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Pemberton v. Southwark London Borough Council (2000) EGCS 56
This was a hearing of the preliminary issue of whether the appellant had a right to bring an action. The plaintiff was continuing to occupy council-owned property as a "tolerated trespasser", that is the council had obtained a possession order against her for non-payment of rent but this was not to be enforced for so long as the appellant paid £2.15 per week off the arrears and the current rent. In fact, the possession order in these terms was made in October 1992 but by November 1992 the appellant was already in breach of the order having failed to make the payments.
In October 1997 the appellant brought proceedings against the council alleging that the flat was infested with cockroaches from the common parts of the building in the ownership of the council. The council admitted the infestation but claimed that it had taken steps to eradicate the problem. Furthermore it claimed that the appellant had no cause of action because she was not a tenant at the relevant time and therefore had not sufficient interest in the flat to support an action in nuisance.
The court held that the policy reasons which had led to the creation of the special status of "tolerated trespasser" were insufficient to deprive the tolerated trespasser of all rights and remedies in trespass and nuisance. Although the council was under no obligation to repair the premises, that was no reason why they should not be obliged to conduct themselves so as not to create a nuisance from the remainder of the premises.
After consideration of Hunter v. Canary Wharf Ltd (1997) AC 655 the court held that as a tolerated trespasser the appellant still had exclusive occupation and possession of her flat. The council could not turn her out without obtaining permission to enforce their order for possession and executing a warrant for possession and instructing bailiffs to carry it out. The appellant would then have the right to try to persuade the court to take one of the options open to it under S.85 Housing Act 1985. In these circumstances the appellant did have sufficient interest in the premises to sustain an action in nuisance.