Landlord and tenant — Statutory nuisance — Whether steep staircase a statutory nuisance under Part III of Environmental Protection Act 1990 — Whether likelihood of personal injury sufficient to make steps a statutory nuisance
Since
September 1994 the applicant held a tenancy of a house on two floors, with a
steep internal staircase. She suffered from a back injury and feared she might
fall on the stairs and injure herself. In December 1996 the respondent council,
who served an abatement notice in February 1994 under the Environmental
Protection Act 1990 requiring the applicant’s landlord to replace the
staircase, informed the applicant that the staircase could not be considered a
statutory nuisance and that the notice would be withdrawn. The applicant sought
judicial review of that decision.
of giving rise to a statutory nuisance within section 79(1)(a) of the 1990 Act.
The statutory regime is not intended to apply to cases where the sole concern
is that, by reason of the state of the premises, there is a likelihood of an
accident causing personal injury. There was nothing to suggest that the
statutory powers were intended to protect against the dangers of accidental
physical injury. The council had not acted irrationally in deciding that the
staircase did not give rise to a statutory nuisance. Even if the staircase was
capable of being a statutory nuisance, the council were entitled to withdraw
the abatement notice.
The following
cases are referred to in this report.
Coventry
City Council v Cartwright [1975] 1 WLR 845;
[1975] 2 All ER 99; (1975) 73 LGR 218, DC
Cunningham
v Birmingham City Council [1998] Env LR 1
Great
Western Railway Co v Bishop (1872) 7 LR QB
550
R v Greater Manchester Coroner ex parte Tal [1985] QB
67; [1984] 3 WLR 643; [1984] 3 All ER 240, DC
R v Ireland [1998] AC 147, HL
Salford
City Council v McNally [1976] AC 379; [1975]
3 WLR 87; [1975] 2 All ER 860; (1975) 73 LGR 408, HL
Southwark
London Borough Council v Ince (1989) 21 HLR
504
This was an
application by Sandra Everett seeking judicial review of a decision by the
respondents, Bristol City Council, to withdraw an abatement notice served under
Part III of the Environmental Protection Act 1990.
Martin
Westgate (instructed by Bobbets Mackan, of Bristol) appeared for the applicant;
Ranjit Bhose (instructed by the solicitor to Bristol City Council) represented
the respondents.
Giving
judgment, RICHARDS J said:
Since September 1994 the applicant has been the tenant of premises at 14
Bannerman Road, Eaton, Bristol (the property). The property is a house
constructed in the late 19th century, on two floors, with a steep internal
staircase. The applicant suffers from a back injury and experiences difficulty
in negotiating the stairs. She fears that she may suffer a fall on them and
thereby injure herself. It is said on her behalf that the staircase gives rise
to a statutory nuisance under Part III of the Environmental Protection Act 1990
(the 1990 Act). At one point the respondent council appeared to be of that
view. In February 1994, before the commencement of the applicant’s tenancy,
they served an abatement notice under Part III on the landlord, Solon South
West Housing Association (Solon), requiring the existing staircase to be taken
out and a new staircase to be constructed. The notice was not, however,
enforced. On December 9 1996 the council informed the applicant that the
staircase could not be considered a statutory nuisance and that the notice had
therefore been incorrectly served and would be withdrawn. In these proceedings
for judicial review the applicant challenges the decision to withdraw the
notice. The challenge gives rise to a number of issues:
(1) Where
premises are in such a state as to create a likelihood of accident causing
personal injury, do they thereby constitute a statutory nuisance within section
79(1)(a) of the 1990 Act?
(2) Did the
steep staircase in this case cause the property to constitute a statutory
nuisance?
(3) Were the
council entitled to withdraw the abatement notice that they had served in
respect of the property?
(4) Should
relief be refused in any event on discretionary grounds?
Before
considering those issues, it is necessary to examine in greater detail the
legislative framework and the factual background.
Legislative
framework
Part III of
the 1990 Act contains procedures for dealing with statutory nuisances. The
matters constituting ‘statutory nuisances’ for the purposes of Part III are
defined in section 79(1) as including ‘(a) any premises in such a state as to
be prejudicial to health or a nuisance’. By section 79(7), ‘prejudicial to
health’ means ‘injurious, or likely to cause injury, to health’. Other matters
constituting statutory nuisances include smoke, fumes, dust, accumulations or
deposits, animals and noise, in each case where prejudicial to health or a
nuisance.
By the
tailpiece to section 79(1), every local authority is under a duty to inspect
their area for, and to investigate complaints about, statutory nuisances.
Section 80(1) provides that:
Where a local
authority is satisfied that a statutory nuisance exists, or is likely to occur
or recur, in the area of the authority, the local authority shall serve a
notice (‘an abatement notice’) imposing all or any of the following
requirements —
(a) requiring
the abatement of the nuisance or prohibiting or restricting its occurrence or
recurrence;
(b) requiring
the execution of such works, and the taking of such other steps, as may be
necessary for any of those purposes,
and the
notice shall specify the time or times within which the requirements of the
notice are to be complied with.
The person
served with an abatement notice may appeal against it to the magistrates’ court
within 21 days from date of service: section 80(3) and Schedule 3, para 1. A
person on whom an abatement notice is served is guilty of an offence if,
without reasonable excuse, he contravenes or fails to comply with any
requirement or prohibition imposed by the notice: section 80(4). A person who
commits such an offence is liable on summary conviction to a fine: section
80(5) to (6).
In addition to
the service of an abatement notice by the local authority, there exists a
separate and parallel procedure for summary proceedings by persons aggrieved by
statutory nuisances. By section 82(1), a magistrates’ court may act on a
complaint made by any such person. Before a complaint is laid, the person
aggrieved must give notice, generally not less than 21 days, to the proposed
defendant: section 82(6). If the court is satisfied that the alleged nuisance
exists, or that, although abated, it is likely to recur on the same premises,
the court is required to make an order requiring the defendant to abate the
nuisance and/or prohibiting a recurrence of the nuisance: section 82(2). It may
also impose a fine on the defendant. Contravention of any requirement or
prohibition imposed by an order of the court is an offence exposing the
offender to liability to a fine on summary conviction: section 82(8).
Facts
In January
1994 Ms Fiona Mulcahy, one of the council’s environmental health officers,
concluded that the property constituted a statutory nuisance because of the
steepness of the staircase. The existing tenant had fallen at least once on the
stairs. An abatement notice was served on Solon on February 21 1994 specifying
that the nuisance arose from ‘excessively steep stairs within the property’ and
requiring Solon to take out the existing staircase and to construct a new
staircase in a suitable position and complying with current building
regulations.
On July 11
1994 Ms Mulcahy wrote to Solon confirming that as the property was now
unoccupied the nuisance no longer existed. The letter continued:
As mentioned,
I met the Building Control Officer at the property to discuss the staircase and
any options available. It was decided that due to the internal layout it would
not be possible to alter the staircase without changing the entire layout of
the property.
Due to the
financial implications such a scheme would involve, I am prepared not to
enforce the provisions of the Environmental Protection Act Notice of 21st
February 1994, provided that Solon are careful in the selection of prospective
tenants for this property. It is clearly unsuitable for anyone with small
children or anyone with mobility difficulties or disabilities.
I would
suggest that it is pointed out to prospective tenants viewing the property that
the stairs is inordinately steep. Although the notice is not being enforced at
present, should any future tenants experience similar difficulties using the
stairs as the previous tenants, it may be deemed necessary to serve Notice
again.
The applicant
became the tenant of the property on September 30 1994. She viewed the property
before accepting it and was plainly aware of the steepness of the staircase. It
appears that at that time she was in good health and, although she found the
staircase steep, she was able to cope with it. Subsequently, however, she
sustained a back injury at work that affected her mobility. As a result, she
now finds the staircase difficult to negotiate. At some point after moving into
the property she was joined by her young son, who is about 10 years of age.
In February
1995, following a complaint by the applicant, one of the council’s
environmental health officers told her that remedial works were not practical.
In March 1996, following a further complaint, the premises were examined by
another officer, Mr Richard Tacagni. He, too, explained that no enforcement
action could be taken, but, by letter dated April 1 1996 to Solon, he advised
the provision of a handrail to the top section of the staircase in order to
help improve safety. That work was subsequently carried out.
Later in the
year the matter was taken up by solicitors on behalf of the applicant. This
prompted a letter dated December 9 1996 from Mr Tacagni in these terms:
I have now
obtained advice from the City Council’s Legal Division concerning the validity
of the Section 80 Environmental Protection Act 1990 Notice dated 21st February
1994. It would seem that in these circumstances an ‘excessively steep
staircase’ cannot be considered a statutory nuisance. The notice was therefore
incorrectly served and will now be withdrawn.
What lay
behind that letter is explained to some extent in the affidavit of Mr Dale
Collins, the solicitor in the council’s corporate services legal division, who
advised on the matter. He did not, it would seem, advise that a steep staircase
could never constitute a statutory nuisance. Indeed, his affidavit
expressly accepts on behalf of the council that an inherent defect such as an
excessively steep staircase may in specific circumstances constitute a
statutory nuisance. He states, however, that it was his view:
that in the
circumstances as outlined to me the staircase was not ‘inherently detrimental’
and did not fall within the definition of ‘prejudicial to health’ contained
with Section 79 of the Environmental Protection Act as being ‘injurious, or likely
to cause injury to health’, nor was it a nuisance as it only affected the
person occupying the premises. (Original emphasis.)
On December 11
1996 the applicant’s solicitors sent the council a copy of a report prepared by
Mr Roger Head, a housing and environmental consultant. Mr Head stated in his
report that the narrowness of the treads and the steep pitch of the staircase
at the property presented an increased risk of falls. That, together with other
problems that he had identified at the property (damp conditions in the hallway
and noise nuisance), caused him to conclude that the property constituted a
statutory nuisance. The council, however, adhered to their position. The
applicant then brought these proceedings for judicial review.
Following the
commencement of the proceedings, Mr Tacagni revisited the property on April 22
1997 to take detailed measurements and notes on the condition of the staircase.
His report following that visit accepts that the treads are narrower and the
pitch is greater than recommended in current building regulations, though it
also points out that those regulations do not apply since the staircase was
constructed long before they came into force. The report goes on:
In support of
the staircase, it does benefit from good natural lighting … the stair carpet is
in good order and there is a handrail positioned as recommended in the building
regulations. For this reason, I do not think there is likely to be an accident
when someone uses the staircase. I do not consider the staircase to be a
statutory nuisance.
Mr Tacagni has
sworn an affidavit in these proceedings in which he sets out the relevant
history and confirms his view that the staircase at the property does not give
rise to a statutory nuisance. He states that the abatement notice should not
have been served and that ‘if the matter came before me today no such action
would be taken’.
Mr Head also
revisited the property, together with Ms Rachel Court, an environmental health
consultant. At the beginning of September 1997 they produced a joint report
containing a detailed analysis of the problems with the stairs and a risk
analysis. The report states, by way of general comment, that the stairs at the
property are unsafe and present an unacceptable risk of injury, such that it is
considered likely that a user will trip or fall and be injured as a result. The
report concludes that the condition of the property is prejudicial to health
and therefore a statutory nuisance by reason of the unsafe stairs. Both Mr Head
and Ms Court have sworn affidavits confirming their report and its conclusion.
In an affidavit in response, Mr Tacagni takes issue with some of the statements
of fact and opinion in the Head/Court report, as well as with its conclusion.
Issue (1):
Is the situation capable of giving rise to a statutory nuisance?
I turn to
consider the first issue: where premises are in such a state as to create a
likelihood of accident causing personal injury, do they thereby constitute a
statutory nuisance within section 79(1)(a) of the 1990 Act? The issue, so
expressed, is one of principle, separate from the question of whether the
condition of the staircase in this particular case is likely to give rise to an
accident and thereby to cause personal
that, as I have already mentioned, the evidence filed on behalf of the council accepted
that an excessively steep staircase is capable of giving rise to a
statutory nuisance. The issue was, however, raised on behalf of the council in
Mr Ranjit Bhose’s skeleton argument and oral submissions before me. If those
submissions are well founded, the council are entitled to the benefit of the
point even though reliance was not placed upon it previously.
In the
circumstances it is convenient to summarise the submissions on behalf of the
council first, before turning to the applicant’s submissions and then setting
out my conclusion on the issue.
Council’s
submissions
Mr Bhose
submitted that section 79(1) of the 1990 Act does not contemplate physical
injury caused by an accident. The focus of ‘prejudicial to health’ and the
related definition, ‘injurious, or likely to cause injury to, health’, is
injuriousness to health. That phrase, and in particular the use of the
word ‘health’, comprehends some significant departure, caused by disease or
vermin or the like, from an identifiable condition relating to the ongoing good
health or well-being of the individual. Premises that are ‘prejudicial to
health’ are to be distinguished from those in a dangerous state such that there
is a likelihood of personal injury caused by an accident. The subsection
contemplates the case where injury results simply from a person’s exposure to
the premises in their current state (eg the presence of mould contributing to
asthma or a respiratory infection). It does not contemplate injury resulting
from an accident in the course of use of the premises (eg tripping or being hit
by a falling ceiling).
In support of
those submissions, reliance was placed first on the legislative history. The
relevant statutory language can be traced back to the mid-19th century. In a
temporary Act of 1846, ‘for the more speedy Removal of certain Nuisances’,
provision was made for certain public officers to lay a complaint before
justices of the peace upon receipt of a certificate in writing, in prescribed
form and signed by two medical practitioners, ‘of the filthy and unwholesome
Condition of any Dwelling House or other Building, or of the Accumulation of
any offensive or noxious Matter, Refuse, Dung, or Offal, or of the existence of
any foul or offensive Drain, Privy, or Cesspool’. The prescribed form of
certificate required the medical practitioners to certify that such a condition
existed ‘and that the same is likely to be prejudicial to the Health of
the Occupiers, or of the Persons whose Habitations are in the Neighbourhood of
the above-mentioned Premises’ (my emphasis).
The Act of
1846 was renewed and amended by the Nuisance Removal and Diseases Prevention
Act 1848. Although the detailed procedures were altered, the substantive
language remained much the same. For example, reference is made to ‘any
Dwelling House … [that] is in such a filthy and unwholesome Condition as to be
a Nuisance or injurious to the Health of any Person …’. The 1848 Act was
amended in turn in 1849 and then consolidated with further amendments in the
Nuisances Removal Act 1855. By section 8 of the 1855 Act, ‘nuisances’ were
defined as including ‘Any Premises in such a State as to be a Nuisance or
injurious to Health’. The same language was carried through in a further
consolidating statute, the Public Health Act 1875. Then the Public Health Act
1936, yet another consolidating statute, introduced the minor changes that
brought the language precisely into line with section 79(1) of the 1990 Act. By
section 92(1)(a) of the 1936 Act, ‘statutory nuisances’ were defined as
including ‘(a) any premises in such a state as to be prejudicial to
health or a nuisance,’ and by section 343(1) ‘prejudicial to health’ was
defined as ‘injurious, or likely to cause injury, to health’.
Reliance was
placed, second, on a line of legislative provisions in which a distinction is
drawn between ‘dangerous’ buildings and those that are ‘defective’. The
provisions of the Public Health Act 1936 to which I have just referred were
contained in Part III of that Act. Part II, and specifically section 58,
contained separate provisions empowering a local authority to take action where
it appeared to the authority that ‘any building or structure, or part of a
building or structure, (a) is in such a condition … as to be dangerous
to persons in the building …’ (my emphasis). Section 24 of the Public Health
Act 1961 made detailed amendments to those provisions and section 25 conferred
on local authorities enlarged powers to take emergency measures to deal with
dangerous buildings. Section 26 of the 1961 Act, on the other hand, enlarged
the powers of local authorities in relation to defective premises: where
it appeared to a local authority that any premises were in such a state (referred
to in the section as a ‘defective state’) as to be prejudicial to health or a
nuisance, and that unreasonable delay in remedying the defective state would be
occasioned by following the abatement notice procedures of the 1936 Act, the
authority were entitled, on satisfying certain conditions, to execute works to
remedy the defective state. The relevant provisions of the 1961 Act have since
been incorporated in the Building Act 1984. Sections 77 and 78 of the 1984 Act
deal with dangerous buildings (replacing sections 24 and 25 respectively
of the 1961 Act), section 76 of the 1984 Act deals with defective
premises (replacing section 26 of the 1961 Act). Those provisions remain in
force, with appropriate references to the abatement notice procedures of the
1990 Act now substituted for the original references to those of the 1936 Act.
Mr Bhose
submitted that that legislative distinction between ‘dangerous’ and ‘defective’
premises runs counter to the applicant’s case. The logic of the applicant’s
case is that premises that are dangerous will also be prejudicial to health and
therefore defective. On that basis, however, there is no need for separate
legislative provisions and parliament has, in part, legislated in vain. The
true explanation, which supports the council’s case on this issue, is that a
condition creating a risk of accidental injury was not considered by the
legislator to be ‘prejudicial to health’, and that separate provision for
dangerous premises was therefore appropriate.
The third and
final main strand in support of the council’s submissions on this issue is the
case law, and most importantly the decision of the Divisional Court in Coventry
City Council v Cartwright [1975] 1 WLR 845. That case concerned a
vacant site in a residential area on which the local authority had allowed
indiscriminate tipping of builders’ rubble and waste. The justices upheld a
complaint by a local resident that there was a statutory nuisance under section
92(1)(c) of the Public Health Act 1936, ie ‘any accumulation or deposit
which is prejudicial to health or a nuisance’ (the equivalent of section
79(1)(e) of the 1990 Act). They found a threat to health primarily ‘on the
footing that people who went on to the site, and particularly if children went
on to the site, might hurt themselves by reason of the physical properties
present — broken glass, old tin cans and whatever it may be’ (p848H). In
support of their decision it was submitted that the possibility of physical
injury from cuts and the like was sufficient to justify the assertion that the
deposit or accumulation was prejudicial to health. The Divisional Court
rejected that approach and set aside the abatement order. Lord Widgery CJ
stated at p849B:
The words are
obviously very wide, and one should hesitate, in construing the section in
proceedings such as the present, to lay down boundaries which may in another
case prove to be unsuitable. But I think that the underlying conception of the
section is that that which it struck at is an accumulation of something which
produces a threat to health in the sense of a threat of disease, vermin or the
like.
He went on to
refer, inter alia, to passages in the judgment of Cockburn CJ in Great
Western Railway Co v Bishop (1872) 7 LR QB 550, a case on the
provisions of the 1855 Act, which gave him ‘some encouragement in the view that
this nuisance which the justices have found in the instant case is only
concerned with public health in a very indirect and remote manner’ (p850A). He
concluded at pp850H–851A:
So far as the
first ground relied on by the justices is concerned, that is to say the
possibility of injury to people who come on the land, I am not disposed to say,
and indeed I need not say, in this case that the section is not concerned with
people who come on the land. It may very well be concerned with people who come
on the land. But for the reasons that I have already given I do not
think that the section extends to an accumulation of inert matter merely
because that inert matter may cause physical injury to people who come on the
land and walk upon it. It seems to me, without attempting a more precise
limitation on the effect of the section, that that situation is not within it.
Both Ashworth
J and Michael Davies J expressed agreement. Ashworth J did, however, comment at
p851C:
For my part I
regard this case as somewhere near the borderline, and if there had been more
evidence, for example, about the effect of the refuse and whether that had set
up infestation of rats, it may be that the justices would have been justified
in reaching the conclusion they did, but on the material now before this court
I agree … that there is not enough to justify the order which they made.
Applicant’s
submissions
For the
applicant, Mr Martin Westgate placed the focus of his submissions on the
language of section 79(1)(a). In construing the expression ‘injurious, or
likely to cause injury, to health’, one should keep close to the wording of the
statute (see Salford City Council v McNally [1976] AC 379 at p389
per Lord Wilberforce) and give those words their ordinary meaning. As a
matter of ordinary meaning, personal injury caused by an accident is an injury
to health. ‘Health’ is not limited to illness or disease, but refers more
generally to ‘sound condition’, including freedom from bodily injury. It would,
for example, be very odd to say that a physical injury sustained in an accident
did not involve an injury to health even it resulted in the person’s death.
Referring to
the statutory history, Mr Westgate drew my attention to the fact that the 1990
Act was not simply a consolidating statute, but made a number of important
changes to the previous regime. He accepted that the Act used the same wording
as the 1936 Act to refer to the individual statutory nuisances. On the other
hand, the expression ‘prejudicial to health’ is to be found not only in Part
III of the 1936 Act, but also in Part II (Sanitation and Buildings): section 83
allows steps to be taken to secure the cleansing of premises that ‘are in such
a filthy or unwholesome condition as to be prejudicial to health’. This
militates against the council’s attempt to present a clear correspondence
between prejudice to health and the concept of unwholesomeness derived from the
mid-19th century statutes.
In any event,
Mr Westgate submitted, this is a statutory provision of the ‘always speaking’
variety and it must be interpreted in the light of prevailing standards of
health and prevailing conceptions of injury to health. He referred in that
connection to R v Ireland [1998] AC 147, where it was held that
recognisable psychiatric injury fell within the phrase ‘bodily harm’ in the
Offences against the Person Act 1861. At pp158H–159A Lord Steyn described what
is meant by the ‘always speaking’ construction and went on to apply it as
follows:
The proposition
that the Victorian legislator when enacting sections 18, 20 and 47 of the Act
of 1861, would not have had in mind psychiatric illness is no doubt correct.
Psychiatry was in its infancy in 1861. But the subjective intention of the
draftsman is immaterial. The only relevant inquiry is as to the sense of the
words in the context in which they are used. Moreover the Act of 1861 is a
statute of the ‘always speaking’ type: the statute must be interpreted in the
light of the best current scientific appreciation of the link between the body
and psychiatric injury.
So too in the
present context, submitted Mr Westgate, even though the Victorian legislator
may not have had in mind accidental physical injury, the language is apt to
embrace it and an interpretation in the light of current standards favours it.
That approach also accords with Southwark London Borough Council v Ince
(1989) 21 HLR 504, in which the Divisional Court upheld an order made by
justices under Part III of the Public Health Act 1936 on a complaint by tenants
that noise and vibration from road and rail traffic near the building where
they lived was so bad as to be prejudicial to their health. In giving the main
judgment, Saville J rejected the local authority’s contention that noise was
controlled by a separate statutory regime and not, therefore, by the statutory
nuisance provisions. He stated at p506:
Under section
92(1)(a), the question is not whether the noise itself is a statutory
nuisance but whether the premises are in such a state as to be prejudicial to
health. That may be the case for a whole variety of external factors, be they
weather, noise, the incursion of sewage, or indeed anything else. To my mind,
the fact that there is legislation dealing with those responsible for some of
those external factors does not begin to suggest that the Public Health Act is
inappropriate to premises which are in such a state as to be prejudicial to
health by reason of the external factors for which others may be responsible.
It may well be the case that in 1936 when the Public Health Act was enacted it
was not appreciated that noise could be prejudicial to health. No more, of
course, was it appreciated, or at least to the same extent as today, that
asbestos could be prejudicial to health but it could hardly be suggested that
because of this the Public Health Act does not apply to premises prejudicial to
health through the presence of asbestos. It seems to me that the words in the
Act are quite general in this sense, that the inquiry is whether (for whatever
reason) the premises are in such a state as to be prejudicial to health. For my
part, I cannot read anything in the Act which suggests that that is limited to
any particular factors which in 1936 it was appreciated might have that
consequence. The words, as I have said, seem to me to be quite general and the
test simple and straightforward to apply.
That passage
in Ince is also relied on in support of the submission that no
distinction can be drawn by reference to the mechanism by which injury
is caused (eg an accident). The statutory provisions look simply at whether the
premises are in such a ‘state’ as to be prejudicial to health, and contain
nothing to suggest that some causes are covered while others are not. The
‘state’ of premises for these purposes includes circumstances arising from the
inherent characteristics of the property, eg a steep staircase or the small
size of the kitchen in Cunningham v Birmingham City Council
[1998] Env LR 1 (though that case was decided on the different point that the
magistrate had wrongly applied a subjective rather than objective test).
As to the
council’s reliance on the distinction drawn in legislation between dangerous
buildings and defective premises, Mr Westgate submitted that no firm
conclusions could be drawn. The legislation in this general area is piecemeal,
not a single code. Moreover, the provisions governing dangerous buildings are
not coextensive with, and adopt different criteria from, the statutory nuisance
provisions of Part III of the 1990 Act (which, for example, may apply where the
risk arises from a non-structural problem).
As to the case
law, it was submitted that Coventry City Council v Cartwright (supra)
is a decision about an ‘accumulation or deposit’ under what is now section
79(1)(e) of the 1990 Act, rather than about the ‘state’ of premises under
section 79(1)(a). The hazard, if any, arose because of the optional acts of a
person entering the land and walking on the deposit. That explains any
suggestion in the case that the causal mechanism of injury was important. By
contrast, section 79(1)(a) necessarily applies to use by occupiers and must be
taken to include cases where the normal and ordinary use of the premises
creates a risk of injury. If, however, Cartwright were taken to have any
wider implications as regards the causal mechanism of injury, then Ince
is in conflict with it, since it was assumed in Ince that injury could
arise from the inert state of the premises. In those circumstances it cannot be
said that parliament must have endorsed the decision in Cartwright by
re-enacting the language of the 1936 Act in the 1990 Act.
Conclusion
I have reached
the conclusion that the situation here under consideration is not
capable of giving rise to a statutory nuisance within section 79(1)(a) of the
1990 Act. I accept the general thrust of Mr Bhose’s submissions that this
statutory regime is not intended to apply in cases where the sole concern is
that, by reason of the state of the premises, there is a likelihood of an
accident causing personal injury.
In reaching
that conclusion, I am influenced more by the legislative background and
apparent legislative purpose of the provisions than by their actual language.
The expressions ‘prejudicial to health’ and ‘injurious, or likely to cause
injury to, health’ may not bring
language alone I think that they are capable of embracing it. It is not a
distortion of language to refer to physical injury as an injury to ‘health’, or
to describe premises as being ‘likely to cause’ physical injury in
circumstances where the causal mechanism is indirect, in that there is a
likelihood of accident giving rise to such injury.
When one
looks, however, at the legislative history summarised above, it seems
reasonably clear that the expressions were not intended to be so wide in their
scope. When powers to take action against premises that were ‘prejudicial to
health’ or ‘injurious to health’ were conferred by the mid-19th century
statutes, the object of concern was plainly the direct effect on people’s
health of filthy or unwholesome premises and the like: in particular, the risk
of disease or illness. There is nothing to suggest that the powers were
intended to protect against the danger of accidental physical injury. Looking
at the legislation as a whole, it seems to me that that kind of problem fell
outside the legislative purpose. I do not discern in the subsequent legislative
history any material change in the legislative intention, such as to justify
the attribution of an enlarged scope to the current powers, based as they are
on essentially the same language as used in the original legislation.
Mr Westgate’s
reliance on the ‘always speaking’ principle of construction founders on the
same point. Of course, developments in medical knowledge or standards may
result in matters being held to be ‘prejudicial to health’, even though they
were not, and could not have been, within the contemplation of the original
draftsman. One possible example is that of noise-induced illness, as in Ince;
cf what is said in R v Ireland about psychiatric illness,
albeit in a different statutory context. To that extent the ‘always speaking’
principle may be of utility. Accidental physical injury does not, however, fall
within the same category. It is a problem that no doubt existed as much in the
mid-19th century as it does today. Yet, for the reasons given, in my judgment,
it was simply not a problem at which the relevant statutory provisions were
directed. It fell outside the intended scope of those provisions, and it falls
just as much outside the intended scope of the present-day successors to those
provisions. The ‘always speaking’ principle cannot be deployed so as to depart
in that way from the legislative purpose.
The decision
of the Divisional Court in Coventry City Council v Cartwright (supra)
was to similar effect, though the court did not, it would seem, have the
benefit of the detailed account of the legislative history that has been
presented to me. That history supports the view of Lord Widgery CJ that ‘the
underlying conception of the section is that that which it struck at is an
accumulation of something which produces a threat to health in the sense of a
threat of disease, vermin or the like’ ([1975] 1 WLR 845, at p849C). Although
that observation, and the case as a whole, concerned the subsection relating to
the accumulations and deposits, in my view, the essential reasoning applies
equally to the subsection relating to the state of premises. The same is true
of the related conclusion that the possibility that ‘inert matter may cause
physical injury to people who come on the land and walk upon it’ falls outside
the relevant provisions (p851B). The ratio of the case, as it seems to
me, is that the provisions do not apply to a situation where the only concern
is the possibility (or likelihood) of accidental physical injury. I reject Mr
Westgate’s attempts to find a more limited ratio and thereby to
distinguish the case, together with his broader but related submission that the
mechanism by which an injury is caused (ie accident) can be of no relevance. I
would think it right in any event to follow the decision in Cartwright,
unless perhaps I were confident that it was wrong: see R v Greater
Manchester Coroner, ex parte Tal [1985] QB 67 at p81. As it is, I follow
the decision in the belief that it is right.
I should
mention two further points for completeness. First, I do not read the decision
in Southwark London Borough Council v Ince (supra) as
being in any way inconsistent with Cartwright. Ince was concerned
with the different question of whether premises could be prejudicial to health
by reason of their failure to protect against external factors such as noise.
In so far as the judgment supports the ‘always speaking’ approach to
construction of this statute, I have explained already why that principle of
construction does not, in my view, avail the applicant in this case. Second,
the legislative distinction between ‘dangerous’ and ‘defective’ premises seems
to me to provide only limited support for the conclusion that I have reached.
As Mr Westgate submitted, this is piecemeal legislation rather than a single
code. In those circumstances it is difficult to draw any firm conclusion that
one set of provisions is intended to cover one problem while another set of
provisions is intended to cover a different problem, with no overlap between
them.
Issue (2):
Did the steep staircase in this case give rise to a statutory nuisance?
The conclusion
that I have reached on the first issue provides an immediate answer to the
second issue. If premises cannot constitute a statutory nuisance by reason of
the fact that they are in such a state as to create a likelihood of accident
causing personal injury, it follows that a steep staircase cannot give rise to
a statutory nuisance even if it does create such a likelihood.
I think it
right to go on, however, to consider what the position would be if I were wrong
on the first issue. It is to be borne in mind that the council proceeded at the
material time on the assumption that a steep staircase could in principle give
rise to a statutory nuisance, but none the less decided in the end that there
was no such nuisance in the particular circumstances of the case.
There is, in
the evidence before me, a conflict of expert opinion as to whether the
staircase at the property is unsafe and creates a likelihood of accident
causing personal injury. It is not the function of this court, in proceedings
for judicial review, to resolve that conflict. The relevant powers are vested
in the local authority. By section 80(1) of the 1990 Act, the local authority
are required to serve an abatement notice if they are ‘satisfied’ that a
statutory nuisance exists. In the event, the council in this case were not
satisfied that a statutory nuisance existed. More precisely, Mr Tacagni, the
relevant officer of the council, formed the judgment that the staircase was not
likely to give rise to an accident causing personal injury — I think it right
to proceed on that basis, although the council’s evidence as to the date when
the relevant judgment was formed is far from satisfactory. The court can
intervene only if that judgment was irrational, and it is the kind of value
judgment in respect of which the court will be hesitant to make such a finding.
(I leave aside the question whether the council were entitled, on the basis of
that judgment, to withdraw an abatement notice previously served: see the next
issue.)
Mr Westgate
directed a number of submissions to the inadequacy of the steps taken by the
council to apprise themselves of all the relevant facts and submitted that the
judgment made was irrational or that there was no rational basis for departing
from the earlier decision to serve an abatement notice. I accept that the
information upon which the relevant judgment was based appears to have been
distinctly thin. Mr Tacagni had visited the premises earlier in the year and
had recommended the provision of a handrail. His detailed report on the
premises was not made, however, until April 1997, after the commencement of the
present proceedings. Even that report is not as full or impressive as the
Head/Court report produced on behalf of the applicant; and Mr Westgate
submitted that Mr Tacagni’s second affidavit reveals a misunderstanding on his
part as to the true thrust of the argument in the Head/Court report concerning
the nature of the danger, which is in descending rather than ascending
the stairs.
I confess to a
degree of unease as to the adequacy of the steps taken by the council and as to
the soundness of Mr Tacagni’s judgment on this issue. In the end, however, I am
not prepared to hold against the council on the ground of irrationality. Mr Tacagni,
an officer of the council with the relevant expertise, did personally inspect
the premises and form a view about them. His later report (albeit post-dating
the legal proceedings) is based on a detailed examination of the staircase and
comes down clearly against there being a likelihood of an accident. His
affidavit asserts that no abatement notice would be served if the matter came
before him today. Despite the expert material put in by the applicant and the
submissions made by Mr Westgate, I am not satisfied
think, implicit in the applicant’s case) that the only reasonable conclusion in
this case is that the staircase does create a likelihood of accident causing
personal injury.
Issue (3):
Were the council entitled to withdraw the abatement notice?
Mr Westgate
accepted at the outset of his submissions that if the situation was not capable
of falling within section 79(1)(a) of the 1990 Act (as I have held to be the
case), the abatement notice served by the council in 1994 was not a valid
notice and it would be pointless for the council to maintain it. He would not
argue that its withdrawal in those circumstances was unlawful. Accordingly, my
conclusion on the first issue is also effectively determinative of the third
issue.
Again,
however, I think it right to consider what the position would be if I were
wrong on the first issue.
On the
assumption that the situation was capable in principle of falling within the
relevant provisions, Mr Westgate submitted on behalf of the applicant that the
council had no authority to withdraw the abatement notice once served. There is
no express power of withdrawal and no such power should be implied. To do so
would be to lead to uncertainty and would be inconsistent with the status of a
notice as a final determination affecting the rights and obligations of
occupiers and other third parties. Reliance was placed on the fact that, under
the 1936 Act, the local authority had to serve a notice requiring works to
abate the nuisance and then, in the event of default, apply to the justices for
a nuisance order, breach of which was a criminal offence. The current procedure
runs together the two stages, in that the notice served by the authority is
final and binding in its own right, subject to a successful appeal. It was
submitted that it would be inconsistent with the appeals structure under the
1990 Act to permit an authority to change their mind about the existence of a
statutory nuisance and to withdraw a notice once served.
For the
council, Mr Bhose submitted that there must be an implied power of withdrawal.
A local authority are both the enforcing and prosecuting authority under Part
III of the 1990 Act. Service of an abatement notice is a step in a procedure
that may lead to criminal liability. It must be the position (and the applicant
does not suggest otherwise) that the authority have a discretion whether
to prosecute for breach of an abatement notice. The principles of finality and
certainty require that, if the authority decide not to prosecute, they may also
formally withdraw the abatement notice themselves. Moreover, the whole thrust
of the relevant provisions is to place upon a local authority a continuing duty
of review. There is a general duty under section 79(1) to cause the authority’s
area to be ‘inspected from time to time’ in order to detect any nuisances that
ought to be dealt with under section 80. The duty under section 80(1) is to
serve a notice where the authority ‘is satisfied’ that a statutory nuisance
exists or is likely to occur or recur. It would be very surprising if the
authority, having served a notice on the basis that they were satisfied on the
evidence available at a particular point in time, were thereafter unable to withdraw
the notice even if, because of changes of expert opinion or other changes in
circumstances, they ceased to be satisfied that a statutory nuisance existed or
was likely to occur or recur. Further, in reaching a decision under section
80(1), the local authority are performing an executive function, not a judicial
function. The situation is different from that of an order of a magistrates’
court under section 82. The fact that the magistrates’ court, having made its
determination, is functus officio and has no power to withdraw or revoke
its order does not mean that the local authority are likewise functus
officio and lack a power of withdrawal once they have served an abatement
notice under section 80(1).
I accept Mr
Bhose’s submissions on this issue. In the absence of an implied power to
withdraw an abatement notice, the enforcement provisions would, in my view, be
unduly rigid. It seems senseless that an authority should be unable to withdraw
an abatement notice that, for whatever reason, they no longer consider to be
appropriate. It is particularly unsatisfactory that the recipient of the notice
should remain subject to it and, by reason of a failure to comply with its
requirements, should remain in breach of the criminal law in circumstances
where the local authority do not consider the notice to be appropriate and have
no intention of bringing a prosecution for breach of it. A power of withdrawal
is therefore consistent with, and serves to promote rather than to undermine,
the legislative scheme. I see no difficulty in implying such a power.
On the basis
that the council had a power to withdraw the abatement notice, there is a
further question of whether the council lawfully exercised that power in the
circumstances of this case. In my view, the answer to that question is ‘yes’,
in that Mr Tacagni formed the judgment that the staircase was not likely to
give rise to an accident causing personal injury and Mr Collins, the council’s
solicitor, advised that, in the circumstances, the staircase could not be considered
a statutory nuisance and the notice should be withdrawn. That constituted a
proper exercise of the discretion. I have already considered and rejected the
substance of the applicant’s submissions that such an exercise of discretion
was irrational.
Accordingly,
even if I were wrong on the first issue, I would find in favour of the council
on the basis that they had the power to withdraw the abatement notice and
exercised that power lawfully in the circumstances of this case.
Issue (4):
Discretion
The final
issue is whether, even if the applicant were right on the substance, relief
should be refused in the exercise of the court’s discretion. Since I am against
the applicant on all the substantive issues, I can deal with this very briefly.
The nature of the case put forward by Mr Bhose was that it is open to the
applicant to proceed with her own complaint to the magistrates’ court under
section 82 of the 1990 Act and that the availability of that alternative remedy
makes it inappropriate to allow her to proceed by way of judicial review. As to
that, I am not satisfied that the availability of the section 82 procedures
makes judicial review inappropriate. The local authority are the primary
enforcement authority in relation to statutory nuisances. If an authority were
found to have acted unlawfully in the performance of those functions, the court
might well think it right to grant relief in the exercise of its supervisory
jurisdiction, even though the applicant could have ventilated the merits
of the case by bringing her own complaint against the landlord under section
82.
A separate
matter raised on behalf of the applicant in resisting this line of argument by
the council was that the applicant ought to have the opportunity to bring a
prosecution under section 80(4), ie based on the abatement notice served by the
council, without having to go through the route of obtaining an order from the
magistrates under section 82. It is unnecessary for me to decide whether it
would be open to a person other than the local authority to bring a prosecution
in respect of an offence under section 80(4). It suffices to say that, in any
event, I would not consider the maintenance of the possibility of a private
prosecution by the applicant under section 80(4), as an alternative to her use
of the procedures under section 82, to be a strong reason for exercising a
discretion in her favour.
Conclusion
In the event,
as I have indicated, no question arises as to the exercise of the court’s
discretion. For the reasons of substance that I have given, the application for
judicial review is dismissed.
