The Pinnock effect

The Supreme Court's decision in Pinnock could have significant ramifications when it comes to development and regeneration, writes Emma Chadwick.

On 3 November the Supreme Court considered the issue of human rights in connection with an order for possession of residential property and held that possession orders might breach Article 8 (the right to a private and family life) if they were disproportionate to the circumstances in which possession was claimed. The interest in this case for housing lawyers is obvious but could there be an impact on local authorities, house builders, developers or perhaps even developing registered providers?

Mr Pinnock had previously had his secure tenancy demoted as a result of 32 allegations of serious misconduct towards his partner and children which breached the terms of his tenancy agreement. The behaviour complained of included blackmail, driving whilst disqualified and a racial Public Order Act offence. His landlord, the local authority, felt that the demotion order had not been a successful way to control his behaviour and sought possession on the basis of allegations of serious anti social behaviour. The County Court and Court of Appeal both held that the grounds for possession were made out, and that their role did not extend to considering whether Article 8 was engaged.

The Supreme Court held that, despite the statutory provisions which appeared to make it clear that possession would be a foregone conclusion where there was a breach of a demoted tenancy, the Court had the power whenever a local authority sought a possession order to consider whether seeking such an order was a proportionate remedy for the wrongdoing complained of. On the particular facts of the Pinnock case the Supreme Court held that the remedy was proportionate to Mr Pinnock's behaviour and upheld the possession order.

Implications for Development and Regeneration

1.    Registered Providers and Local Authorities

Although the Supreme Court noted that it would only be in exceptional circumstances that a tenant without any statutory or contractual right to possession would retain possession through Article 8, their decision showed that the Courts will consider Article 8 if it is raised as an issue. The fact that in the light of the serious behaviour of Mr Pinnock the Supreme Court were willing to consider whether he was entitled to argue breach of his human rights (to family life) should indicate how seriously the Courts take human rights arguments. Developers and registered providers need to consider how they might interact with tenants in such a way that these sorts of arguments will not affect their plans, particularly if the tenants in question are vulnerable.

Perhaps the most obvious way it might affect developments is where local authorities are seeking possession of residential units ready for redevelopment. The relocation of tenants during the decanting phase of any regeneration scheme might invoke these issues. Local authorities seeking possession where tenants are refusing to move to other accommodation that they are arguing is suitable for their needs may find themselves also having to justify to the courts that their regeneration plans are reasonable and that the need to relocate tenants is proportionate to the benefits to be gained by seeking possession.

This type of argument is also something that registered providers are likely to face in these circumstances in light of the recent line of cases which have held that registered providers can be susceptible to judicial review where they are carrying out local authority functions. It seems obvious that where registered providers are dealing with former local authority stock they will need to be prepared to meet this sort of argument.

There are ways in which local authorities and registered providers can prepare to counter these sorts of arguments. They will need to consider at a strategic level whether the interests of the new scheme and prospective benefits to be gained by new residents and the community at large can outweigh the needs of existing tenants who are to be moved. The key to success will be to document such a review and to be clear about the factors to be considered and the method of performing the review. Before possession proceedings are contemplated this exercise should be carried out in respect of individual lessees.

It is also possible that occupiers of mixed residential and commercial units might engage this argument. With purely commercial units, it can be relatively simple to obtain possession where there is an intention to develop as Article 8 arises in relation to an individual's home. With mixed use units, occupiers may also seek to engage Article 8 especially where they are living with a family in the unit, either lawfully where there is a mixed unit or in breach of the tenancy but with landlord's knowledge. A similar consideration of the need for possession of the unit as compared to the effect on the family unit as if this was a purely residential unit will usually be sufficient if documented as above. This is not considered to be a strong argument, but by making sure such a review of the circumstances is documented, local authorities and registered provider landlords can avoid having their decision to seek possession challenged in the basis that these considerations have not been taken into account.

2.    Developers and Housebuilders

This is generally only an issue that will affect public bodies and those performing the functions of public bodies. However where developers act in joint ventures with registered providers and local authorities they will also need to consider this issue. Developers and housebuilders cannot be subject to such a challenge themselves, but if their development partners are, it could have a significant delay on plans and at worst works. By the time that decanting and possession are considered and sought, works on site have usually commenced, even on site clearance but may be advanced in other parts of the scheme. The real impact of such a challenge are therefore likely to be financial.

Housebuilders and developers might protect themselves from such delays by making enquiries at the outset about the potential number of tenants engaged, whether any of those tenants are vulnerable, the process the local authority intends to follow and the factors it intends to bear in mind in deciding whether the needs of the existing tenants are outweighed by the other benefits so that the risk of a later challenge can be evaluated. This is not the sort of issue that will arise every day in regeneration schemes but is something that needs to be actively considered as part of the preparatory process.

Emma Chadwick is a partner and head of the property dispute resolution team at Winckworth Sherwood. She can be contacted on 020 7594 5095 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..