Council house posing hazards for occupier’s hyperactive autistic child – Occupier prosecuting council for alleged statutory nuisance – Whether “prejudicial to health” calls for subjective or objective interpretation
In May 1994 the appellant and her two children moved into a small council-owned house in Acocks Green, Birmingham. The kitchen, which was no more than 2.24m x 2.39m and possessed four doorways plus another to a walk-in cupboard, posed particular hazards for her 11-year old son. Suffering severely from an autistic-spectrum syndrome, and having no sense of danger, the son could not be restrained from bursting into the kitchen and indulging an obsession for slamming doors. Having been advised that the council, as a local authority landlord of domestic premises, could be prosecuted under the Environmental Health Act 1990 where such premises were in a state of nuisance, the appellant called upon the council to make the house safe for her son. It was common ground that that objective could only be achieved by constructing a new bathroom/wc at the rear of the property and incorporating the existing bathroom area into an enlarged kitchen. Having rejected the council’s offer to execute less extensive works, the appellant served a notice on the council under section 82(6) of the Act requiring them to abate the nuisance within 21 days. On October 31 1995 the appellant, acting through solicitors, laid an information before Birmingham Magistrates’ Court alleging failure to abate a statutory nuisance contrary to section 79(1)(a) of the Act, such nuisance being defined by that section so as to include “any premises in such a state as to be prejudicial to health or a nuisance”. The magistrate, having ruled that a nuisance existed by reason of the threat to the health of the son, nevertheless acquitted the council on finding that the notice had failed to specify the relevant consequences of his disability. The appeal was lodged in the Divisional Court by way of case stated.
Held The appeal was dismissed.
1. The magistrate was wrong in placing a subjective interpretation on the expression “prejudicial to health” which though quite separate from the concept of “nuisance” called for the same disregard of the personal infirmities of the occupier. To hold otherwise would place an intolerable burden on council landlords whose liability would vary from one occupier to another: see Southwark London Borough Council v Ince (1989) 21 HLR 504, per Woolf LJ at p510, and the analogous considerations arising under the Housing Acts on the question of fitness for human habitation: see Woodfall, Landlord and Tenant, para 13.015.
2. In the light of the above, the validity of the notice ceased to be in issue.
Richard Gordon QC and Roderick Henderson (instructed by McGrath & Co, of Birmingham) appeared for the appellant; James Findlay (instructed by the solicitor to Birmingham City Council) appeared for the respondents.