Premises — Statutory nuisance — Abatement notice — Inadequate noise insulation — Property in state prejudicial to health — Council refusing to serve abatement notice — Whether poor noise insulation making premises prejudicial to health — Whether council failing to comply with statutory obligation to serve abatement notice — Claim dismissed
The claimant was the tenant of a ground-floor flat. From January 2001, he had complained to his landlord (the interested party) about “incessant” noise transference from the flat above and from the communal hallway and stairs.
An environmental consultant concluded that the poor sound insulation in the flat failed the airborne sound requirement under the Building Regulations 1976 and the current Approved Building Regulations 1992, so as to render the premises prejudicial to health, or create a nuisance under section 79 of the Environmental Protection Act 1990.
The defendant council investigated the claim of statutory nuisance, pursuant to section 79(1) of the 1990 Act, but concluded that the premises could not be classified as creating a statutory nuisance. Accordingly, they took the view that serving an abatement notice on either the interested party, as landlord, or the claimant’s neighbour, could not be justified.
The claimant applied for judicial review of that decision, contending that the defendants had erred in law in failing to serve an abatement notice since the premises were in such a state as to be prejudicial to health or that they were creating a nuisance because of the inadequate sound insulation, within section 79(1)(a) of the 1990 Act.
Held: The claim was dismissed.
The defendants’ refusal to serve an abatement notice had been correct and should be upheld. Inadequate sound insulation could not cause premises to be in such a state as to be prejudicial to health for the purposes of section 79(1)(a): Birmingham City Council v Oakley [2001] 1 AC 617 and R v Bristol City Council, ex parte Everett [1999] 3 PLR 14 applied.
The long-established meaning of the provision would have to be widened considerably in order to cover a situation in which the state of the premises did not itself cause a risk to health but merely failed to prevent external activities from causing such a risk. In the present case, the inadequate sound insulation did not threaten the claimant’s health, such as an accumulation of debris might do. The activities of the other tenants gave rise to the prejudice to the claimant’s health and this was unrelated to “the state” of the premises.
The premises in this case were not in such a state as to be injurious or likely to cause injury to health since they were not defective, unwholesome, filthy or verminous; they simply did not prevent the transmission of noise.
If the claimant’s interpretation of section 79(1)(a) were correct, statutory nuisances would exist on an enormous scale, not only because of noise from neighbours but also because of noise from other sources. Social and private landlords would face an immense financial burden were the courts to require the immediate upgrading of properties to a standard of sound insulation that had not been not required when they were constructed or adapted.
David Watkinson (instructed by Hackney Law Centre) appeared for the claimant; Andrew Arden QC and Jonathan Manning (instructed by Judge & Priestley, of Bromley) appeared for the defendants; Christopher Baker (instructed by Devonshire Solicitors) appeared for the interested party, London & Quadrant Housing Trust.
Eileen O’Grady, barrister
