Council serving notice on landlord requiring bagging-up of household waste ready for collection – Landlord refusing – Council claiming costs incurred in taking steps required by notice – Prevention of Damage by Pests Act 1949 – County court allowing claim – Appeal allowed
The defendant landlord owned numbers 32, 34 and 36 Autumn Avenue, Leeds, which he let to students under assured shorthold tenancy agreements. The properties shared a communal bin yard with 30 Autumn Avenue, which was not owned by the defendant. The claimant council were the waste-collection authority for the area. They had contracted out their waste-collection responsibilities to a private company on terms whereby the contractors’ responsibilities were limited to collecting not more than two sacks of household waste per household on each of their rounds. During 1992 putrefying domestic waste piled up in the bin yard. After a visit by an environmental health officer the council served a notice on the defendant pursuant to section 4 of the Prevention of Damage by Pests Act 1949. It required him, within 28 days, to place all the household waste from the communal bin yard into bags ready for collection by the council. The defendant refused to comply with the notice and returned it. As a result, the council made their own arrangements for the work to be carried out and issued proceedings pursuant to section 5 of the 1949 Act to recover the expenses they incurred in carrying out the work. The district judge dismissed the council’s claim.
The county court set aside the district judge’s decision and awarded the council £352.54. It held that section 45 of the Environmental Protection Act 1990 created a private law duty to collect household waste which the council owed to the occupiers of domestic property and not to non-occupying owners such as the defendant. Section 2 of the 1949 Act placed an independent and separate duty on the council to secure that the district was kept free of rats and mice, and that their entitlement to serve a notice under section 4 of the 1949 Act was not qualified by the existence of their duty to collect household waste under the 1990 Act. Accordingly, even if the council were in breach of duty to the occupiers to clear the rubbish, they had the right to exercise their separate powers under the 1949 Act if the conditions for the exercise of those powers were met. The defendant appealed.
Held: The appeal was allowed.
1. The judge was wrong to characterise the council’s duty under section 45 of the 1990 Act as a private law duty owed to the occupiers alone. It was a public law duty, the performance of which the High Court could require by an order of mandamus.
2. The waste had been allowed to arise by reason of the council’s breach of duty under section 45(1) of the 1990 Act, and by requiring the defendant to place the waste into bags ready for collection, they had imposed on the defendant the cost of discharging an obligation that parliament had imposed on the council. Therefore the council’s decision to serve a notice under section 4 of the 1949 Act was ultra vires: Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240; R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720 applied.
3. If the council had required the occupiers to place the waste for collection in specified a receptacle under section 46(1) of the 1990 Act, they would have been lawfully entitled to serve a section 4(1) of the 1949 Act notice on the defendant who had the power to take steps to ensure his tenants did not let uncontained household waste pile up in the bin yard.
4. The council needed to consider carefully what steps they might take to make proper use of the section 46 of the 1990 Act mechanisms since the notices required by the section did not have to be particularly formal, provided that they set out the council’s requirements clearly. It would be sufficient for them to be addressed to “the Occupier(s)”.
James Allen QC and Christopher Dodd (instructed by the solicitor to Leeds City Council) appeared for the claimants; Jonathan Manning (instructed by Bury & Walkers, of Leeds) appeared for the defendant.
Thomas Elliott, barrister
