Environmental Protection Act 1990 — Abatement notice — Meaning of owner — Whether section 80(2)(b) includes managing agent who receives rack-rent as agent of trustee
In August 1997 the appellant council served an
abatement notice on the respondent, as managing agent for a freehold business
premises, alleging that the structural defects gave rise to a statutory
nuisance, since the state of the premises was prejudicial to health contrary to
section 80 of the Environmental Protection Act 1990. The respondent appealed
against the abatement notice contending, inter alia, that the notice
should have been served on the owner of the premises. In December 1997 that
appeal was dismissed by the magistrate. On an appeal against that decision to
the Crown Court, it was held that the respondent was not the owner of the
premises within the meaning of section 80 of the 1990 Act. The council appealed
by way of case stated.
The Crown Court was wrong to have concluded that the respondent was not an
‘owner’. The whole series of statutes regulating statutory nuisances, from 1848
until the present time, have defined ‘owner’ so as to include ‘…the person for
the time being receiving the rack rent of the premises in connection with which
the word is used, whether on his own account or as agent or trustee for any
other person’. It was accepted that the word ‘owner’ in section 80(2) should be
similarly historically based. The principal purpose of the 1990 Act is to
ensure that statutory nuisances are promptly abated or prevented. By targeting
the person receiving the rack-rent, or the person entitled to receive the
rack-rent, the enforcing authority or private individual is able to identify
persons sufficiently closely connected to the premises, who can speedily be
served with a notice. No injustice is done to a managing agent served with such
a notice because enforcement proceedings can be taken only against a true managing
agent, who has a means of challenge contained in the Statutory Nuisances
(Appeals) Regulations 1995, a defence of reasonable excuse provided in section
80(4) of the 1990 Act and a right to recover expenses incurred by making
deductions from rent collected on behalf of the landlord.
The following cases are
referred to in this report.
AMEC Building Ltd
v Camden London Borough Council [1997] Env LR 330
Bottomley v Harrison
[1952] 1 All ER 368
Fothergill v Monarch
Airlines Ltd [1981] AC 251
Midland Bank plc
v Conway Corporation [1965] 1 WLR 1165
R v Bristol
City Council, ex parte Everett [1999] 1 WLR 1170; [1999] 2 All ER 193;
[1999] 3 PLR 14
This was an appeal by way
of case stated by Camden London Borough Council against a decision of
Knightsbridge Crown Court allowing an appeal in respect of an abatement notice
issued by them on Peter Gunby pursuant to section 80 of the Environmental
Protection Act 1990.
John Williams (instructed by the solicitor to
Camden London Borough Council) appeared for the appellant council; Edwin
Buckett (instructed by Eversleys) represented the respondent, Peter Gunby.
Giving judgment, ROSE LJ said: This appeal, by way of case stated by
Camden London Borough Council against a decision of Judge Samuels QC and
justices sitting at Knightsbridge Crown Court, raises an interesting and
ultimately short point of interpretation, namely as to the meaning of ‘owner’
in section 80(2)(b) of the Environmental Protection Act 1990, and, in
particular, whether that word is apt to include a managing agent who receives
rack-rent as an agent or trustee.
The background history to the litigation is that
the appellant authority served an abatement notice, dated 14
on the respondent, Peter Gunby, pursuant to section 80 of the Act. It alleged
that there were structural defects giving rise to a statutory nuisance at
premiums in Fellows Road, London NW3, which were said to be in a state
prejudicial to health. The respondent, Mr Gunby, is a partner in a firm of
surveyors called B Bailey & Co. It acted at all material times as managing
agent for the freehold owner of the property, Bankway Properties Ltd.
On 22 August 1997 Mr Gunby, in appealing against
the abatement notice, preferred a complaint that raised six grounds, including
one that the notice should have been served on someone other than him, namely
the owner of the premises. The stipendiary magistrate sitting at West London
Magistrates’ Court on 11
awarded costs in favour of the local authority. Mr Gunby appealed to
Knightsbridge Crown Court, which heard the appeal on 19
The proceedings before the Crown Court sought to
resolve a preliminary issue. That, as identified in the case stated, was:
Whether the abatement notice dated 14 August 1997
should have been served on the freehold owner of the premises in question in
contradistinction to the appellant who was known by the respondent prior to the
preparation and service of the abatement notice to be the managing agent for
those premises.
In so far
as they are material for the purposes of resolving that preliminary issue, the
facts are set out in para 5 of the case and can be summarised in this way. The
abatement notice asserted a statutory nuisance such as to be prejudicial to
health at the premises. That nuisance arose from defects of a structural
character. Mr Gunby was a partner in B Bailey & Co, which was, at all
material times, managing agent for the premises, which were owned by Bankway.
Furthermore, prior to the service of the abatement notice, requests for
information had been made, pursuant to section 16 of the Local Government
(Miscellaneous Provisions) Act 1976, of both Mr Gunby and Bankway. Both Bankway
and the managing agent said that notices were to be served on the managing agent.
Each of them, the owner and the managing agent, claimed to be responsible for
the works to the common parts. In particular, Mr Gunby’s response to question 7
from the local authority, which sought ‘the name and address of the person
responsible for works to the common parts of the property, eg roof, external
structure et cetera’, was ‘Peter Gunby, B Bailey & Co’, and the address in
Ilford was given.
In that factual context, I turn to the relevant
statutory framework in the 1990 Act. The long title to the Act includes this
provision:
to restate the law defining statutory nuisances
and improve the summary procedures for dealing with them…
So far as improving summary procedures is
concerned, the Act, analogously to the Control of Pollution Act 1974, removes
the need for a court order, following service of an abatement notice, before
certain remedial steps can be taken.
Section 79(1) identifies what constitutes a
statutory nuisance for the purpose of the Act and this includes:
(a) any premises in such a state as to be
prejudicial to health or a nuisance.
Section 79(7) defines ‘person responsible’:
(a) in relation to a statutory nuisance, means
the person to whose act, default or sufferance the nuisance is attributable.
And goes on to say:
any expressions used in this section and in [the
Clean Air Act 1993]…
— a subsequent insertion
by amendment —
…have the same meaning in this section as in that
Act…
To the
definition of ‘owner’ in the Clean Air Act 1993 I shall in due course return.
Section 80(1) empowers a local authority to serve
an abatement notice where satisfied that a statutory nuisance exists or is
likely to occur or recur.
Subsection (2) to that section provides that the
abatement notice shall be served:
(b) where the nuisance arises from any defect of
a structural character, on the owner of the premises.
Subsection (4) provides that a person on whom an
abatement notice is served will be guilty of an offence if, without reasonable
excuse, he contravenes or fails to comply with any requirement or prohibition
imposed by the notice.
Section 81(3) empowers a local authority, after
service of an abatement notice that has not been complied with, to abate the
nuisance and to do whatever may be necessary in the execution of the notice.
Then section 81A(9) provides as
follows:
In this section —
‘owner’, in relation to any premises, means a
person (other than a mortgagee not in possession) who, whether in his own right
or as trustee for any other person, is entitled to receive the rack rent of the
premises or, where the premises are not let at a rack rent, would be so
entitled if they were so let…
On behalf of the appellant local authority, Mr
John Williams draws attention to the provisions of the Statutory Nuisance
(Appeals) Regulations 1995 as contemplating, he submits, the possibility of
there being more than one owner of premises. He makes that submission because
one of the grounds on which a person served with an abatement notice has a
right of appeal is, in the terms of regulation 2(2)(h):
that the abatement should have been served on some
person instead of the appellant, being —
(iii) in the case of a nuisance arising from any
defect of a structural character, the owner of the premises…
Regulation 2(2)(j) provides that there is a right
of appeal if an abatement notice might lawfully have been served on some person
in addition to the appellant, being:
(ii) a person who is also owner of the premises…
So far as one of the particular conclusions
reached by the Crown Court is concerned, namely that the enactment of section
16 of the Local Government (Miscellaneous Provisions) Act 1976 made it otiose,
in the majority of cases, for a local authority to proceed against any person
other than the immediate leaseholder or freeholder, because a request for
information will identify the proper recipient of the abatement notice
concerned, Mr
was advanced by counsel to the court in relation to that matter. Nor was that
conclusion canvassed by the judge with counsel.
Mr Williams submits that this conclusion was wrong
for a number of reasons, not all of which it is necessary to rehearse,
including, first, the fact that the power conferred on local authorities by
section 16 of the 1976 Act was not, in fact, a new power at all: see, for
example, section 277 of the Public Health Act 1936.
Furthermore, since the 1976 Act, parliament has
continued to enact legislation that includes the definition of owner, to which
in a moment I shall come, and that legislation includes the Clean Air Act 1993
section 64(1), to which Act, as I have already indicated, by amendment, the
1990 Act specifically refers.
The
principal thrust of Mr Williams’ submission in support of this appeal is that a
whole series of statutes regulating statutory nuisances, from 1848 up until the
present time, have defined owner in the same way, namely:
the person for the time being receiving the rack
rent of the premises in connection with which the word is used, whether on his
own account or as agent or trustee for any other person.
Such a definition is to be found, purely by way of
example, in section 2 of the Public Health Act 1848, in the Nuisances Removal
and Diseases Prevention Act 1855, in section 4 of the Public Health Act 1875,
in the Public Health Act 1936, the Public Health Act 1961, the Control of
Pollution Act 1974, the Local Government (Miscellaneous Provisions) Act 1976
and the Clean Air Act 1993. Furthermore, that definition has also been used in
other regulatory Acts concerning fire precautions, highways and housing.
That being so, Mr Williams submits that as ‘owner’
in section 80(2) of the 1990 Act is not defined, and as the definition in
section 81A(9) of owner is expressly, by that subsection, limited to that
subsection, and does not extend to the use of the word ‘owner’ elsewhere in the
Act, it follows that there is a potential ambiguity and, indeed, potentially a
different meaning where the word owner appears in section 80(2).
As a matter of history, over the last 150 years,
owner has, in this legislation, acquired a technical meaning where statutory
nuisances are being dealt with and consequently and, I dare say, contrary to
that well-established, historically based meaning to be found in the 1990 Act,
the word ‘owner’ in section 80(2) should be given that same well established
meaning. In support of that submission he invites our attention to a decision
of the Court of Appeal in R v Bristol City Council, ex parte Everett
[1999] 2 All ER 193 and in particular to certain passages in the judgments of
Mummery and Buxton LJJ, Hirst
judgments.
This case concerned whether a steep staircase was
likely to cause injuries to health within section 79(7) of the Environmental
Health Act 1990. At p200h Mummery LJ said:
The important point to note from the legislative
history is that the expression, which now falls to be construed in s 79 of the
1990 Act, has been repeatedly used by Parliament in the context of what have
been characterised as ‘sanitary statutes’.
At p202j Mummery LJ said:
When restating the law of statutory nuisances in
the 1990 Act Parliament used the same expression ‘injury to health’ that it had
used in the earlier legislation. That expression had been interpreted and
applied by the courts for over a century in the sense demonstrated in the two
authorities cited above. In those circumstances it is probable that Parliament
intended: (a) to produce the same result in similar cases under Pt III of the
1990 Act as had been produced under the equivalent provisions of the earlier
Public Health Acts; and (b) to leave the risk of injury by accident to be dealt
with by local authorities under
the building regulations.
At p204b Buxton LJ said:
However, whatever may be thought of the verbal
infelicities forced on the 1990 Act by the appellant’s case, as the judge said
everything falls into place once one looks at the history of the legislation,
as expounded by Mummery LJ in his judgment.
Mr Williams
submits that, in the light of that authority, the approach of this court to the
word ‘owner’ in section 80(2) should be similarly historically based. He
stresses that the long title to the Act indicates a restatement of the law
defining statutory nuisances. He submits that the principal purpose of Part III
of the Act is to ensure that statutory nuisances are promptly abated or
prevented. To this end, the enforcing authority or private individual, who also
has powers under the Act, should be able readily to identify a person connected
with the premises who can speedily be served with a notice. By targeting the
person receiving the rack-rent, or the person entitled to receive the
rack-rent, the enforcing authority or private individual is able to identify
persons sufficiently closely connected to the premises to be held responsible
for their condition. Mr
81A(9), the definition of owner, parliament was concerned to ensure that that
definition was not to apply to the word ‘owner’ when used in the Act, other
than in section 81A(9). He does not shrink from the submission that the
consequence is that ‘owner’ means more than one thing in the same Act.
He submits that no injustice is done to a managing
agent served with such a notice, first, because enforcement proceedings can be
taken only against a true managing agent: see, for example, Bottomley v Harrison
[1952] 1 All ER 368 and Midland Bank plc v Conway Corporation
[1965] 1 WLR 1165. Furthermore, the managing agent has the right of appeal
against the notice contained in the regulations to which we have referred.
Third, although failure to comply with an abatement notice is a criminal
offence, there is a defence for a managing agent of reasonable excuse, provided
by section 80(4), to which I have already referred. Finally, a managing agent
can recover expenses incurred by making deductions from rent collected on
behalf of the landlord.
So far as section 81A(9)’s definition is
concerned, Mr
imposition of a land charge, and it would not make sense, in relation to a land
charge, to speak of an agent as being the owner, because the agent does not
have the legal title that a land charge would affect. That, submits
Mr
is provided in section 81A(9).
On behalf of the respondent, Mr Gunby, Mr Edwin
Buckett stresses that the 1990 Act is penal and, therefore, the court should
not widen the meaning of the word ‘owner’, particularly when what his written
skeleton argument describes as the ‘modern’ definition of owner in section
81A(9) is a narrower definition. Mr Buckett drew our attention to AMEC
Building Ltd v Camden London Borough Council [1997] Env LR 330. But,
for my part, I derive no help from that authority, which establishes that a
notice served on the wrong person is a nullity. The question that arises in the
present case is who, as a matter of statutory definition, is the right person? Mr
Buckett says that it is not for the courts to rewrite Acts of Parliament and
there is no compelling reason why ‘owner’ should include the managing agent,
bearing in mind that the occupier can be served if the owner cannot be found:
see section 80(2)(c).
Mr Buckett submits that Mr Williams’ reliance on
the legislative history is misplaced because one cannot, as a matter of
statutory construction, have recourse to legislative history unless one first
considers the rules of statutory construction, the first three of which,
referred to in the third edition of Cross’ Statutory Interpretation at
p49, Mr Williams relies on. First, the judge must give effect to the
grammatical and ordinary or, where appropriate, technical meaning of words in
the general context of the statute. Second, if the judge considers that the
grammatical and ordinary sense would produce a result contrary to the purpose
of the statute, he may apply a secondary meaning. Third, a judge may only read
in words if he considers they are necessarily to be implied.
Mr Buckett further relies on certain observations
as to the plain meaning rule in that publication, where appears this passage at
p154:
It would be possible to place a restrictive
interpretation on Lord Diplock’s ban on consulting legislative history so as to
confine it to cases where the words of the Act are ‘clear and unambiguous’; but
it accords more with judicial practice to extend it to cases where the judge is
satisfied that one of two or more possible meanings of statutory words, read in
a context bereft of their legislative history, best fits the purpose of the
legislation.
(That is a reference to the speech of Lord Diplock
in Fothergill v Monarch Airlines Ltd [1981] AC 251 and a passage
cited at p153 by Sir Rupert Cross from Lord Diplock’s speech at pp279-280.)
Mr Buckett further submits that there was an
opportunity to correct the omission, if omission it was, to define owner in
section 80(2) in the Noise and Statutory Nuisance Act of 1993, to which
reference is made in David Ormandy’s Law of Statutory Nuisances at p57.
As against that, of course, there is the definition of owner in the Clean Air
Act 1993, to which we have already referred.
In my judgment, Mr Williams’ submissions are
correct. I pay full regard to the penal nature of the statute, creating, as it
does, a criminal offence, or more accurately, one should say, restating a
criminal offence. But, as I have already indicated, the regulations provide,
for example, a means of challenge where the wrong person has been served with
an abatement notice and there is also a defence, which I have indicated, in
relation to reasonable excuse.
It seems, to my mind, that the reference in
section 81A(9) to ‘this section’ immediately poses a question mark or ambiguity
as to the meaning of owner where it appears undefined in section 80(2). That
being so, a judge is entitled to resolve that ambiguity by recourse to the
overwhelming legislative history to which I have referred, a legislative
history that, it is to be noted, not only precedes this Act by 150 years but
also succeeds it in the terms of the Clean Air Act 1993 section 64. That being
so, the answer to the question imposed by the case stated, as to whether the
Crown Court was correct in concluding that the respondent was not the owner of
the premises within the meaning of section 80(2)(b), is ‘no’.
For my part, I would allow the appeal and remit
the matter to the Crown Court for a continued hearing in relation to such facts
as bear on the question, if it be in dispute, as to whether the present
respondent is a managing agent.
SMEDLEY J agreed and did not add anything.
Appeal allowed.
