Nuisance order quashed–Interference with situation of occupier alone insufficient to constitute nuisance–Betts v Penge UDC held to have been overruled by the House of Lords in McNally’s case–Nuisance means a private or public nuisance as understood by the Common Law
This was an
appeal by the National Coal Board, owners of a house at 38 Roman Road, Banwen,
Neath, against a nuisance order under section 92 (1) (a) of the Public Health
Act made in April 1975 by Neath justices on the application of the respondent,
Mr Ivor Harold Kelland Thorne, clerk to the Neath Borough Council.
Mr J Roch
(instructed by R V Cowles, solicitor, National Coal Board) appeared for the
appellants, and Mr A Fletcher (instructed by Sharpe, Pritchard & Co, agents
for I H K Thorne, clerk and chief officer of Neath Borough Council) represented
the respondent.
Giving the
first judgment, WATKINS J said that under section 91 of the Public Health Act
of 1936 the local authority had a duty to inspect premises within their area.
An officer of the council inspected the premises in question and found them to
be in a state of disrepair in that there were two defective windows, no stop
end for a rainwater gutter and a defective skirting board, and the local
authority considered that a nuisance within the meaning of section 92 (1) (a)
was present in the premises and issued an abatement notice. The board did
nothing to abate the so-called nuisance and an information was laid against
them. The local justices heard the information and issued a nuisance order.
Nothing was said at the hearing suggestive of the fact that there had been any
injury or anticipated injury to the health of persons residing in the premises
or in any premises adjoining them. The information was laid simply on the basis
that there was present at the material time a nuisance.
The short
point arising therefore in the present appeal was what was the meaning of
‘nuisance’ in section 92 (1) (a). In Betts v Penge Urban District
Council [1942] 2 KB 154 the landlord of a flat of which the rent was in
arrears removed the front door and some of the window sashes thereby
interfering with the occupier’s personal comfort. It was held that it was
sufficient to sustain a conviction for permitting a statutory nuisance to prove
that by the landlord’s act or default the premises were in such a state as to
interfere with the personal comfort of occupiers without necessarily being
injurious to health. If that was correct, the justices in the present case could
not be criticised for issuing a nuisance order. But counsel for the board said
that the word ‘nuisance’ in the section did not have the meaning attached to it
by the Betts’s case and must be understood to equate with the same word
as that is understood at common law in relation to nuisances public or private,
in other words an act or omission which materially affected the material
comfort and quality of life of a class of subjects or an interference for a
substantial length of time by owners or occupiers of property with the use or
enjoyment of neighbouring property.
The justices,
feeling bound to follow Betts, found that a nuisance could exist in a
dwelling-house in relation to the occupier of it. That was alien to the concept
of common law private nuisance. When the justices reached their conclusion Salford
City Council v McNally [1975] 3 WLR 87 had not been decided in the
House of Lords. Lord Wilberforce said in that case that the use of the words
‘personal comfort’ had caused confusion in some of the cases; that health was
not the same as comfort, and interference with the latter did not bring a case
within the ‘health’ limb of the Public Health Act. In his (Lord Wilberforce’s)
opinion Bett’s case was guilty of that confusion
Lord Edmund-Davies said that the House was not called on to determine the
correctness of the decision in Betts’s case, but for his part he thought
it desirable to make clear that he thought it was wrongly decided, and Lord
Cross and Lord Fraser of Tullybelton agreed. Both counsel in the present case
had agreed that the effect of the speeches in the House of Lords was such as to
cause the court to state that Betts was in fact wrongly decided, and he
(his Lordship) was of the same opinion. That meant that a nuisance could not
arise if what had taken place affected only the person or persons occupying the
premises where the nuisance was said to have taken place. The nuisance within
the meaning of the 1936 Act must be a private or public nuisance as understood
by the common law, and the justices’ order should accordingly be quashed.
Counsel for the board had put forward the further argument that not only must a
statutory nuisance be private or public at common law but also it must be such
as comes within the spirit of the Public Health Act. It was an attractive
proposition to say that the kind of nuisance complained of must be directed to
the health of the person claiming to be affected, but the application of such a
principle might be difficult in certain circumstances. The court was not called
on, however, to determine that particular question and it was better left for
resolution on another day.
KILNER BROWN J
and LORD WIDGERY agreed, and the appeal was allowed.
