (she had given evidence against him in relation to the first ASBI); (ii) he damaged Mr Johnson’s car; (iii) he damaged a car belonging to Mr Coake; and (iv) he damaged a car belonging to a Ms Jones, another resident of Warnborough. On 21 March 2007 he pleaded guilty to these four offences and was sentenced to eight weeks imprisonment. On 2 April 2007 he was committed to prison for eight months by a judge at Swindon county court for breaches of the first ASBI consisting in those four acts of criminal damage of 3 March. On the same date a new injunction, the second ASBI, was granted against him, on similar terms to the first, to remain in force until 1 April 2008.

Mr Redpath then kept himself clear from further offending or anti-social behaviour until almost the expiry of that second ASBI. However, on 28 March 2008 and on subsequent occasions he returned to Warneage Green and these visits gave rise to six further incidents, and ultimately to a third ASBI. The six incidents were as follows. (1) On 28 March he ripped a metal post-box from the wall of Shalagrin and used it to break the dining room window of the house. Ms Matthews gave evidence of her and Mr Johnson’s distress and annoyance. A local resident of Warneage Green, X, who wished to remain anonymous for fear of reprisal, a tenant of the Council, saw Mr Redpath at Shalagrin, shouting and swearing and drunk. She was fearful as to what he might do in the street. (2) On the same day Mr Redpath threw a brick through the windscreen of Mr Coakes’ car where it was parked outside his pub. This was the same car which had been damaged by Mr Redpath in the previous year. (3) On 29 April 2008 Mr Redpath telephoned the police (saying he was in Swindon) and threatened to kill Mr Johnson. He was very drunk and said he wanted to be arrested. When Ms Matthews and Mr Johnson learned of this threat, they regarded it as another attack on them. (4) On 7 May 2008 Mr Redpath was found asleep and drunk in a bus shelter in Warnborough. He was arrested for breach of bail conditions (imposed following his arrest on 17 April arising out of the events of 28 March). He said: “This is my village and no-one tells me to stay out of it.” (5) On 29 May 2008 Mr Redpath was seen in the vicinity of a block of garages which lay behind homes on the west side of Warneage Green. The garages belonged to the Council and were let to Council tenants who lived in Council flats in Warneage Green. These garages were also near to Shalagrin. Ms Matthews and Mr Johnson gave evidence that they felt intimidated by what they considered to be Mr Redpath’s continued campaign of stalking. (6) On 13 June 2008 Mr Redpath was in Warneage Green again. Robert Hayes (whose mother had given evidence against Mr Redpath in connection with the first ASBI, see above) observed him standing outside her house. He was drunk and abusive. He then went to stand outside Shalagrin, staring at it. The witness feared further damage being caused to Shalagrin.

As a result of these further incidents, on 30 May 2008 the Council sought to commit Mr Redpath for breach of the second ASBI (incidents (2) and (3)) and also relied on the succeeding incidents to seek a third ASBI, since the second had expired on 1 April. The matter initially came before HH Judge Wade on 23 June 2008. He fined Mr Redpath £100 for breaching the second injunction and granted a further, interim, injunction until 23 July 2008, the terms of which prohibited Mr Redpath from engaging in, or threatening to engage in, conduct capable of causing nuisance or annoyance to any person residing in Warneage Green. He was also prohibited from entering Warneage Green.

On 21 July 2008 Judge Wade granted the third ASBI in its final form. It is this ASBI which is the subject-matter of this appeal. Its material terms are as follows:

“1.

The Defendant is forbidden from engaging in, or threatening to engage in, conduct which is capable of causing nuisance or annoyance to any person residing in Warneage Green, Wanborough, Nr. Swindon or to any person engaged in lawful activity in, or in the neighbourhood of, Warneage Green, Wanborough, Nr. Swindon; and

2.

The Defendant is prohibited from entering, or being in, Warneage Green, Wanborough, Wiltshire.

3.

A Power of Arrest do be attached to both provisions of this Injunction.”

This third ASBI was to remain in force for three years, until 20 July 2011.

Evidence was given in the proceedings before Judge Wade by Ms Matthews and Mr Johnson (of Shalagrin), by Robert Hayes (the son of Mrs Hayes, another former neighbour in Warneage Green), and also by two anonymous residents of Warneage Green, X and Y. Their evidence was presented in hearsay form by the Council’s anti-social behaviour investigator, Mr Jeremy Law. X was a tenant of the Council. X gave evidence not only of incident (1) but also of the background of Mr Redpath’s abusive behaviour. X said that X’s family as a whole were fearful of Mr Redpath’s violent and threatening behaviour and X felt unable to be identified because of fear that X and X’s family would then become further targets of his behaviour. Y was another tenant of the Council and gave similar evidence. Y said that whenever Mr Redpath was in the area residents feared that he would repeat his violent and threatening behaviour which made people in the neighbourhood feel very uncomfortable about him.

Mr Law also gave evidence about the Council’s housing interests in Warneage Green. Notwithstanding the exercise by some former tenants of their “right to buy”, the Council continued to own 10 residential houses and in addition 4 flats in the road. It also owned the block of garages which were concerned in incident (5). There were other properties which the Council had sold on long leases, where it remained the freeholder.

In these circumstances, a question arose before Judge Wade as to whether, now that Mr Redpath had ceased to be a tenant of the Council, there was a sufficient nexus between Mr Redpath, his conduct, his victims and the Council, to enable the Council to say that there was jurisdiction within section 153A of the Housing Act 1996, which required the relevant conduct to be “housing-related”, to enable it to obtain its third ASBI. It will be recalled that the first ASBI had been obtained while Mr Redpath had still been a tenant, while the second ASBI had been obtained after he had been evicted. No issue of jurisdiction appears to have been raised on that second occasion. The first and second ASBIs had in fact been obtained under an earlier version of the ASBI legislation (that enacted by the Anti-social Behaviour Act 2003, see below), but it is not suggested that for relevant purposes (relating to the meaning of “housing-related”) the earlier version differed in any material way from the later.

Judge Wade was satisfied that there was a sufficient nexus on the ground that the past conduct had certainly been “housing-related” and all that the statute required was that Mr Redpath “has engaged” in such conduct (see section 153A(3) cited below). That was a point which he had made during argument on 23 June 2008. He then said –

“The words ‘has engaged’, it seems to me, do literally engage him…within this legislation. And I think that is the hook which the local authority is able to hang a new application for an injunction on.”

In his final judgment on 21 July 2008 he maintained but also broadened his reasoning, saying:

“3.

The defendant does not oppose the making of the order, although it is said that he reserves his rights as to jurisdiction. I am not quite sure what rights he might seek to assert in respect of that but I suppose he could do in relation to whether or not the Council is able to take these proceedings because of…what is called “housing-related conduct” in section 153A and whether the Council is bona fide exercising its housing management functions.

4.

I have to say, without wishing to re-open that debate to any extent at all today because I firmly stand by what I said on the previous occasion, that how it could be suggested that the Council were not exercising its housing management functions in relation at least to the incident on 29^th May [incident (5)] affecting garages which it owns, I cannot for the moment see, but there it is. I am not going to go into that save to say that I stand by all that I have said on the last occasion, and I believe that the court does have the appropriate jurisdiction.”

The current statutory provisions are contained in section 153A of the Housing Act 1996 (the “Act”), as follows:

“(1)

In this section –

“anti-social behaviour injunction” means an injunction that prohibits the person in respect of whom it is granted from engaging in housing-related anti-social conduct of a kind specified in the injunction;

“anti-social conduct” means conduct capable of causing nuisance or annoyance to some person (who need not be a particular identified person);

“conduct” means conduct anywhere;

“housing-related” means directly or indirectly relating to or affecting the housing management functions of a relevant landlord.

(2)

The court on the application of a relevant landlord may grant an anti-social behaviour injunction if the condition in subsection (3) is satisfied.

(3)

The condition is that the person against whom the injunction is sought is engaging, has engaged or threatens to engage in housing-related conduct capable of causing a nuisance or annoyance to –

(a)

a person with a right (of whatever description) to reside in or occupy housing accommodation owned or managed by a relevant landlord,

(b)

a person with a right (of whatever description) to reside in or occupy housing accommodation in the neighbourhood of housing accommodation mentioned in paragraph (a),

(c)

a person engaged in lawful activity in, or in the neighbourhood of, housing accommodation mentioned in paragraph (a), or

(d)

a person employed (whether or not by a relevant landlord) in connection with the exercise of a relevant landlord’s management functions.

(4)

Without prejudice to the generality of the court’s power under subsection (2), a kind of conduct may be described in an anti-social behaviour injunction by reference to a person or persons and, if it is, may (in particular) be described by reference –

(a)

to persons generally,

(b)

to persons of a description specified in the injunction, or

(c)

to persons, or a person, specified in the injunction.”

Section 153E contains supplementary provisions, in relevant part as follows:

It is common ground that: (i) the Council is a relevant landlord within section 153E(7)(b); (ii) Mr Redpath’s conduct in question is “anti-social conduct” within section 153A(1); (iii) such conduct concerns persons within section 153A(3)(a), (b) and (c). Thus, as for (iii), at least X and Y would come within subsection (3)(a), at least Mr Johnson, Ms Matthews, and Mrs Hayes and her family would come within subsection (3)(b), and at least Mr Coakes would come within subsection (3)(c). Of course there is no need to identify any particular person (see the definition of anti-social conduct in section 153A), and, on the witness evidence described above, it may be acknowledged that Mr Redpath’s conduct was capable of causing nuisance or annoyance to residents (and/or other persons in the neighbourhood engaged in lawful activity there) generally. It is also common ground that, if there was jurisdiction to have granted the third ASBI, then no issue of discretion arises.

What is in issue is whether the anti-social conduct concerned was “housing-related” within the meaning of section 153A(1), in other words whether that conduct could be described as “directly or indirectly relating to or affecting the housing management functions” of the Council. For the purpose of that question, we are told (section 153E(11)) that such functions “include” those conferred by any statute and the powers and duties of a landlord. That last definition is by its terms a non-exhaustive and inclusive definition.

On behalf of Mr Redpath, Mr Jan Luba QC submits that the conduct concerned did not, directly or indirectly, relate to or affect the Council’s housing management functions. For these purposes, it was irrelevant that in the past Mr Redpath had been a tenant of the Council. That was in the past. His conduct as a tenant could not be resurrected in order to give the court jurisdiction to grant a fresh injunction. The judge was therefore in error to have said that it was sufficient that Mr Redpath “has engaged” (see section 153A(3)) in such conduct in the past. That conduct had given rise to the first ASBI. It could not be resurrected in order to validate the third ASBI. (Mr Luba did not make clear his attitude to the second ASBI, but I suppose that it follows from the logic of his position that it was granted in error.) If, therefore, the third ASBI was to be jurisdictionally validated, new conduct, whether past or threatened in the future, had to be identified, and that conduct had to be “housing-related”. Otherwise the statute in section 153A(3) might just as well have left out the word “housing-related” and it would be possible to reach back an indefinite period into the past, and even when such past conduct had already been sanctioned by a previous, and expired, injunction. The question was one of jurisdiction because section 153A(2) said that an ASBI could be granted “if the condition in subsection (3) is satisfied” and that condition included the requirement of “housing-related” conduct, past or threatened.

As for that term “housing-related”, Mr Luba submitted, it was narrowly confined. All that section 153E(11) meant was that the Council’s housing management functions might be either statutory or contractual. It was concerned with their source, not with their content. Thus, such functions did not include, for instance, their educational functions. Moreover, the concept of “housing-related” entered into the statute both as a condition for granting an ASBI (section 153A(2) and (3)) and as a restriction on the conduct which could be prohibited (section 153A(1), which defines an ASBI as an “injunction that prohibits…housing-related anti-social conduct…”). Thus “housing-related” permeated the statute: only social landlords could seek an injunction; all victims must have some real connection with the neighbourhood or (in the case of section 153A(3)(d)) employment in connection with the landlord’s housing management functions; the conduct must be similarly connected as being “housing-related”; and the conduct prohibited must also be “housing-related”.

Various scenarios were considered by Mr Luba to illustrate his point. Conduct would not be housing related if people on a bus misbehaved, eg by threatening residents, when they were passing a council estate: they would just be passing by. Nor would it be enough that a defendant regularly allowed his dog to foul the foot-path outside a local authority tenant’s door, although the position might be different if activity of such a kind affected the tenant’s rent (which Mr Luba asserted it would not). It might be otherwise if permitting a dog to foul the street were against the provisions of a lease, as might be the case where it occurred within the confines of an estate owned or managed by a relevant landlord: but when dog-fouling simply occurred on the street, that was outside the statute. As for the example of bricks being put through windows, where the victims were owner-occupiers (or, presumably, tenants of other landlords), there was no jurisdiction (unless, I assume, the perpetrator was the tenant of the claimant relevant landlord). Even if the victim of such conduct was a relevant landlord’s tenant, there would be no jurisdiction unless the landlord had an obligation to repair the damaged premises. Thus if the repair obligation was on the victim tenant, there was no jurisdiction. In any event, the statute was concerned with conduct, not with its effects.

Mr Luba submitted that a narrow construction was also dictated by the fact that, where a relevant landlord could not obtain an injunction, it could seek an ASBO, an anti-social behaviour order, under the provisions of section 1 of the Crime and Disorder Act 1998 (the “1998 Act”). That did not require the element of conduct being “housing-related”. The relevant conditions for such an order are those set out in section 1(1) (see subsection (4), which requires proof of “the conditions mentioned in subsection (1)):

“(1)

An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely –

(a)

that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that has caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and

(b)

that such an order is necessary to protect relevant persons from further anti-social acts by him.”

Section 1(1B) defines relevant authority for the purposes of the ASBO as the council for a local government area, social landlords, and the police.

Mr Luba therefore submitted that it was undesirable and unnecessary to “indulge in parallel creativity” by the extension of the ASBI into the broader world of the ASBO, picking up a phrase (taken originally from a judgment of Hoffmann J as he then was) recently deployed by this court in Birmingham City Council v. Shafi and Ellis [2008] EWCA 1186, [2009] PTSR 503 at para 60. Just as in Shafi and Ellis it was thought undesirable in principle to deploy a common law injunction for public nuisance to cover the same ground as an ASBO, so it was undesirable and contrary to principle (even if the statute on its terms were just to be wide enough for jurisdiction to be obtained) to push the “housing-related” role of the ASBI (itself described in Shafi and Ellis at para 58 as being “in the housing context”) into the broader realms of the ASBO.

Viewed in this way, the six incidents which formed the basis of the Council’s pursuit of its third ASBI amounted to nothing at all in way of “housing-related” conduct. Mr Redpath was no longer a tenant of the Council. None of the main victims, such as the owners of Shalagrin, were tenants of the Council. None of the property involved was the Council’s, save for the block of garages, and Mr Redpath’s conduct there involved no victim and could not be described as “housing-related”. A fortiori, Mr Redpath’s use of a bus-shelter to sleep off his drink was not “housing-related”. Nor was the threat issued to the police. If the Council wanted to act in a policeman’s role, or as the district’s law enforcer, then the ASBO was the appropriate vehicle.

On behalf of the Council, Mr Andrew Arden QC submitted to the contrary. The jurisdiction was broad, and the statutory background to it to be found in earlier versions of the ASBI legislation, and the changes which resulted in the present section 153A, indicated that it was intended to be broad, and broader than jurisprudence on the earlier provisions had allowed it to be. He described Mr Luba’s approach as being too “landlord” oriented, and he wondered what it added to the ordinary powers of a landlord. He submitted that a local authority’s housing management functions were broad, certainly broader than its pure landlord function, and extended to its interest in the “well-being” of the neighbourhood where it performed such functions: see section 2 of the Local Government Act 2000. The break-up of a local authority’s large housing estates by reason of the right to buy made such powers and functions all the more important. In such circumstances, it was sufficient that Mr Redpath’s latest activities were intimidating to the Council’s tenants (X and Y), or concerned the Council’s property (the garages), or generally affected the well-being of the area in which the Council had housing responsibilities and accordingly a responsibility to look after their tenants’ welfare. It was irrelevant that Mr Redpath was no longer a tenant. On the contrary, if necessary to jurisdiction (but it was not), it was relevant that Mr Redpath had been a tenant, and that his latest bout of bad conduct was simply a continuation of what had occurred earlier. Indeed, in purely jurisdictional terms, the judge had been right to say (although again it was not necessary to the Council’s case on this appeal) that it was sufficient for purely jurisdictional purposes that Mr Redpath “has engaged” in housing-related anti-social conduct in the past (viz, when he had been a tenant).

Both parties referred to the history of the ASBI legislation to support their respective submissions. Mr Luba submitted that the early jurisprudence imposed a jurisdictional limitation which, upon subsequent amendment of the legislation, was written by Parliament into the statute. Mr Arden pointed to the redrafting of the legislation as being intended to broaden its jurisdictional scope.

Section 152 of the Housing Act 1996. ASBIs were introduced by the Housing Act 1996. Section 152 provided as follows:

“152.- (1) The High Court or a county court may, on an application by a local authority, grant an injunction prohibiting a person from –

(a)

engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises,

(b)

using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or

(c)

entering residential premises to which this section applies or being found in the locality of any such premises.

(2)

This section applies to residential premises of the following descriptions –

(a)

dwelling-houses held under secure or introductory tenancies from the local authority;

(b)

accommodation provided by that authority under Part VII of this Act or Part III of the Housing Act 1985 (homelessness).

(3)

The court shall not grant an injunction under this section unless it is of the opinion that –

(a)

the respondent has used or threatened to use violence against any person of a description mentioned in subsection (1)(a), and

(b)

there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted.”

Jurisprudence on section 152. A number of cases were decided under section 152 which raised the issue of what was meant by “or in the locality of such premises” under section 152(1)(a). Was the statute restricted to victims of anti-social conduct who resided in, visited or engaged in lawful activity in residential premises described in section 152(2), or did it extend to those who resided in, visited or engaged in lawful activity anywhere in the locality of the described premises? This court held that it was the former. Thus it did not encompass employees of the local authority who worked from housing offices in the neighbourhood of the authority’s social housing, nor did it encompass owner-occupiers: see Enfield London Borough Council v. B [2000] 1 WLR 2259, Nottingham City Council v. Thames [2002] EWCA Civ 1098, [2003] HLR 14, and Manchester City Council v. Lee [2003] EWCA Civ 1256, [2004] 1 WLR 349.

The first and thus leading case was Enfield. This court in the subsequent cases, with some reluctance, considered itself bound by Enfield (see for instance Nottingham at paras 5, 17/18 and 22, and Manchester at paras 24, 31, 40 and 44). The particular problem created by the 2000 version of the legislation, as it seems to me, was a combination of the following aspects of section 152: first, “The court shall not grant an injunction” unless the respondent to the proposed ASBI had used or threatened to use violence against a person of a description mentioned in section 152(1)(a) (section 152(3): I shall call that person the “victim”); secondly, the section was drafted so as to apply only in terms of residential premises as described (namely local authority premises); thirdly, the section appeared to refer to particular or specific such premises: namely either such premises where victims of the anti-social conduct lived, visited or engaged in lawful activity (section 152(1)(a)), or such premises which the respondent used for immoral or illegal purposes or which he entered or was found in the locality of (subsections (1)(b) and (c)) – provided of course in the latter two cases there was also a victim in terms of section 152(1)(a). Therefore the additional words in section 152(1)(a) – “or in the locality of such premises” – were left hanging in the air. What in such a case was the significance of “such premises”? Without identifying specific premises, it would seem that the potential victims were being extended indefinitely to almost anyone in the area of any local authority housing, eg to anyone residing or engaging in any lawful activity there, including owner-occupiers and any employees in the area.

This court in Enfield thought that such an extension was unlikely. Therefore it imposed a need for the victim to have some nexus or link to some specific premises within the section. Waller LJ put it in this way:

“the section clearly has in mind, as the judge decided, that there should be a nexus between the residential premises and the person who is sought to be protected by the subsection. So it has in mind peculiarly persons such as the milkman, the gasman, the water board officials as obvious examples” (at 2264A);

and Buxton LJ said this:

“Unless the Act assumes that there is a connection between the persons present in the locality and residential premises of a type that are protected by the Act, then these provisions would be unacceptable. It cannot be that Parliament intended these very strict provisions to apply to someone who is simply found in the locality of residential premises, unless his presence there had a connection with those premises” (at 2266A/B).

Therefore the victims had to be in some undefined sense more closely connected with some identifiable premises to which the statute applied. As Chadwick LJ put it in Manchester (at para 45):

“There must be some nexus between the activity in which the person is engaged and some identifiable residential premises within the locality of which the activity was taking place: see para 18 of Ward LJ’s judgment in the Nottingham case. It follows from Ward LJ’s judgment that the words must be construed as if they read, “otherwise engaging in a lawful activity in the locality of, and having connection with, such premises”. The words which I have introduced into the statutory language, “and having connection with”, are no more than a way of expressing the need to find some nexus between the activity and the identifiable residential premises.”

However, if he had not been bound by Enfield,Ward LJ in Nottingham would have decided that case differently:

“17…I would have applied a literal test and asked simply: was the threatened/assaulted person engaging in some lawful activity in the location of council housing? That is a question of fact…If the answer were in the affirmative, I would leave it to the good sense of the judge to decide whether the anti-social behaviour so affects the good management of the estate as to give the local authority sufficient interest to intervene and seek the court’s help in maintaining good order by granting an injunction backed by a warrant of arrest.”

Sir Martin Nourse agreed (at para 22).

Whatever might have been the true interpretation of the original version of this legislation, Parliament was to show that Ward LJ had been prophetic when he identified a broader purpose as possibly that which might have been in Parliament’s mind, namely one which spoke of a sufficient interest in good management of the estate or locality.

The Anti-social Behaviour Act 2003. Thus the Anti-social Behaviour Act 2003 repealed sections 152/153 of the Housing Act 1996 and enacted therein a new series of sections, sections 153A/153E. Although section 153A (but not sections 153B/E) was to undergo still further change into its present form by means of the Police and Justice Act 2006, which substituted the current section 153A set out above, it is common ground that the current concept of “housing-related conduct” was present in rationale, even if that precise expression had not yet appeared, in the following provisions of the 2003 Act:

“(1)

This section applies to conduct –

(a)

which is capable of causing nuisance or annoyance to any person, and

(b)

which directly or indirectly relates to or affects the housing management functions of a relevant landlord.

(2)

The court on the application of a relevant landlord may grant an injunction (an anti-social behaviour injunction) if each of the following two conditions is satisfied.

(3)

The first condition is that the person against whom the injunction is sought is engaging, has engaged or threatens to engage in conduct to which this section applies.

(4)

The second condition is that the conduct is capable of causing nuisance or annoyance to any of the following…” [and there then follows the four-fold list which has been repeated in the modern section 153A(3)].

(5)

It is immaterial where conduct to which this section applies occurs.”

It will be observed that jurisdiction to grant an ASBI is confined by the concept of conduct which directly or indirectly relates to or affects the housing management functions of a relevant landlord (section 153A(1)(b) and (3)). That is the same concept which is now defined by the expression “housing-related” (see the modern 153A(1) and the definition there of “housing-related” and the “condition” expressed in subsection (3)).

The 2003 version of the ASBI legislation constituted a complete reworking of the statute and, despite a further refinement of section 153A in 2006, remains, in its essence, the current version. Thus, (i) whereas section 152 only applied to local authority residential premises and only empowered a local authority to seek an injunction, the 2003 version is not limited to premises of any specific kind but rather, and merely, requires a victim who either has one of the defined relationships with “housing accommodation owned or managed by a relevant landlord” or is a “person employed (whether or not by a relevant landlord) in connection with the exercise of a relevant landlord’s housing management functions” (section 153A(3)). Moreover, a “relevant landlord” now extends beyond local authorities to embrace housing trusts and registered social landlords, any of whom can apply for an ASBI. (ii) Whereas Manchester (following the logic of Enfield) excluded the owner-occupier neighbour of local authority housing as a possible victim, section 153A(3)(b) specifically contemplates that victim protection may extend to “a person with a right (of whatever description) to reside in or occupy other housing accommodation in the neighbourhood of housing accommodation mentioned in paragraph (a)” (emphasis added). That must include owner-occupiers or indeed any tenants of a private landlord. (iii) Whereas section 152 as interpreted by Enfield excluded the possibility of relief in the case of a victim employee of a local authority’s housing department, section 153A(3)(d) specifically contemplates that victim protection may extend to such a person. (iv) Whereas section 152 was interpreted in Enfield as requiring some link between a person engaging in lawful activity and specific residential premises, that link has been broken by the wider language of section 153A(3)(c): the analysis intuitively preferred by Ward LJ at para 5 of Nottingham has borne fruit. (v) Whereas section 152 could only operate if the respondent “has used or threatened to use violence” (section 152(3)(a)), in which case an injunction could be granted prohibiting the respondent from conduct “causing or likely to cause a nuisance or annoyance” to relevant victims, a section 153A ASBI is available in respect of conduct which is merely “capable of causing nuisance or annoyance” (section 153A(1)(a) and (4)). (vi) No doubt in the light of Enfield and the other cases under section 152, it is emphasised (section 153A(5)) that it is “immaterial where conduct to which this section applies occurs”, provided that the conditions required by subsections (3) and (4) are met.

Thus not only was there a wholesale transformation of the terms under which an ASBI was obtainable, but the Enfield nexus or connection between a victim and identifiable (local authority) premises was broken. Mr Luba submits that the requirement of that nexus imposed by Enfield was retained, in language of equivalent effect, by the requirement of conduct directly or indirectly relating to affecting housing management functions of a relevant landlord. However, in my judgment, this is an entirely different condition. The Enfield link was between a victim and identifiable premises let by a local authority. The 2003 section 153A link is between conduct and the functions of a relevant landlord. Moreover, it 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 in section 153A(11).

Although the wording of the 2006 section 153A has been rearranged, all the broadening of the 2003 version has been retained, and the 2006 version has gone one stage still further, in emphasising (in the 2006 section 153A(4)) that victims need not be identifiable individually, and may be described generally. This is to meet the mischief that those who complained can be victimised all the more.

In my judgment, the broadening of the ASBI legislation in 2003 and 2006, especially in the face of the Enfield line of authority, is a clear pointer that, contrary to the views of this court in Enfield, but of course subject to the proper interpretation of what is meant by “housing-related” conduct (ie conduct which directly or indirectly relates to or affects the housing management functions of a relevant landlord) the jurisdiction is not to be regarded as a narrow, but a broad one.

A local authority’s housing management functions are themselves broadly expressed. Section 21 of the Housing Act 1985 provides:

“(1)

The general management, regulation and control of a local housing authority’s houses is vested in and shall be exercised by the authority and the houses shall at all times be open to inspection by the authority.”

Also relevant is section 111 of the Local Government Act 1972:

“(1)

Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.”

Moreover, section 2 of the Local Government Act 2000 (headed “Promotion of well-being”) grants local authorities power to promote the well-being of their area, thus –

“(1)

Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects –

(a)

the promotion or improvement of the economic well-being of their area;

(b)

the promotion or improvement of the social well-being of their area, and

(c)

the promotion or improvement of the environmental well-being of their area.

(2)

The power under subsection (1) may be exercised in relation to or for the benefit of –

(a)

the whole or any part of a local authority’s area, or

(b)

all or any persons resident or present in the local authority’s area.”

Moreover, section 153A itself indicates that, subject to its terms, it is clearly part of a relevant landlord’s housing functions to preserve the peace in the neighbourhood of its residential property by seeking ASBIs to restrain anti-social behaviour.

The width of a social landlord’s housing management functions has been illustrated in two recent authorities. In Raglan Housing Association Ltd v. Fairclough [2007] EWCA Civ 1087, [2008] HLR 21 this court had to consider whether ground 14 of Schedule 2 to the Housing Act 1988 (setting out statutory grounds for possession against an assured tenant) covered conduct even before the defendant had become an assured tenant. Ground 14 provides a ground for possession where –

“The tenant or a person residing in or visiting the dwelling-house –

(a)

has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b)

has been convicted of –

(i)

using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)

an indictable offence committed in, or in the locality of, the dwelling-house.”

This language reflects the language of section 152 of the Housing Act 1996.

Fairclough had been convicted of relevant offences in 2001/2004, while he lived with members of his family at 1 Banks Cottages and before he had become an assured tenant of 5 Banks Cottages in 2005. It was held that they provided the jurisdictional basis of a possession action in respect of 5 Banks Cottages in 2007. Moore-Bick LJ said (at 19):

“In my view it is helpful to begin by trying to identify the mischief at which ground 14 is aimed. I do not think there is much doubt about that: it is the presence within the locality of persons who have demonstrated by their previous behaviour that they are likely to annoy, intimidate, or otherwise make themselves a serious nuisance to other residents and thereby adversely affect the quality of life…Once it is accepted that those who have committed indictable offences in the neighbourhood where they live are to be regarded as liable to behave in a manner that is annoying or intimidating to their neighbours in future (as para.(b)(ii) assumes), one can see that there is no reason to think that parliament intended to restrict that paragraph to offences committed during the currency of the tenancy…It should be remembered that ground 14 merely contains a precondition (or as the judge put it a “hurdle”) to the exercise of the court’s power to grant possession…”

Akumah v. Hackney London Borough Council [2005] UKHL 17, [2005] 1 WLR 985 concerned section 21(1) of the Housing Act 1985 and section 111(1) of the Local Government Act 1972 (both cited above). The issue was whether Hackney had power to regulate and control parking on its estate under its housing management functions, without passing byelaws. It was held that it did. Lord Carswell (with whose speech Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed) said:

“21…It is not necessary, however, to construe section 21(1) so narrowly or to look for terms in tenancy agreements to provide a foundation for the power to operate parking control schemes. In my opinion the concept of management of a housing estate has to be construed rather more widely. There is a steady current of authorityin this direction in cases in the Court of Appeal, which I consider correct. In R v Ealing London Borough Council, Ex p Lewis (1992) 24 HLR 484…Lloyd LJ…and Woolf LJ…referred with approval to the statement by Lord Greene MR in Shelley v London County Council [1948] 1 KB 274, 286 that, taking into account the scope and policy of the Housing Acts, local authorities’ powers of management of housing accommodation should be construed “in the widest possible sense”.”

And at para 22 (p 933A) Lord Carswell said –

“I find no difficulty in accepting that safeguarding and improving that amenity and facilitating that access and enjoyment are proper functions of a council managing a council estate.”

Mr Luba would, I think, accept this analysis generally, at any rate as applying to “a council estate”. Nowadays, however, social housing has passed from local authorities into the hands of other social landlords, or directly into the ownership of former tenants who have exercised their right to buy. In place of homogeneous estates the terrain of social housing areas is more heterogeneous. I do not consider, however, that especially in the context of promoting well-being and keeping the peace between neighbours the powers and functions of a local authority should be artificially narrowed where the broad range of victims within the meaning of section 153A(3) are imposed upon.

Mr Luba submits that Swindon’s wider powers as a local authority to “police” its area for the purpose of obtaining ASBOs, for which purpose it does not have to meet any “housing-related conduct” condition, makes it unnecessary and undesirable to strain the boundaries of the narrower ASBI legislation. The ASBO provisions are to be found in the Crime and Disorder Act 1998 and in particular section 1 (cited above at para 23). For these purposes a relevant authority includes the council for a local government area (and other social landlords) as well as the chief officer of police of any police force maintained for a police area. Some of the principal differences between the ASBO and ASBI regimes are as follows: (i) an ASBO can be obtained against anyone over 10, whereas an ASBI can only be obtained against an adult; (ii) the breach of an ASBO entails criminal sanctions, whereas an ASBI remains a civil remedy, even if a power of arrest and relief by way of committal can be invoked; (iii) the condition of granting an ASBO is that the defendant “has acted…in a manner that caused or was likely to cause harassment, alarm or distress”, whereas the conduct that may trigger an ASBI is only such as is “capable of causing a nuisance or annoyance”; (iv) the standard of proof in the obtaining of an ASBI remains the civil standard, whereas the standard of proof in the case of an ASBO for the purpose of section 1(1)(a) of the 1998 Act is the criminal standard (see R (McCann) v. Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787); and of course (v) the detailed provisions of the ASBI which require “housing-related” conduct and specific classes of victims do not apply to the ASBO, whose only limitation on a victim is that he or she should not be “of the same household” as the defendant.

Mr Luba submits that in this respect he can pray in aid this court’s decision in Shafi and Ellis (see at para 24 above). The question in Shafi and Ellis was whether a common law injunction in aid of the criminal law or on the basis of an alleged public nuisance could be obtained by a local authority in circumstances which would entitle the authority to obtain an ASBO but where the local authority nevertheless sought to avoid the requirements of the ASBO regime, including that of the criminal standard of proof, by moving for a common law injunction (but not, it needs to be said, an ASBI) instead. The judge said that he had no jurisdiction to entertain the pursuit of the common law injunctions. This court disagreed, and concluded that he did have jurisdiction, but that as a matter of the principled exercise of discretion, he should have left the local authority to its primary statutory remedy, of the ASBO, and should not, save perhaps in an exceptional case, “indulge in parallel creativity by the extension of general common law principles” (see at paras 60/63).

I can see no assistance for Mr Luba in Shafi and Ellis. We are not concerned with an attempt to extend common law principles, but with the question of whether the facts of this case come within the statutory regime of the ASBI. On certain facts it may be that a local authority has a choice between an ASBI and an ASBO, and if that is a genuine choice, I do not see why it cannot choose which it prefers, at any rate so far as jurisdiction is concerned. As for matters of discretion, however, the difference between the regimes may well enter into the argument. However, there has been no attempt here to show that this is a case more properly relevant to the ASBO regime. Moreover, Shafi and Ellis did not deny jurisdiction on the ground of the undesirability of “parallel creativity”. On the contrary, the court there was satisfied about jurisdiction. I do not understand therefore how Mr Luba seeks to derive support from that authority.

The question remains whether Mr Redpath’s conduct, taken as a whole, was “housing-related”, viz directly or indirectly relating to or affecting the Council’s housing management functions. It seems to me that intuitively those functions embraced concern for its tenants and property (including its garages) in Warneage Green: and a fortiori in circumstances where the threat to them came from a former tenant, and not serendipitously so but as part of a continuing campaign by him against his neighbours, whether themselves tenants of the Council or owner-occupiers or even persons, like Mr Coakes, who worked in the area. As Mr Redpath said: “It’s my village”. It could only be upsetting and unsettling for residents in Warneage Green, all of which at one time had been in Swindon’s estate, that he should haunt and harass the area.

In my judgment, it would be most unfortunate if, having brought an end to Mr Redpath’s tenancy because of his anti-social conduct, Swindon was then powerless under its housing management functions to protect his former neighbours, who include Swindon’s present tenants, from his continuing campaign of intimidation. I can find nothing in the language of Swindon’s housing management functions as a local authority, or in the modern version of section 153A, to lead me to that unhappy conclusion. Nor do I find anything in the history and background of what in now the 2006 section 153A, as for instance in the line of cases starting with Enfield, to suggest that the modern statute has to be limited in some way beyond its express wording or given a narrow rather than a broad interpretation.

In effect, Mr Luba seeks to say that the critical factor is that Mr Redpath was no longer a tenant at the time of his latest bout of anti-social conduct. However, there is no requirement in the statute that a respondent be a tenant of the local authority. Mr Luba seeks to say that it is irrelevant to the Council’s housing management functions that (at any rate some of) the victims, and in a sense the primary victims, were owner-occupiers. However, that is not an impediment to the obtaining of an ASBI, as section 153A(3)(b) makes clear, provided of course that the conduct in question is housing-related. It seems to me, however, to be clear that the Council’s proper concern for at the very least its tenants, X and Y, makes Mr Redpath’s conduct housing-related. Given the distress that those witnesses speak to, I can see no difficulty in viewing Mr Redpath’s haunting of a bus shelter or of the Council’s garages, which are let to its tenants in Warneage Green, as housing-related conduct.

That seems to me to be the case even if I view Mr Redpath’s conduct piecemeal. In my judgment, however, it is not to be viewed piecemeal, but as a whole. Viewed as a whole, I consider that the Council’s housing management functions easily embrace its sense of responsibility to its continuing tenants and also to owner-occupiers in Warneage Green for the conduct of its former tenant, Mr Redpath, who has pursued his vendetta against his former neighbours irrespective of the loss of his tenancy.

In this connection, I do not accept Mr Luba’s submissions that a local authority would not be acting within its housing management functions if it sought an ASBI to prevent dog-fouling in the vicinity of its tenants’ front-doors, irrespective of whether that might or might not affect their rent. Nor does it seem to me to matter whether such fouling takes place on the street, but so as to annoy the authority’s tenants, as distinct from within the confined boundaries of a local authority’s housing estate. Nor do I accept his submissions about the limited circumstances in which there would be jurisdiction where the defendant to be injuncted puts a brick through someone’s window. It seems to me that where, as here, such conduct puts any of the landlord’s tenants in fear, there is jurisdiction.

Finally, it is well worth remembering that in this case we are only concerned with jurisdiction. What may be an appropriate response of a court in exercising its discretion, where it has jurisdiction, may depend on all the circumstances of the case. I can see no virtue however in confining the jurisdiction of section 153A narrowly. On the contrary, the history of this legislation indicates to my mind that Parliament intended to give this regime a broad coverage.

For that reason, ultimately I would agree also, but it is not necessary to my reasoning as a whole, with the judge when he said that it was sufficient that Mr Redpath “has engaged” in the past in housing-related conduct, viz when he was a tenant. Even Mr Luba would agree that such past conduct was housing-related when it occurred: what he says is that it is nevertheless irrelevant, water under the bridge as it were, where that conduct preceded an expired injunction. To support, as a matter of jurisdiction, the latest injunction, he submits that there has to be entirely fresh conduct. I do not agree. It is rather like Raglan, even though the other way around. His past conduct remains potentially relevant: it was on any view housing-related conduct at the time, and it sets up the jurisdiction. What its impact may be several years later is another matter, but that goes to the merits of the court’s discretion. There is no issue in this appeal about such merits. On the facts it is easy to see that the conduct in the past is all of a piece with the conduct in the present.

For these reasons, I would dismiss this appeal. Furthermore, I have read in draft the judgment of Lord Neuberger of Abbotsbury, and I agree with it.

I agree with Rix LJ that this appeal should be dismissed for the reasons which he gives. I would like, however, very briefly to deal with what seem to me to be the two main points of importance on this appeal, which raises a challenge to the power of the court to have granted the ASBI made by His Honour Judge Wade on 21 July 2008.

Section 153A(2) and (3) of the Housing Act 1996 empower the court to grant an ASBI against a person who "is engaging, has engaged or threatens to engage in housing-related conduct capable of causing a nuisance or annoyance" to one or more persons falling within paragraphs (a) to (d) of subsection (3). The main issue between the parties to this appeal focusses on the effect of the definition of the expression "housing-related" in section 153A(1) of the 1996 Act. This, the first point I should like to deal with, involves considering the acts of the appellant between March and June 2008 described by Rix LJ in [8]. There is also a dispute as to the effect of the words "has engaged", which requires consideration of the relevance of the appellant's earlier acts.

So far as the meaning of "housing-related" is concerned, it is clear from the definition itself, including as it does both "directly and indirectly" and "relating to or affecting", that it is intended to have a broad sweep. It also appears to me that, in the light of the word "include" (which contrasts with "means" in section 153A(1) of the 1996 Act), the provisions of section 153A(11) of the 1996 Act, which are concerned with the housing management functions of a relevant landlord, should not be treated as being exclusive.

In my view, particularly when taken together and viewed against his earlier behaviour, described by Rix LJ in [3] to [7], the acts for which the appellant, Mr Redpath, was responsible between March and June 2008 did amount to "housing-related conduct" justifying the making of the ASBI in July 2008. It may well be that reliance could have been placed on the point thatthe acts, when taken together and in the context of the earlier behaviour, could well have had the effect of causing one or more of the tenants of the respondent, Swindon Borough Council, to consider vacating their accommodation, but that was not a point which was debated in any detail, and I would be unhappy about relying upon it without further argument.In any eventthe acts, when taken together and viewed in the light of the appellant's earlier behaviour, could have been relied upon by such tenants as an arguable reason for a reduction in their future rent, or for a lower increase in their rent on any review. It should be emphasised that I am not saying that any such argument would succeed; indeed, it appears to me that such an argument would normally only have a real prospect of success where the acts of nuisance or annoyance have been significant and frequent, and are likely to continue. However, absent an ASBI, those conditions appear to me to be satisfied on the facts of this case. Further, and this may be putting the samepoint another way, I consider that, again viewed as a whole and in the light of his earlier behaviour, the acts of the appellant between March and June 2008 affected those living within the immediate area in which they were committed in a way and to an extent which fell within the ambit of being 'housing-related conduct". Mr Redpath's persistent and offensive conduct made the area less desirable and attractive to live in, especially to residents to whom at least some of the acts were directed. It is true that some of the residents to whom the conduct was directed were not tenants of the respondent, but there is no doubt that there were such tenants, whose peace and enjoyment in their homes not merely could have been, but was detrimentally affected, to a significant extent and for a significant time, by that conduct, and that this detrimental affect would be likely to be ongoing unless an ASBI (or, it is fair to add, some other form of appropriate relief) was granted.  In any event, it is hard to see how the appellant's haunting of the garages let to the respondent's tenants could not have been housing-related; on its own, it might very well be insufficient to found an ASBI, but, taken with the other behaviour, it would in my view suffice.

As to the argument that the appellant had ceased to be a tenant of the respondent, or even to live in the vicinity, when the acts of March to June 2008 were committed, it seems to me that there is nothing in it. As already mentioned, section 153A is concerned with "conduct" which is "housing-related".  Such 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. No doubt, in many, possibly the great majority, of cases in which an ASBI is sought, the respondent lives or works in the area, indeed in the property, in which the conduct complained of occurs, but that is not in point.

I turn to the second question: could the ASBI in this case be justified solely by reference to the appellant's behaviour before the second ASBI was granted on 2 April 2007, as mentioned in [7]? If nothing whatever had happened after 2 April 2007, I rather doubt that it would have been open to the court to grant a further ASBI after that granted on 2 April 2007 expired on 1 April 2008. I appreciate that section 153A(3) of the 1996 Act refers to "has engaged" as well as "is engaging" and "threatens to engage", but it seems to me that that was included to deal with the possibility that, by the time the application for an ASBI is made or heard, the conduct has stopped, and there is no immediate threat of resumption. But, where the evidence supporting an application for a second ASBI is identical to that which supported an earlier successful application for an ASBI, I am unconvinced that it would be right for the court to grant a second ASBI. However, I do not consider it necessary or appropriate to rule on that issue.

It is unnecessary to rule on that issue for this reason. Assume, contrary to the view formed by this court, that none of the acts committed between March and June 2008 were capable of constituting "housing-related conduct". Even on that assumption, it seems to me that, on the rather unusual facts of this case, it was open to the Judge to rely on the earlier behaviour (as described in paras [3] to [7]) as constituting such conduct, and to hold that the acts committed in March to June 2008, even if they themselves did not amount to such conduct, justified the making of an ASBI. Indeed, it could be said that, viewed in the context of his earlier behaviour, these more recent acts amounted to a threat to commit such conduct.

Finally, I would add this. It is plain from the legislation referred to by Rix LJ, and indeed to anyone in this country who keeps up with the news, that the legislature is very concerned about anti-social behaviour, and is keen to take steps, and to empower others to take steps, to discourage and prevent such behaviour. It would, of course, be wrong to interpret legislation such as section 153A of the 1996 Act in an artificially wide or impractical way or so as to be oppressive to those who are alleged to be behaving offensively: even if they are behaving offensively, such persons have rights as well. However, it would be at least equally wrong to interpret such legislation in a way which is artificially restrictive or which discourages or disempowers responsible and considerate landlords from taking proportionate steps in appropriate cases to protect their tenants, who will normally have very limited resources and limited access to legal advice, and indeed who will often be scared of taking action, from abusive behaviour. In my opinion, our conclusion and reasoning in this case accords with the purpose of the legislation and properly acknowledges the factors I have mentioned.

I agree with both judgments.