Public Health Act 1936–Abatement of statutory nuisance–Complaint by occupiers under section 99 of Act against borough as owner of premises–Allegation that premises were prejudicial to health or a nuisance–Magistrates’ order to owner to carry out remedial works varied by crown court on appeal by allowing more time for completion–Further appeal by borough to divisional court by case stated–Submission by borough that by date of crown court hearing the nuisance had in fact been abated, although works had not been carried out, because the house was no longer occupied by complainants or anybody else–Held that the crown court had acted correctly in varying time for completion of works and in holding that the nuisance had not been abated–Abatement of a statutory nuisance is not achieved by the mere vacation of the premises, but involves carrying out the appropriate remedial works–Borough’s appeal dismissed
This was an
appeal by the London Borough of Lambeth, the owner of premises at 10 Melbourne
Square in the borough, from a decision of the Inner London Crown Court. The
proceedings arose from a complaint by Alfred Stubbs and Denise Stubbs, his
wife, under section 99 of the Public Health Act 1936, as occupiers, that the premises
were in such a state as to be prejudicial to health or a nuisance. The
magistrates on the hearing of the complaint made an order for certain remedial
works to be carried out within time-limits specified in the order. The borough
appealed to the Inner London Crown Court, who amended the magistrates’ order in
certain respects, including a relaxation of the time-limits. The borough
appealed by case stated to the divisional court, submitting that the crown
court should have allowed their appeal against the nuisance order.
D Keane
(instructed by the director of administration and legal services, Lambeth
Borough Council) appeared on behalf of the appellant borough; D Altaras
(instructed by Andrew Waite, Lambeth Community Law Centre) represented the
respondents.
Giving
judgment, WALLER LJ said: This is an appeal by way of case stated from a
decision of the Inner London Crown Court, given on June 9 1978. It concerns the
Public Health Act 1936 and in particular the sections following section 92
dealing with statutory nuisances.
Before going
to the case I will set out the chronology of what happened. The premises, 10
Melbourne Square in the London Borough of Lambeth, were occupied by Mr and Mrs
Stubbs. They laid information that they were aggrieved persons in that the
premises were in such a state as to be prejudicial to health or a nuisance
contrary to section 99 of the Public Health Act 1936. The information set out a
large number of faults which they said required remedying.
On June 21
1977 that case was heard by the magistrates and an order was made in the terms
of the information which had been laid with these time-limits:
It having
been admitted by you the said owner–
the owner
being the Lambeth Borough Council
–that the
said nuisances so exist, and that they are caused by your act, default or
sufferance, it is this day ordered that you the said owner do the said works
and things to abate the said nuisances. (This Order to take effect from the
date on which the tenants vacate the said premises.) Within 21 days to repair the roof, windows
and to do other ancillary work to make the premises watertight. Within 42 days
to abate the other nuisances listed above.
On October 26
1977 the Stubbs family were rehoused and 10 Melbourne Square was left vacant.
Meanwhile there
had been an appeal lodged to the Inner London Crown Court and the Inner London
Crown Court heard that appeal on December 8 and 9 1977 and, as I have already
stated, in due course they signed a case in June 1978.
The effect of
the Inner London Crown Court’s decision was to amend the order made by the
magistrates’ court by deleting the words ‘or a nuisance’–the information had
said ‘namely premises in such a state as to be prejudicial to health, or a
nuisance’–and by altering the time-limits in the following way: the ‘within 21
days’ was to be dated from December 9 (that is the day of the hearing at the
court) to repair the roof, windows and to do other ancillary work to make the
premises watertight. The remainder of the matters which were said to be prejudicial
to health were to be amended within 12 months from that date.
The only other
fact that I should mention is that on April 19 1979 10 Melbourne Square was
demolished. Mr Keane has submitted that this court should nevertheless deal
with the matters raised in this particular appeal, because there are many
similar cases in which the facts are largely similar, or where perhaps the
premises have actually been demolished before the case would have come before
this court, and we have accordingly continued to hear this case.
His main
submission was that the nuisance had been abated by the time the case was heard
by the Inner London Crown Court and therefore the appeal should have been
allowed not, as I understand it, only in relation to the remedies proposed, but
in relation to the finding of a nuisance.
It is
necessary to refer to sections of the Public Health Act which affect this
particular case.
Section 92 of
the Public Health Act 1936, so far as relevant, reads as follows:
(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. . . .
There then
follow five other categories of statutory nuisances which it is unnecessary to
repeat here, save perhaps (b), being one of a different kind, namely keeping of
an animal so as to be prejudicial to health or a nuisance.
Section 93
provides for the service of an abatement notice:
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
to abate the nuisance and to execute such works and to take such steps as may
be necessary for that purpose.
There follows a
proviso again which I do not think I need repeat.
Section 94
provides that ‘If the person on whom an abatement notice has been served makes
default in complying with any of the requirements of the notice,’ then the
authority can cause a complaint to be made, and on the hearing of the complaint
the court shall make an order
(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; (b) prohibiting a recurrence of the nuisance, and
requiring the defendant, within a time specified in the order, to execute any
works necessary to prevent a recurrence. . . .
There is a
provision for a fine and there is also provision for making an order
prohibiting the use of the building for the purposes of human habitation until
it has been rendered fit for human habitation.
Section 95(1):
Any person
who fails without reasonable excuse to comply with, or knowingly contravenes, a
nuisance order shall be liable to a fine. . . .
Section 99:
Complaint of
the existence of a statutory nuisance under this Act may be made to 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 a complaint 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.
Mr Keane’s
main submission was that by the time this appeal was heard by the crown court,
the nuisance had been abated, because 10 Melbourne Square was no longer
occupied by the Stubbs family or by anybody else as a dwelling-house. He
submitted that in those circumstances the form of order made by the crown court
should have been in the extreme case–putting his submission at its highest–that
the appeal should have been allowed, because the nuisance had been abated by
the time of that hearing. Alternatively, if there was a finding that there was
in fact a nuisance at the time when the complaint was made, the crown court
should have held that the nuisance had been abated because the house was no
longer occupied by the complainant or by anyone else.
It should be
noted that no order had been made under section 94(2) prohibiting the use of
the house for human habitation, so that theoretically it was possible at any
time for the house to be relet, though of course it is not suggested in this
case that Lambeth Borough Council, as a responsible authority, would have done
such a thing. But the theoretical position was that it would have been a
possibility.
We have been
referred to a number of cases dealing with the various problems that have
arisen under these sections. As I see it, on that very first submission that Mr
Keane has made, it is not a question of authority, but a question of the words
of the section. Mr Altaras on behalf of the respondents has submitted that
there are two sides to the problem which preserve the position of the local
authority in a case of this sort without any of the extreme results for which
Mr Keane was contending.
In my opinion
it is not sufficient to say that a nuisance has been abated because the
dwelling-house has been vacated. Mr Altaras submits that the whole purport of
these sections is to order work to be done; and the words of section 93, which
I have already quoted, ‘requiring (the owner) to abate the nuisance and to
execute such works and take such steps as may be necessary for that purpose’
indicate that that is the purpose of these provisions. As it seems to me, the
original finding was that the premises were in such a state as to be
prejudicial to health, and if the tenants are removed nothing has been done to
alter the state of the premises. They remain prejudicial to health even if
nobody goes and lives in those premises. I should quote one other subsection in
dealing with the question of ‘prejudicial to health,’ because ‘prejudicial to
health’ is defined in section 343 as meaning ‘injurious, or likely to cause
injury, to health.’ All that is being
done by removing the tenants from the house is to reduce the likelihood of
injury, but at any time, if anybody went back into the house, the likelihood of
injury would increase and there would be somebody whose health would be likely
to be prejudiced by the state of the house. As it seems to me, in order to
abate the statutory nuisance, something must be done to the house. So I would
be against Mr Keane’s main submission. Prohibiting occupation simply avoids
injury to health, the danger remains and therefore the nuisance is not
affected.
Mr Keane went
on to make submissions about the kind of order that should be made and it is,
in my judgment, helpful to consider the words of Lord Widgery CJ in Nottingham
City District Council v Newton [1974] 1 WLR 923 at p 930. That was a
case where problems arose as a result of a clearance order being made and an
appeal pending against some parts of the clearance order when information about
infringements of the Public Health Act were laid. It was a case where there
were difficulties as to what the precise order should be when the final
disposition of the house under the clearance order had not been decided at the
time of the hearing by the court. It is unnecessary to deal further with the
facts of that case, but it is helpful to read the observations of Lord Widgery
at p 930. He had said that there was a discretion in the court as to the order
that they made, and went on to say:
In deciding
within that wide ambit of detailed discretion just what the terms of the
nuisance order should be, I have no doubt it is the duty of the justices, as
commonsense dictates, to look at the whole circumstances of the case and to try
and make an order which is in its terms sensible and just having regard to the
entire prevailing situation. They were wrong in my judgment in closing their
eyes to the Housing Act proceedings and the imminence of demolition, and had
they had regard to those factors as well as all the other relevant factors, it
may be that they would have provided for the nuisance to be abated by perhaps
March 1974 so that if the demolition proceedings had taken effect meanwhile,
the danger of money being spent on the house abortively in view of the
subsequent demolition would be avoided.
I think the
justices were very nearly right in this case, but I conclude that they were
wrong in restricting the factors to which they had regard, and I think this
appeal should be allowed to the extent that the case should be sent back to the
justices asking them to reconsider their decision in the light of the discretion
within the precise terms of section 94(2) and in the light of all the
prevailing circumstances, and endeavour to come to what seems to them to be a
sensible and just conclusion.
Lord Widgery
was stressing at the beginning of that passage what commonsense dictates. He
was stressing that the justices should have in mind a decision which will avoid
the possibility of public money being wasted because of the subsequent
demolition, and saying that the conclusion should be a sensible and just one.
The appeal that we are hearing is an appeal from the crown court where, as it
seems to me, the crown court did very much what Lord Widgery envisaged in that
particular paragraph. They maintained the short time on the more serious
defects and very much lengthened the time on the remaining defects.
But Mr Keane
was submitting that although the crown court did all that, the fact remains
that the local authority were disobeying that order, because, although the
crown court made the order on December 9 1977 the premises were not demolished
until April 19 1979. And Mr Keane submitted, an order having been made that
certain of the defects should be remedied within 21 days of December 9 1977,
the local authority were in breach of the order of the crown court and by
inference it was wrong to leave a local authority in breach when it was their
intention to demolish the premises even though the
Mr Altaras, in
answer to that submission, lays emphasis on the provision in section 95.
Section 95 deals with the penalty for contravention of a nuisance order and
abatement of nuisance by local authority. He lays emphasis on the words ‘Any
person who fails without reasonable excuse to comply with, or knowingly contravenes,
a nuisance order shall be liable to a fine . . .’ and he submits that if there
were anybody aggrieved by the failure to comply with the order, the local
authority will be able to present a case to the magistrates that they had
reasonable excuse for not complying by saying that they had plans for the
demolition of the house within the foreseeable future, and the magistrates no
doubt would take the view that that was a reasonable excuse. But there was also
another side to the coin, that on there being no tenant in the house, the
tenants having been rehoused, there would no longer be any person aggrieved who
would be interested in taking such action. So in my judgment the two limbs
which Mr Keane has put before us fail.
I hope in what
I have said I indicated that the local authority should not be in great
difficulties by proceedings of this sort, because if they have a reasonable
case for saying that they are going to demolish the particular property, then
no doubt the magistrates hearing the case will take that into account and make
an order which will not involve a waste of public money by causing work to be
done which is thereafter to be wasted.
The particular
questions asked by the crown court are these: ‘(i) Whether, on such an appeal
from petty sessions to crown court, the crown court is entitled to take account
of evidence of facts which have occurred since the hearing at petty
sessions?’ My answer to that would be
‘No, in so far as there was a finding of a statutory nuisance at the time of
the hearing by the magistrates; yes, in so far as they consider what action
should be taken as a result of that.’
The second question was: ‘Whether, when premises are found to be a
statutory nuisance within section 92(1) of the Public Health Act 1936, by
reason solely of the fact that they are in such a state as to be prejudicial to
health of occupiers thereof, such statutory nuisances may properly and lawfully
be abated by obtaining and keeping vacant possession of the premises?’ It should be clear from what I have already
said that the answer to that question is ‘No.’
The third question does not arise.
In those
circumstances I would dismiss this appeal.
Agreeing,
STEPHEN BROWN J said: This is, as my Lord, Waller LJ, has said, an appeal from
the crown court and not from the justices who heard the summonses in the first
instance. It is abundantly apparent, in my judgment, that the crown court was
fully justified in making the order which it made, that is to say, an order
which varied the original order made by the justices and varying it in favour
of the appellants. It was entirely within their discretion and I cannot see
that that exercise of their discretion was in any way improper.
The specific
ground of appeal which might have resulted, if successful, in the nuisance
order being quashed related to the time at which the nuisance was alleged to
have existed. I think it is clear from the decision in Northern Ireland
Trailers Ltd v Preston Corporation [1972] 1 WLR 203 that the
relevant date is the date of the information. Accordingly the crown court was
bound to consider the state of affairs at that date. Of course it was open to
them–and indeed they acted upon–the changed circumstances which had occurred
since the original hearing before the justices.
In one sense this
is not a very useful basis for an appeal to this court by the appellants who
seek a statement of principle from this court, because it seems to me that the
ordinary appellate process had been successfully pursued by the appellants.
They had appealed, as they were entitled to appeal, from the decision of the
justices to the crown court and they achieved an order from the crown court
which appears to have met their circumstances.
What Mr Keane
was inviting this court to do was to lay down as a general principle that if
the owner of a property in the position of the local authority found itself in
a position where it did in fact own premises which were so defective that they
were in a state which was prejudicial to health, it should be allowed to choose
whether to execute repairs so as to put the premises into a state not
prejudicial to health, or alternatively to seek to obtain and to obtain vacant
possession of the premises and to maintain vacant possession of the premises. I
do not think that the Public Health Act 1936 permits such a choice to be made.
The object of the Act is directed to the execution of remedial works so that
the premises as ‘premises’ should be put into a state which was not prejudicial
to health. It is of course always open to a court before which the matter may
come to consider on the facts the time which should be allowed, and the precise
nature of the works which should be ordered and it should do that, as my Lord,
Waller LJ, has said, in the exercise of commonsense with a view to saving
public expenditure.
It is of
course an underlying feature of the legislation with which this court is
concerned that the provisions of the Public Health Act 1936 are principally
directed towards individual or private owners of property. That is evident from
the fact that the Act requires, or provides, in a number of sections that a
local authority may step in to execute remedial work if the work is not done by
the private owner. However, it is settled law that the provisions of the Public
Health Act apply to local authorities. It would not of course be appropriate to
put the local authority as an owner in a better or different position from that
of a private or individual owner of property.
It seems to
me, therefore, that the only appropriate statement of principle which can be
given in order to assist the appellants in considering their position is that
the Act contemplates, and in my judgment provides, that where a nuisance is required
to be remedied, and that nuisance derives from the defective physical state of
the premises, the remedial provisions require the execution of works in order
to put the property into a satisfactory condition. As I have already observed,
consideration should be given to allowing sufficient time for other events to
mature.
In my judgment
the crown court acted perfectly correctly in this case and the order which it
made was one which was appropriate in the circumstances and entirely within its
discretion.
The appeal
was dismissed with costs. A certificate for appeal to the House of Lords on a
point of law of general public importance was refused.