Inert material such as broken glass and scrap metal tipped on a site does not constitute a statutory nuisance merely on the basis that people (even children) going on to the site might cut themselves or suffer similar physical injury
This was an
appeal by Coventry City Council from a decision of Coventry justices on April
30 1974 upon a complaint by the respondent, Mr George Cartwright, issuing an
order under section 92 (1) of the Public Health Act 1936 by which the
appellants were required to abate a statutory nuisance existing on land owned
by them in Arthur Street, Coventry.
Mr A Cripps QC
and Mr K Simpson (instructed by Sharpe, Pritchard & Co, agents for
Sarginson & Co, of Coventry) appeared for the appellants, and Mr S Sedley
(instructed by the Solicitor to the Community Law Centre, Coventry) represented
the respondent.
Giving
judgment, LORD WIDGERY said that the appellants owned land in Arthur Street
which was a vacant site formerly occupied by houses. Demolition of the houses
had taken place some three or four years ago and the site was awaiting
redevelopment. The justices found that since demolition the appellants had
allowed indiscriminate tipping. Although household refuse had been periodically
removed, there remained on the site quantities of building refuse, broken glass
and scrap metal. The site was used by children for play or as a short cut to
and from school. The justices decided that the building refuse, broken glass
and scrap metal constituted a nuisance within the meaning of section 92 (1) (c)
of the Public Health Act 1936, and made an abatement order. The appellants now
contended that the inert material left on the land did not come within the
words of paragraph (c), ‘any accumulation or deposit which is prejudicial to
health or a nuisance.’ It was necessary
to read that paragraph in conjunction with the definition of ‘prejudicial to
health’ in section 343 of the Act, which was ‘injurious, or likely to cause
injury to health.’ The justices put
their decision on two clear bases. They thought first that the tipping of
materials such as were referred to was dangerous to health and limb and
constituted a particular hazard, especially where there were children concerned
who had easy access to the site. In other words, they found that people,
particularly children, might hurt themselves on the site and that this was a
threat to health. Secondly, the justices had regard to the visual impact of the
pile of rubbish, which was within view of a number of occupied houses and
could, they thought, constitute a nuisance within paragraph (c). The respondent
supported the decision below on the justices’ first ground, that the inert
material presented a source of possible physical injury from cuts and the like
which was sufficient to justify the assertion that the accumulation on the site
was prejudicial to health.
He (his
Lordship) thought that that was taking too wide a view of the section. The Act
was aimed at accumulations of material which produced a threat to health in the
sense of disease, vermin and the like. There was only a limited amount of
authority on the point, but the court had been assisted by the case of Great
Western Railway v Bishop (1872) LR 7 QB 550. In that case the
appellants were the owners of a railway bridge over a highway. Rain collected
on the bridge and dropped on to the highway and persons walking along the
highway. The justices made an abatement order, but the Divisional Court held
that the relevant statute, the Nuisances Removal Act 1855, was a sanitary
enactment which applied only to nuisances injurious to health. Then there was Bishop
Auckland Local Board v Bishop Auckland Iron & Steel Co Ltd
(1882) 10 QBD 138, in which an offence was held to be committed within the
section of the Public Health Act 1875 corresponding to section 92 (1) (c) where
an accumulation emitted offensive smells which interfered with comfort but were
not injurious to health. That was consistent with the view he (Lord Widgery)
had formed of the extent of the section, that it was concerned with effluvia
and the like, which had always been the concern of public health authorities.
In Galer v Morrissey [1955] 1 WLR 110 the noise of greyhounds was
held not to fall within the Act; he (his Lordship) would have thought that a
noisy animal could as much be prejudicial to health as a smelly animal, so that
the decision in that case further reinforced the view that the general purpose
of the Act was to stop accumulations with a public health consequence, those
which tended to create smell or smoke or other emanations of that kind. The
appeal should be allowed.
Agreeing,
ASHWORTH J said that the case was somewhere near the border-line, but on the
material before the court the order below could not be upheld.
MICHAEL DAVIES
J also agreed, and the appeal was allowed, with costs out of central funds. The
court certified that the case raised a point of law of general public
importance, but refused the respondent leave to appeal to the House of Lords.
