Public Health Act 1936 — Appeals by local authority against nuisance orders made by magistrate on informations preferred by local authority tenants on the ground that their flats were in a condition prejudicial to health and constituted a statutory nuisance due to the act, default or sufferance of the local authority — Evidence before the magistrate showed deplorable conditions of dampness and serious mould growth — It was also shown that there were heating problems beyond the control of the tenants without the installation of additional heating; and in view of the poor thermal quality there was a need for improved ventilation — The magistrate rejected submissions that the conditions were due to the acts of the tenants and were not the responsibility of the council — He made a nuisance order which contained in a schedule of works such improvements as the installation of full gas-fired central heating, secondary double-glazing and cavity-wall insulation — It appeared that because of the procedure adopted at the hearing the question as to what works were necessary was not inquired into by the magistrate, as a schedule of works agreed by the parties was placed before him — It also appeared that the flats in question were in an improvement area and that it was probably intended in any event to carry out the works described in the schedule to the nuisance order — Held that there was enough evidence to enable the magistrate to decide that the appellant authority were responsible for the presence of mould and dampness in the flats — The consequent procedure should not, however, be taken as a precedent to be followed — The magistrate here did not in the exercise of his own discretion reach a conclusion as to what was reasonably necessary to abate the nuisance — If it had not been for the fact that the appellants had been a party to the agreement as to the schedule of works, it would have been sent back for consideration of substantial amendments — The parties had been influenced by the likelihood of future improvements, such as central heating and double-glazing, being provided in the improvement — In the circumstances, however, the appeals must be dismissed
The following
cases are referred to in this report.
Clayton v Sale Urban District Council [1926] 1 KB 415
Dover
District Council v Farrar (1980) 2 HLR 32
Greater
London Council v London Borough of Tower Hamlets
(1983) 15 HLR 54
Nottingham
City District Council v Newton [1974] 1 WLR
923; (1974) 231 EG 497
R v Fenny Stratford Justices, ex parte Watney Mann (Midlands) Ltd [1976]
2 All ER 888; (1976) 238 EG 41, [1976] 1 EGLR 47
Salford
City Council v McNally [1976] AC 379; [1975]
3 WLR 87; [1975] 2 All ER 860; (1975) 236 EG 555, [1975] 2 EGLR 28
These were
appeals by case stated by Mr Frederick H Hatchard, the stipendiary magistrate
sitting at Birmingham, the appellants in each case being the Birmingham
District Council. The respondents were three council tenants, Wendy Kelly,
Beryl Robinson and Travella Edmonds, of 32 Kingston Road, 6 Artillery Street
and 42B Kingston Road, respectively, in Bordesley, Birmingham. The appeals were
in each case against a nuisance order made by the magistrate on informations by
the respondents.
Raymond Sears
QC and Ian Croxford (instructed by Sharpe Pritchard & Co, agents for G W T
Pitt, City Solicitor’s Department, Birmingham) appeared on behalf of the
appellants; R G B Allen (instructed by the Small Heath Community Law Centre,
Birmingham) represented the respondents.
Giving the
first judgment at the invitation of Watkins LJ, WOOLF J said: These are three
appeals by case stated by the stipendiary magistrate, Mr Hatchard, sitting at
Birmingham. The appellant in each case is the Birmingham District Council and
the respondents are three tenants of the council, namely Wendy Kelly, who lives
at 32 Kingston Road, Travella Edmonds, who lives at 42B Kingston Road, and
Beryl Robinson, who lives at 6 Artillery Street, all those premises being in
Bordesley in Birmingham.
Each appeal
arises out of informations preferred by the tenants alleging that the council
had failed to abate a statutory nuisance at the premises of which they are
respectively tenants and alleging that the premises were in such a state as to
be prejudicial to health.
On the
appeals, Mr Sears, on behalf of the council seeks to raise two points: first of
all, the extent of the council’s responsibility for a statutory nuisance, if
such a nuisance exists and, second, the steps which the council can be required
to take in order to abate such a nuisance. Mr Sears contends that the
obligation of the council is limited to that which arises out of a contractual
or statutory duty of the council as a landlord and does not go beyond a
contractual or statutory duty. Third, Mr Sears contends that in an appropriate
case the council can be required to carry out repairs, but it cannot be
required under the statutory procedure to carry out improvements. The council
is a very large housing authority. Mr Sears says that it is the largest in
Western Europe and clearly, having regard to the number of houses for which it
is responsible, the points raised are of substantial importance to the council.
The
informations arose out of the provisions of Part III of the Public Health Act
1936. That Act provides two separate methods of enforcement in relation to
statutory nuisances. First of all, there is the normal method of enforcement
which involves the authority serving an abatement notice and, if that abatement
notice is not complied with, issuing an information before the magistrates with
a view to obtaining a nuisance order. The alternative method allows a person
aggrieved to proceed direct to the magistrates seeking an order from the
magistrates.
What is a
statutory nuisance is defined by section 92 of the Act in these terms so far as
it is relevant to these appeals:
(1) Without prejudice to the exercise by a local
authority of any other powers vested in them by or under this Act, the
following matters may, subject to the provisions of this Part of this Act, be
dealt with summarily, and are in this Part of this Act referred to as
‘statutory nuisances,’ that is to say: (a) any premises in such a state as to
be prejudicial to health or a nuisance . . . .
Section 93
deals with the service of an abatement notice. That section is not directly
relevant here, but it is necessary to have in mind the terms of section 93, so
far as appropriate, which are as follows:
Where a local
authority are satisfied of the existence of a statutory nuisance, they shall
serve a notice (hereafter in this Act referred to as ‘an abatement notice’) on
the person by whose act, default or sufferance the nuisance arises or
continues, or, if that person cannot be found, on the owner or occupier of the
premises on which the nuisance arises, requiring him to abate the nuisance and
to execute such works and take such steps as may be necessary for that purpose.
I stress the
words ‘act, default or sufferance’ and also the words ‘necessary for that
purpose.’
The next
section to which it is necessary to make reference is section 99, which
contains the power of a person aggrieved to make complaint as to statutory
nuisance. As amended, that section reads:
[Information]
of the existence of a statutory nuisance under this Act may be [laid before] a
justice of the peace by any person aggrieved by the nuisance, and thereupon the
like proceedings shall be had, with the like incidents and consequences as to
the making of orders, penalties for disobedience of orders and otherwise, as in
the case of [an information] by the local authority, but any order made in such
proceedings may, if the court after giving the local authority an opportunity
of being heard thinks fit, direct the authority to abate the nuisance.
Section 94
deals with the power of the court to make a nuisance order. Subsection (2)
provides:
If on the
hearing of the [information] it is proved that the alleged nuisance exists, or
that although abated it is likely to recur on the same premises, then . . . the
court shall make an order (hereafter in this Act referred to as ‘a nuisance
order’) for either, or both, of the following purposes — (a) requiring the
defendant to comply with all or any of the requirements of the abatement
notice, or otherwise to abate the nuisance, within a time specified in the
order, and to execute any works necessary for that purpose.
There is also a
reference in subsection (2) to the power of the justices to impose a fine and
to make an order in relation to a building which in the opinion of the court is
unfit for human habitation, prohibiting the use of the building for that
purpose.
It will be
observed from the statutory provisions that I have cited that where an
application is made to the justices three questions arise for their consideration.
First of all, is there a statutory nuisance?
(See section 92.) Second, was it due to the act or default or sufferance
of the local authority? (See section
93.) Finally, what steps are necessary
to abate the statutory nuisance? (See
section 94(2).)
The general
approach to those questions was indicated by Lord Wilberforce in a speech in Salford
City Council v McNally [1976] AC 379. At p 389 Lord Wilberforce
said:
In conclusion
I would only add a few words as to the task of magistrates dealing with
complaints under the Public Health Act 1936. They should, in the first place,
keep close to the wording of the Act and ask themselves, after they have found
the condition of the premises, the questions (i) is the state of the premises
such as to be injurious or likely to cause injury to health, or, (ii) is it a
nuisance? To consider these questions in
terms of fitness or unfitness for human habitation is undesirable and is likely
to confuse. And the magistrate should find specifically under which limb the
case falls. If he answers either question in the affirmative he must make an
abatement order, and he should, if possible, make this as specific as he can,
rather than order in general terms to abate the statutory nuisance. That may
lead to difficulties in cases like the present. In making the order the
magistrate should take into account the circumstances in which the property is
being occupied including, of course, the likely duration of the occupation. The
shorter the period before probable demolition, the more severe must be the
injury or likely injury to health or, as the case may be, the nuisance, to
justify action by way of abatement. This aspect of the matter was well
explained by the Divisional Court in Nottingham City District Council
v Newton [1974] 1 WLR 923, the keynote of which is the need, in
making abatement notices, to use discretion and common sense.
If I may
respectfully do so I would echo and emphasise the words of Lord Wilberforce as
to using ‘discretion and common sense’.
So far as the
facts of these three appeals are concerned, they all fall within the same
pattern, though there are some minor differences. It is to be noted that the
stipendiary magistrate visited each of the premises and also heard the
informations on something like six different days. The premises all consist of
flats in low-rise buildings consisting of blocks of four flats. From the case
in relation to 6 Artillery Street, it is apparent that the premises were built
in about 1949. The tenants in each case had been living in the flats for some
time; in the case of 6 Artillery Street, since 1969. All the buildings were
built in accord with the building regulations in force at the time the premises
were erected. 32 Kingston Road is on the ground floor, but the other two premises
are first-floor or upper flats.
Among the
findings of fact of the stipendiary magistrate were the following: heating
provisions consisted of a 3.5 kW gas fire in the living-room supplemented by
the respondent’s own portable electrical appliances. There was no fixed heating
in the hall or bathroom and no electric socket was fitted in the hall. Those
were the findings of fact in relation to 42B Kingston Road. A similar finding
of fact was made in relation to 32 Kingston Road, though in relation to 6 Artillery
Street apparently the heater in the living-room was supplemented by a paraffin
heater in the bathroom and portable electric heaters were used in bedrooms from
time to time.
Certain
defects were found to exist in relation to the windows. For example, in
relation to 6 Artillery Street, the case recites that when inspected the
windows were stiff and difficult to operate; there was also a large gap beneath
the entrance door which admitted rain and the top vent to the kitchen window
was below the door-level opening to the landing. There was no latch or handle
to the bathroom door.
Each of the
flats was found to be seriously affected by mould growth. This court has been
shown photographs illustrating the mould growth and the findings recorded in
the case certainly do not exaggerate the extent of that mould growth. For
example, in relation to 6 Artillery Street, the case describes it as having
extensive and substantial mould growth in the bathroom, hall and staircase and
minor mould growth in two bedrooms. The case goes on to recite that the area
around the hall entrance is particularly susceptible to the effects of the
mixing of warm and cold air. In cold weather walls and ceilings of rooms have
been wet.
Having
explained the circumstances in which mould growth of this sort occurs, the case
goes on to recite, in relation to each premises, that mould can have an adverse
effect on the health of the occupants. Sensitive persons may react in a way
similar to those sensitive to pollen. Prolonged exposure of persons not
normally sensitive to mould can cause fever-like reactions with coughing and
breathing difficulties and may cause attacks of asthma in known sufferers. It
may also cause food poisoning. It has a deleterious effect on the decorative
state of the premises and is likely to have a depressive effect on the
occupants.
There are also
recorded findings as to the extent of the insulation in the premises. In
respect of the upper premises, there was the absence of insulation. I take the
description in relation to 6 Artillery Street as indicative of the sort of
circumstances which existed in each of the premises. The case recites that
calculations based on design temperature, average ‘U’ values, and air changes
show that maximum heat loss from the building substantially exceeds the
available heating output from the fixed fire. Such loss would be exacerbated by
dampness on walls. The absence of loft insulation would give rise to massive
heat loss. The ‘U’ value of the wall construction before cavity insulation indicates
that heat will escape at two and a half times the rate of a wall built to
current standards.
In relation to
each of the properties the stipendiary magistrate was of the opinion that the
substantial quantities of mould existing at the time of the hearing were likely
to cause injury to the health of the occupants. The case also recites in
different terms the conclusion as to the cause of that state of affairs. In
relation to 6 Artillery Street, it states:
I was further
of the opinion that the presence of mould and dampness was due to the act,
default or sufferance of the local authority for the following reasons: (a) the
entrance hall posed special problems beyond the control of the tenant without
the installation of additional heating. (b) In view of the poor thermal
qualities of the premises there was need for improved ventilation in bathroom
and kitchen. (c) The difficulty of opening windows, badly fitted entrance door
and the level of the kitchen vent in relation to the door being contributory
causes.
In relation to
32 Kingston Road, the findings were that the state of affairs was due to the
act, default or sufferance of the local authority for the following reasons:
(a) The flat was of poor thermal quality and the extensive erosion between
bricks externally was a substantial impediment to keeping the fabric warm
enough to prevent condensation occurring internally. (b) The absence of heating
provision in the hall and the gap under the front door were contributory
factors. (c) There was need for improved ventilation in the bathroom and
kitchen.
Finally, in
relation to 42B Kingston Road, the findings as to the cause were that it was
due to the council’s act, default or sufferance for the following reasons: (a)
The entrance hall posed special problems beyond the control of the tenant
without the installation of additional heating. (b) In view of the poor thermal
qualities of the premises there was need for improved ventilation in the
bathroom and kitchen.
It will be
noted that with regard to 42B Kingston Road the cause of the mould was not
attributed to any defect in the state of repair of the premises, unlike the two
other cases.
On the basis
of the findings to which I have referred in each case the stipendiary
magistrate made a nuisance order. At the hearings before him the council had
challenged, first of all, that the presence of the mould could be prejudicial
to health and, second, had challenged the contention of the respondents that
the presence of the mould was due
responsibility for the presence of the mould was due to the acts of the
tenants. It follows from the finding of the stipendiary magistrate that he
rejected both these contentions of the council. His finding with regard to the
first question is not at all surprising. So far as the second contention is
concerned, the finding has to be viewed in the context that these informations
alleged penal matters and therefore the burden of proof which was on the
tenants was a heavy one. The allegations necessary to establish the statutory
nuisance and the cause of that statutory nuisance would have to be proved to
the criminal standard of proof. However, subject to the submissions of Mr Sears
that I will have to deal with hereafter, there was evidence before the
stipendiary magistrate which entitled him to come to the conclusions which he
did, and as long as he was satisfied to the required standard of proof this
court on an appeal cannot interfere with those findings.
So far as 42B
Kingston Road is concerned, where there was no finding that there was any want
of repair, the conclusion of the stipendiary magistrate must have been that
there was some default by the council in relation to the design of the premises
which caused the condensation difficulties and thus the mould which was
injurious to health. In relation to informations of this sort, the stipendiary
magistrate was properly referred to two cases which emphasised the nature of
the factual issues which have to be resolved.
The earlier of
those cases was the case of Dover District Council v Farrar
(1980) 2 HLR 32. In that case the Divisional Court had allowed an appeal
because on the material before the court the inference was that the cause of
the condensation which there existed was due to the fact that tenants, because
of the expense involved in using the heating system provided, did not make
adequate use of that heating system. In those circumstances, this court
stressed that there was no responsibility on the local authority for the
statutory nuisance.
In the other
case, which is also a decision of this court, namely Greater London Council
v London Borough of Tower Hamlets (1983) 15 HLR 54, the judgment in
which was delivered on June 8 1983, the court came to a different conclusion
because there the Greater London Council had interfered with the ventilation
which had originally been provided in the premises by blocking up the flue for
an open fire.
In giving the
judgment of this court, Griffiths LJ said:
If it is
shown in any further inquiry into condensation in this flat that the landlord
had done everything reasonable and the cause of the continuing condensation is
that the tenant is unwilling to use the appliances or any reasonable
alternative means of heating the flat, then the landlord cannot be held
responsible for the ensuing state of the premises.
The way that
Mr Sears developed his argument was as follows. He accepted that the facts to
which I have referred disclosed a disturbing set of circumstances so far as the
accommodation provided by the council is concerned. But he submitted that the
obligations of the council are limited to those which they owe as a landlord to
their tenants and they should not be treated in any different way from the
manner in which a private landlord would be treated in respect of his
obligations to his tenants.
In the case of
the particular tenants there was no express obligation to repair and the
obligation that the council was under was therefore the implied obligation
which arises as a result of the provisions of section 32 of the Housing Act
1961 applying to council tenants. He submitted that except in relation to minor
matters which he contended were of no significance in relation to the findings
in these cases there was no breach by the council of their obligations under
section 32 of the Housing Act 1961. Certainly so far as 42B Kingston Road is
concerned, I am happy to approach the matter on the basis that Mr Sears is
correct in that submission and that here, as the properties were erected
according to the building regulations and as there was no contravention of the
implied obligation under section 32, this really is a case where it could not
be said that the landlords, qua landlords, were in breach of any
obligation.
However, it is
my view that while the fact that a landlord, be it a council or a private
landlord, is not shown to be in breach of its obligations as a landlord may be
persuasive in establishing as a matter of fact that if a statutory nuisance
exists it is not one for which the landlord or council is responsible, it is
not conclusive in the matter. If it can be shown that there is an act, default
or sufferance by a council or a private landlord which gives rise to a
statutory nuisance then, notwithstanding there is no such breach of their
obligations, they are still responsible for that statutory nuisance and the
council or landlord can be required to take those steps which are necessary to
abate such a nuisance.
The view which
I have just expressed appears to me to be in accord with the approach of Lord
Wilberforce in the case to which I have already made reference. It is also in
accord with the decision in Clayton v Sale Urban District Council
[1926] 1 KB 415, also a decision of this court, but dealing with very different
circumstances and in particular the responsibility of an owner of land where a
nuisance arises because of a river flooding through a breach in a flood bank.
There the court said that the owner could be responsible for the nuisance
notwithstanding that, apart from the relevant section of the Act, he was under
no obligation by contract or otherwise to maintain or repair the flood bank.
Mr Sears, who
very properly drew our attention to the last mentioned case, sought to
distinguish it upon the basis that that should not apply to situations where
the relationship between the person aggrieved and the person subject to the
proceedings was that of landlord and tenant.
So far I have
dealt with the first two matters with which a magistrate is concerned when
considering informations of this sort. There remains the third issue, the
question of what is required to fulfil the obligation of the person whose act,
default or sufferance caused the statutory nuisance to abate that nuisance.
Here, as already indicated, Mr Sears, on behalf of the council, submits that
there is no power in the court to order the landlord or council to carry out
improvements to the premises. What was ordered in this case appears in an
appendix to the case itself.
It is
necessary before referring to the precise terms of what was ordered to indicate
that apparently what happened at the hearing was that the stipendiary
magistrate announced his findings with regard to the existence of the statutory
nuisance and the council’s responsibility for that statutory nuisance and then
adjourned so that terms could be agreed between those representing the tenant
and the solicitor representing the council as to the appropriate form of the
order. Having adjourned for something like an hour and a half, there was then
put before him what was said to be an appropriate agreed order which contained
a schedule of works to remedy the nuisance. The stipendiary magistrate then
included those schedules as part of the nuisance order which he made having
dealt with one matter which was in issue which he determined in the council’s
favour.
Taking 6
Artillery Street as an example of the works which are set out in these
schedules, it includes, among other things, the provision of a heat source to
each room, including the hall and staircase and bathroom by gas-fired central
heating with panel radiators and full controls. It also provides for the
installation of secondary double-glazing and, as appears from the schedule in
relation to one of the other premises, would have also included the requirement
that there should be roof insulation if that work had not already been done.
Furthermore, there was as part of the schedule of works in relation to 42B
Kingston Road a requirement that the cavity walls should be filled with an
appropriate cavity wall insulation in accordance with manufacturers’
instructions. In connection with 32 Kingston Road, there was a requirement that
the electrical system should be rewired.
So far as the
terms of a nuisance order are concerned, Watkins J (as he then was), in the
case of R v Fenny Stratford Justices, ex parte Watney Mann (Midlands)
Ltd [1976] 2 All ER 888 at p 891, referred, first of all, to the case of Nottingham
Corporation v Newton [1974] 2 All ER 760, where Lord Widgery CJ had
indicated that there was a considerable tolerance as regards the precise terms
which a nuisance order should take. He also referred to the speech of Lord
Wilberforce in the Salford City Council case, to which I have already
made reference, and then went on to say:
Those two
quotations serve, in my opinion, to demonstrate that justices, when a complaint
is made to them, be it by a local authority or by three or more aggrieved
persons, have a wide discretion as to what terms they include in any nuisance
order which they feel enabled to make as a result of evidence provided to them.
If I may
respectfully do so, I echo those words and would echo them in the context of
the references which I have already made to the need for justices in
considering informations under Part III of the 1936 Act to exercise the
jurisdiction reasonably, Where there is a situation giving rise to mould growth
of the sort described in the cases which are before this court then clearly it
can be a difficult issue as to precisely what steps are necessary in order to
abate the nuisance. However, it is most important that the justices should bear
in mind the fact that a local authority, such as the present appellant, has
very
not be used as a method of obtaining for particular tenants benefits which they
were well aware did not exist when they took the tenancies in question and
which if they were provided could put those tenants in a favoured position in
relation to other tenants who are also being housed by the authority.
In this
particular case, because of the procedure which was adopted at the hearing, the
question of what was necessary was not inquired into by the learned stipendiary
magistrate. He had placed before him an agreed schedule of works, so certainly
he cannot be criticised if he included such items as those to which I have
referred, in particular full central heating. However, while I do not accept Mr
Sears’ submission that the magistrate could not require improvements, it should
not be thought that I endorse the provision which has been required in these
three particular cases of central heating of that nature in order to abate
nuisances of this sort. Certainly I would emphasise that this case should not
be, in my view, regarded as a precedent for a schedule of works of the nature I
have indicated. Indeed, so surprising are some of the details in that schedule
that if it had not been for the agreement which was reached between the parties
and the way it had been dealt with before the learned stipendiary magistrate, I
would have taken the view that this was a case where indeed the matter might
have had to be remitted to the learned stipendiary so that the matter could be
gone into properly and the question of what was necessary in the context as I
have sought to emphasise of what is reasonable could have been carefully
considered by the stipendiary magistrate.
However, I do
not propose suggesting that course in this case because I understand as a
result of what the court was told that these three premises are in fact in an
improvement area and it may be the case — indeed we were told that it was the
case — that in relation to these three premises, it was intended in any event
to carry out the work which is described in the schedule. If that was so, I can
well understand why it was possible to agree the terms of the schedule, but
clearly in a different situation no such agreement would be possible. As I have
sought already to stress, in the ordinary case it would certainly need the most
compelling evidence to come to a conclusion that this sort of work was required
in relation to premises of this nature in order to abate a nuisance of the type
which existed.
I should
finally, as a matter of completeness, refer to the three questions which were
raised by the stipendiary magistrate in the case. They are in these terms:
‘Whether it was necessary to find that the appellant was: (i) in material
breach of the building regulations and/or any other statutory or byelaw
requirement at the time of the construction of the premises or the carrying out
of any material work thereon and/or (ii) in breach of any material duty or obligation
(whether contractual or statutory) as landlord before finding that the
existence of the statutory nuisance was due to the act, default or sufferance
of the appellant?’ To that I answer
‘No.’
The second
question was: ‘Whether there was any sufficient evidence to justify a finding
that the existence of the statutory nuisance was due to the act, default or
sufferance of the appellant?’ To that I
answer ‘Yes.’
The third
question was: ‘Whether it is possible by way of a nuisance order to require the
carrying out of work beyond the scope of the repair of the premises and/or
fixtures and fittings therein, but instead or in addition thereto to improve
the premises and/or provide fixtures, fittings and facilities not present at
the commencement of the letting or provided for by the express or implied terms
of the tenancy?’ Again, to that I reply
‘Yes.’
Agreeing,
WATKINS LJ said: for some time during the hearing of this appeal I was somewhat
concerned about the finding of fact by the learned magistrate to the effect
that it was the appellants who were responsible for the presence of mould and
dampness in these flats; in other words, that that condition was due to the
act, default or sufferance of this local authority. It has to be borne in mind
that these flats have now been in existence since the late 1940s/early 1950s
and so far as I know there was no evidence before the magistrate to suggest
that until comparatively recently there had been any complaint to the
appellants of damage done to the flats by condensation or any other form of
atmosphere which could produce the conditions which are really quite deplorable
as is evidenced by the photographs before us.
Precisely what
evidence came before the magistrate to drive him to that conclusion we are not
told, save in the most summary form, in the cases stated. However, I have in
the end been persuaded upon the basis of that information that there probably
was just about sufficient evidence to enable him to so decide. That being so,
there seems to have been no alternative whatsoever to him to go further and to
conclude that the appellants’ duty was to abate what amounted to a statutory
nuisance as defined in section 92 of the Public Health Act 1936.
What happened
thereafter, however, was highly undesirable and should not, in my judgment, be
repeated. When a local authority or other body is called upon by the court to
abate a statutory nuisance, the exact requirements of the order then made must
be very carefully considered before they are imposed. As my lord has said,
previous cases have indicated that justices when making an order for abatement
have a wide discretion as to the terms of it. That does not mean, however, that
in exercising that discretion they are entitled to impose terms which are
wholly unrelated to the abatement of the nuisance complained of.
Here, it is
abundantly plain that the magistrate did not exercise any discretion at all,
that is to say he did not by his own judgment upon the evidence which had been
placed before him, whatever that was, reach a conclusion as to what was
reasonably necessary to abate the nuisances in the three flats which are the
subject-matter of these appeals. I do not intend, of course, to indicate that
justices are not entitled to invite the parties to reach agreement upon what it
is necessary to do, but once they have had put in their hands the agreement the
decision as to whether or no what is therein contained is reasonably necessary
to cure or abate the statutory nuisance remains a decision for them.
Here, I do not
think there is any doubt at all that some of the terms which were approved by
the magistrate could not conceivably have arisen from the evidence which came
before him as to what was necessary to abate the statutory nuisances. They were
plucked out of the air, so to speak, because, so it seems to me, those
representing the parties at the hearing before the magistrate knew perfectly
well that at some time in the future, as a result of improvements which are to
be made generally to properties in that area, things like central heating and
possibly double-glazing will be provided. Were it not for the fact that what
was put before the magistrate was the result of an agreement to which the
appellants were a party, I, too, would have no hesitation in sending this case back
so that the schedule should be reconsidered with a view to substantial
amendment. But seeing that the appellants were a party to the agreement I think
it right to refrain from taking that course.
Finally, I
would echo what my lord has said about these cases not being taken by anyone to
be a precedent for the future if and when complaint is made about the condition
of other flats which are owned by the appellants or, indeed, any other local
authority with like responsibilities.
For the
reasons which my lord has given and for those which I have felt it necessary to
express, this appeal is dismissed.
The appeals
were dismissed with costs; leave to appeal further not given.
