House with separate lavatory and no washbasin – Only access to washing facilities in kitchen or via kitchen – Whether premises in such a state as to be prejudicial to health – Part III Section 79(1)(a) of Environmental Protection Act 1990 – Justices ordering that lavatory be moved – High Court dismissing council’s appeal – House of Lords allowing appeal
The respondent tenant, his wife, three children and a grandson lived at 40 Hunslett Road, Quinton, Birmingham. The ground floor of the house included a bathroom with a washbasin, next to a kitchen that had a sink. On the side of the kitchen, opposite the bathroom, was a door leading into a lavatory. There was no washbasin in the lavatory and no space to install one, so that anyone using the lavatory who wanted to wash his hands had to do so in the kitchen sink or the bathroom.
In May 1996 the respondent preferred an information against the appellant council alleging that they had failed to abate a statutory nuisance. The magistrates found that it was unacceptable, in the interest of hygiene, to expect people using the lavatory to either wash their hands in the kitchen sink or to cross the kitchen to the bathroom to do so. They ordered that the lavatory be moved into the bathroom, with an extractor fan, and that the door to the bathroom be resited.
The High Court dismissed the council’s appeal, holding that the premises were used as they were as a direct result of their layout, and that, since that use was predictably so unhygienic as to create a health risk, the state of the premises was injurious to health and a statutory nuisance within Part III, section 79(1)(a) of the Environmental Protection Act 1990. The council appealed.
Held: The appeal was allowed by a majority.
1. The matters listed in section 79 of the Act, such as smoke, gases, or an accumulation or deposit of dust, were capable of being prejudicial to health in themselves. Subsection (1)(a) was not limited to the specific items listed in other parts of the subsection, although those items gave an indication of the essential feature of the statutory nuisance that was being dealt with. There had to be a factor that was, in itself, prejudicial to health. The arrangement of the rooms, which were not in themselves unsanitary, so as to be prejudicial to health, did not fall within section 79(1)(a) of the Act.
2. In the instant case, there was nothing wrong with the lavatory, nor was there any defect in the drain or the handwash basin. There was, accordingly, nothing in the premises themselves that was prejudicial to health. The fact that the lavatory and the washbasin were in separate rooms, or that, to get from one to the other, it was necessary to pass through the kitchen, was not sufficient to render the house itself “in such a state” as to be prejudicial to health. The prejudice to health resulted from any failure to wash hands, or from the use of the kitchen sink or the bathroom basin after access through the kitchen. Undesirable though that arrangement was, it was not permissible to give an extended meaning to the words in section 79(1)(a) of the Act, however socially or hygienically desirable it might be.
Timothy Straker QC and James Findlay (instructed by Sharpe Pritchard, as agent for the solicitor to Birmingham City Council) appeared for the appellants; Michael Supperstone QC and John Stenhouse (instructed by McGrath & Co, of Birmingham) appeared for the respondent.
Thomas Elliott, barrister
