Statutory nuisance — Abatement — Staircase — Tenancy — Whether steep internal staircase statutory nuisance — Whether prejudicial to health — Whether abatement notice served on landlord should have been withdrawn
The applicant was the
tenant of residential premises of which the landlord was a housing association.
The premises, a two-bedroom terraced house, contained a steep internal
staircase. In February 1994 the respondent council served an abatement notice
under section 80 of the Environmental Protection Act 1990 on the landlord
requiring it to take out the existing staircase and install a new one; the
council alleged that the staircase was a statutory nuisance. In September 1994
the tenant was granted a tenancy of the premises, having seen and become aware
of the steepness of the staircase. In December 1996 the council withdrew the
abatement notice on receiving legal advice that an excessively steep staircase
could not be considered a statutory nuisance under the 1990 Act. The tenant’s
application for judicial review of that decision was dismissed by Richards
The tenant appealed.
The kind of problem
raised by the steep internal staircase, with its attendant dangers of accident
or physical injury, does not fall within the category of injury addressed by
Part III of the 1990 Act. The provisions relating to statutory nuisances were
concerned with a threat to health in the sense of disease rather than with the
prevention of accidental physical injury from the dangerous state or condition
of the premises. The staircase was not prejudicial to health.
Cases referred to in
the judgments
Birmingham City
Council v Oakley unreported 18 December 1998
Bishop Auckland
Local Board v Bishop Auckland Iron and Steel Co
(1882) 10 QBD 138
Coventry City
Council v Cartwright [1975] 1 WLR 845;
[1975] 2 All ER 99; (1975) 73 LGR 218, DC
Cunningham v Birmingham City Council (1998) 30 HLR 158; [1998] Env LR 1
Great Western
Railway Co v Bishop (1872) 7 LR QB 550
Pearshouse v Birmingham City Council unreported 4 November 1998
R v Bristol City Council, ex parte Everett [1999] 1 WLR 92;
[1998] 3 All ER 603; [1998] 3 EGLR 25; [1998] 42 EG 166; (1998) 77 P&CR 216
R v Parlby (1889) 22 QBD 520
Southwark London
Borough Council v Ince (1989) 21 HLR 504
Turley v King [1944] 2 All ER 489
Appeal for judicial
review
This was an appeal by
Sandra Everett against a decision of Richards J
respondents, Bristol City Council, to withdraw an abatement notice served by
them under the Environmental Protection Act 1990.
Martin Westgate (instructed by Bobbetts Mackan, of Bristol) appeared for the
appellant, Sandra Everett.
QC and Ranjit Bhose (instructed by the solicitor to Bristol City Council)
represented the respondent council.
judgments were delivered.
MUMMERY LJ: This case is concerned with the scope of powers relating to the
abatement of statutory nuisances. The relevant powers are conferred on local
authorities by Part III of the Environmental Protection Act 1990 (the 1990
Act).
Section 79 of the 1990 Act provides:
(1)…the following
matters constitute ‘statutory nuisances’ for the purposes of this Part, that is
to say —
(a) any premises in
such a state as to be prejudicial to health or a nuisance;
The remaining
subparagraphs (b)-(h) expressly mention particular matters that may be
‘prejudicial to health or a nuisance’: smoke, fumes or gases emitted from
premises; dust, steam, smell and other effluvia arising on specified premises;
any accumulation or deposit; any animal kept in such a place or manner as to be
prejudicial to health or a nuisance; and noise emitted from premises or from a
vehicle, machinery or equipment in a street.
Section 79(7) defines
the expression ‘prejudicial to health’ as meaning ‘injurious, or likely to
cause injury, to health’.
There is no statutory
definition of ‘injury’ or ‘health’ in the 1990 Act.
Every local authority
are under a duty to cause their area to be inspected from time to time to
detect any statutory nuisances that ought to be dealt with. Where a complaint
of a statutory nuisance is made to them by a person living within their area,
the local authority are under a duty to take such steps as are reasonably
practicable to investigate the complaint.
Summary enforcement
machinery is contained in section 80, which provides that:
(1) Where a local
authority is satisfied that a statutory nuisance exists, or is likely to occur
or recur, in the area of the authority, the local authority shall serve a
notice (‘an abatement notice’) imposing all or any of the following
requirements —
(a) requiring the
abatement of the nuisance or prohibiting or restricting its occurrence or
recurrence;
(b) requiring the
execution of such works, and the taking of such other steps, as may be
necessary for any of those purposes,
and the notice shall
specify the time or times within which the requirements of the notice are to be
complied with.
The remaining
subsections of section 80 set out the procedure for the
on the owner of premises where the nuisance arises from any defect of a
structural character, with rights of appeal by the person served with a notice.
An offence is committed by a person on whom an abatement notice is served who,
without reasonable excuse, contravenes or fails to comply with any requirement
or prohibition imposed by the notice.
The issue
The principal issue in this case is whether a
steep internal staircase in a 19th century two-bedroom terraced house at 14
Bannerman Road, Easton, Bristol (the property). is in such a state as to be
‘injurious, or likely to cause injury, to health’.
If, as Richards J
held, it is not, then Bristol City Council (the council) had no power to serve
an abatement notice dated 21 February 1994 on the owner of the property, Solon
South West Housing Association, on the complaint of its tenant, Sandra Everett,
the appellant. Richards J also held that, as the state of the staircase was not
capable of falling within section 79(1)(a) of the 1990 Act, the abatement
notice served by the council was not a valid notice and, even if it was, the
council were entitled to withdraw it on 9 December 1996. He accordingly refused
to quash the decision to withdraw the notice or to make a declaration that the
abatement notice remains effective.
Sandra Everett
appeals, with the leave of the judge, against his order dismissing her judicial
review application.
Background facts
A full account of the
facts is set out in the judgment of Richards J reported in [1998] 3 All ER 603.
Only a few points need to be highlighted on this appeal:
1. On 21 February 1994 the council served an
abatement notice on Solon following a report by one of the council’s
environmental health officers that the property constituted a statutory
nuisance because of the steepness of the staircase. The notice required Solon
to take out the existing staircase and to construct a new one in a suitable
position in compliance with current building regulations.
2. Sandra Everett
viewed the property. She was aware of the steepness of the staircase before she
accepted a tenancy of it as from 30 September 1994. At that time she was
capable of coping with the staircase. She later found the staircase difficult
to use because of a back injury. She complained about the state of the
staircase. Solon provided a handrail to the top section of it to improve
safety.
3. On 9 December 1996
the council wrote to the solicitors for Sandra Everett stating that the council
had received legal advice to the effect that the notice dated 21 February 1994
was incorrectly served and that an ‘excessively steep staircase’ could not be
considered a statutory nuisance. The abatement notice was withdrawn.
4. Sandra Everett
applied for judicial review quashing the decision of the council to withdraw
the abatement notice.
The judge formulated
the main issue (at p608b) as follows:
where premises are
in such a state as to create a likelihood of accident causing personal injury,
do they thereby constitute a statutory nuisance within s 79(1)(a) of the 1990
Act?
After carefully
summarising the detailed submissions the judge stated his conclusion succinctly
at p613a:
I have reached the
conclusion that the situation here under consideration is not capable of
giving rise to a statutory nuisance within s 79(1)(a) of the 1990 Act. I accept
the general thrust of Mr Bhose’s [for the council] submissions that this
statutory regime is not intended to apply in cases where the sole concern is
that, by reason of the state of the premises, there is a likelihood of an
accident causing personal injury.
In reaching that conclusion,
I am influenced more by the legislative background and apparent legislative
purpose of the provisions than by their actual language. The expressions
‘prejudicial to health’ and ‘injurious, or likely to cause injury to, health’
may not bring immediately to mind the case of accidental physical injury, but
as a matter of language alone I think that they are capable of embracing it. It
is not a distortion of language to refer to physical injury as an injury to
‘health’, or to describe premises as being ‘likely to cause’ physical injury in
circumstances where the causal mechanism is indirect, in that there is a
likelihood of accident giving rise to such injury.
When one looks,
however, at the legislative history summarised above, it seems reasonably clear
that the expressions were not intended to be so wide in their scope. When
powers to take action against premises that were ‘prejudicial to health’ or
‘injurious to health’ were conferred by the mid-nineteenth century statutes,
the object of concern was plainly the direct effect on people’s health of
filthy or unwholesome premises and the like: in particular, the risk of disease
or illness. There is nothing to suggest that the powers were intended to
protect against the danger of accidental physical injury. Looking at the
legislation as a whole it seems to me that that kind of problem fell outside
the legislative purpose. I do not discern in the subsequent legislative history
any material change in the legislative intention, such as to justify the attribution
of an enlarged scope to the current powers, based as they are on essentially
the same language as used in the original legislation.
The consequence of
that conclusion was that the steep staircase did not constitute a statutory
nuisance. As the judge said at p614g:
If premises cannot
constitute a statutory nuisance by reason of the fact that they are in such a
state as to create a likelihood of accident causing personal injury, it follows
that a steep staircase cannot give rise to a statutory nuisance even if it does
create such a likelihood.
It also followed that
the withdrawal of the abatement notice on 9
and that the application for judicial review should fail. As the judge held at
p615g:
if the situation was
not capable of falling within s 79(1)(a) of the 1990 Act …
it would be pointless for the council to maintain it.
The judge went on to
hold that, even if he were wrong on the main point and the situation was
capable in principle of falling within the relevant provisions, the council had
an implied power to withdraw the abatement notice and they had exercised that
power lawfully in the circumstances of the case.
Prejudicial to
health point
Mr Nigel Pleming QC,
on behalf of Sandra Everett, submitted that section 79(1)(a) of the 1990 Act
applies to cover cases where the sole concern is that the premises are in such
a state that there is a likelihood of injury to health by accidental injury.
He prefaced his
argument on statutory construction with the general comment that the effect of
the judgment was to reverse a settled understanding among environmental health
officers that this class of injury was covered; and that, if the judgment was
upheld, the position would be that a class of injurious and potentially lethal
defects in existing dwellings would not be subject to a generally applicable
method of regulatory correction, as contained in Part III. He suggested, as
obvious examples of a clear likelihood of physical harm to occupants of
premises, defective electrical wiring presenting a risk of electrocution, fire
or smoke; defective gas installations with a risk of poisoning, fire or smoke;
exposed hot pipes with risk of burning; lack of adequate means of escape in the
event of fire; weak, brittle or broken glass in a vulnerable location; slippery
and dangerous surfaces; lack of handrails to stairs, landings or balconies,
with risk of falling; and unsafe kitchen layouts carrying risks of accidental injury,
fire or smoke.
Against the backdrop
of this alarming list of legislative omissions or oversights, Mr Pleming
contended that section 79(1)(a) should be construed as follows:
1. Legislative
language
In their ordinary
meaning, the words ‘injurious, or likely to cause injury to, health’ are apt to
cover accidental physical injury caused by the state of premises. They are not
restricted to infection, disease or other deterioration of a person’s physical
or mental condition. As ‘health’ is not defined in the 1990 Act, it should have
its ordinary everyday meaning, which connotes at least absence from significant
physical injury or illness. There is no justification either in ordinary usage
or statutory context for restricting ‘health’ to freedom from disease or
infection. A person’s health is as much injured or harmed by a broken neck
caused by falling down steep stairs as by an attack of asthma or bronchitis
caused by the insanitary state of the premises. This approach is confirmed by
the difficulty in drawing any rational distinction between what may be
described as ‘ongoing health’ and a single dramatic personal injury suffered as
the result of an accident. Nor is it possible to make any rational or workable
distinction based on how the injury occurred, eg between, on the one
hand, passive exposure to premises in their current state and, on the other
hand, an accident occurring in the course of using the premises. The language
of the section does not justify drawing any distinction by reference to how the
injury occurs or the kind of injury suffered. In brief, there is nothing in
section 79(1)(a) or (7) to detract from the broad general natural meaning of
‘injury to health’.
2. Legislative
history
The plain current
meaning of the legislative language should prevail, unless it is inconsistent
with the intention of parliament. The judge had accepted that, in its ordinary
meaning, the provision is apt to cover accidental personal injury. It was an
error on the part of the judge to conclude that legislative history required
him to reach a conclusion that the likelihood of accidental physical injury
should be excluded from the scope of the legislation. The proper approach to
the 1990 Act is to look at its language and not to attempt to restrict the
scope of it by reference to a meaning gathered from the context of earlier
repealed statutes. In fact, the history of previous Public Health Acts is not a
reliable guide to the interpretation of the 1990 Act. It was pointed put that
the 1990 Act is a consolidating Act. The Act made significant amendments to the
earlier legislation: for example, by introducing new types of nuisance not
found in the Public Health Act 1936, such as fumes and gases and by deleting or
amending others.
3. Case law
The case law prior to
the 1990 Act did not give any settled or restricted meaning to ‘injury to
health’ such as the judge found. Indeed, there were cases that proceeded on the
assumption that dilapidated premises that are dangerous or premises that create
a risk of injury do fall within section 79(1)(a). The following cases were
cited: R v Parlby (1889) 22 QBD 520 at p525; Turley v King
[1944] 2 All ER 489; Cunningham v Birmingham City Council (1998)
30 HLR 158; Southwark London Borough Council v Ince
(1989) 21 HLR 504; and Pearshouse v Birmingham City Council
(unreported decision of Collins J on 4 November 1998).
4. Proper
approach
An ‘updating
construction’ should be adopted recognising that the position now is not the
same as it was in Victorian times when the Public Health Acts, dating from
1848, were enacted. There is no fixed standard of what is likely to cause
‘injury to health’. It is important to consider what is an acceptable level of
harm and an acceptable degree of risk at the time when the statute is to be
applied. Those levels of harm and degrees of risk are likely to change over
time. Legislation such as the 1990 Act is always speaking, addressing different
situations at different times. A current approach to protection from harm to
health is called for.
Conclusion
The logic of Mr
Pleming’s arguments in support of the appeal would be more difficult to resist
if the function of the court was to construct a
arguments, though skilfully developed, have less cogency within the less
ambitious confines of judicial interpretation of statutory provisions, which,
when restated by parliament in the 1990 Act, repeated identical expressions
that had been used and defined in earlier Public Health legislation, and which
had also been the subject of a judicial interpretation settled for over a
century.
Richards J was right
in holding that the kind of problem raised by the steep internal staircase,
with its attendant dangers of accident or physical injury, does not fall within
the category of injury addressed by Part III of the 1990 Act, when properly
interpreted in the context of the earlier statutory provisions. As Richards J
stated, the problem of accidental physical injury existed as much in the
mid-19th century as it does today. But it is not the problem at which these
statutory provisions and its predecessors were directed. He said at p613h:
It fell outside the
intended scope of those provisions, and it falls just as much outside the intended
scope of the present-day successors to those provisions. The ‘always speaking’
principle cannot be deployed so as to depart in that way from the legislative
purpose.
Legislative
history of Part III
Mr Timothy Straker
QC, on behalf of the council, took the court on an historical excursion of the
Public Health legislation relating to statutory nuisances prior to the
restatement of the law in the 1990 Act. It was not only a reminder of the
achievements of the Victorian urban reformers; it also set the legislative
scene for the interpretation of Part III of the 1990 Act. Section 79 of the
1990 Act cannot sensibly be unstitched from the context of the statutory
nuisance provisions restated in it.
The legislation dates
from the mid-1840s. Only the high spots of the statutory tour need be noted
here.
1. In 1855 an Act was
passed to consolidate and amend the Nuisances Removal and Disease Prevention
Acts 1848 and 1849. Bodies were designated to be the local authority for the
purposes of dealing with, inter alia, the ‘Description of
Nuisances’ referred to in the Act. Section 8 provided that:
The Word ‘Nuisances’
under this Act shall include —
Any Premises in such
a State as to be a Nuisance or injurious to Health:
The same word also
included:
Any Pool, Ditch, Gutter,
Watercourse, Privy, Urinal, Cesspool, Drain, or Ashpit so foul as to be a
Nuisance or injurious to Health:
Any Animal so kept
as to be a Nuisance or injurious to Health:
Any Accumulation or
Deposit which is a Nuisance or injurious to Health:
The Act also
contained power for the local authority to appoint sanitary inspectors for the
purposes of the Act. Under Part II powers were given relating to the ‘Removal
of Nuisances’.
2. The Public Health
Act 1875 consolidated and amended legislation relating to public health in
England. Part III was headed ‘Sanitary Provisions’ and included, in section 91,
provisions relating to nuisances, which were defined as deemed to include:
1. Any premises in
such a state as to be a nuisance or injurious to health:
There was also
included in the definition similar provisions to those already quoted from the
1855 Act and further provisions relating to the overcrowding of houses, the
state of factories, workshops and workplaces and injury from fireplaces,
furnaces and chimneys.
3. The law relating
to public health was consolidated with amendments in the Public Health Act
1936. Part III deals with ‘Nuisances and Offensive Trades’. Statutory nuisances
are defined in section 92(1) as including:
(a) any premises in
such a state as to be prejudicial to health or a nuisance
Similar provisions to
those contained in the 1875 Act are also designated as statutory nuisances.
Section 343(1)
contains the definition of the expression ‘prejudicial to health’, which is the
same as in section 91(7) of the 1990 Act.
4. It is also
important to note that the 1936 Act contains other provisions with respect to
buildings, works and fittings, separate from those concerning statutory
nuisances. This was also the case with the Public Health Act 1961. Those
provisions, including the power to make building regulations, are now contained
in the Building Act 1984. In particular, section 77 is concerned with dangerous
buildings and provides:
(1) If it appears to
a local authority that a building or structure, or part of a building or
structure, is in such a condition, or is used to carry such loads, as to be
dangerous, the authority may apply to a magistrates’ court, and the court may —
(a) where
danger arises from the condition of the building or structure, make an order
requiring the owner thereof —
(i) to execute such work as may
be necessary to obviate the danger…
There are similar
provisions in section 79 relating to ruinous and dilapidated buildings and
neglected sites. It is to be noted that these provisions, unlike the provisions
relating to statutory nuisances, are in discretionary, not mandatory, form.
The important point
to note from the legislative history is that the expression, which now falls to
be construed in section 79 of the 1990 Act, has been repeatedly used by
parliament in the context of what have been characterised as ‘sanitary
statutes’. There are distinct statutory provisions relating to dangerous and
dilapidated buildings, such as are now to be found in the Building Act 1984,
the Housing Act 1985 (sections 189, 190 and 352), the Landlord and Tenant Act
1985 (section 11) and the Defective Premises Act 1972.
As Richards J noted,
this special feature of the legislative regulation of statutory nuisances was
judicially recognised both in the early case of Great Western Railway Co
v Bishop (1872) 7 LR QB 550 and, a century later, in the decision of the
Divisional Court in Coventry City Council v Cartwright [1975] 1
WLR 845. The reasoning in both cases supports the council’s submission that the
provisions relating to statutory nuisances are concerned with a threat to
health in the sense of disease rather than with the prevention of accidental
physical injury from the dangerous state or condition of premises.
Great Western Railway Co v Bishop
(supra) was a decision on ‘nuisances’ in section 8 of the Nuisances
Removal Act 1855. The definition of ‘nuisances’ has been noted above. The
owners of a railway bridge over a highway were summoned under the 1855 Act for
allowing a nuisance to exist on their premises. The alleged nuisance was that
rainwater, which had collected on the bridge, ran through the planks and
dripped on to the highway and on to users of the highway. The magistrates
ordered the abatement of the nuisance. The Court of Queen’s Bench held that the
magistrates were wrong in making that order. Sir Alexander Cockburn CJ said at
p552:
I think this
conviction cannot be upheld, and I regret it, for I think that it would be very
convenient and very useful that there should be summary jurisdiction in such a
case; but that it would be convenient that there should be a summary
jurisdiction is not sufficient. We must not act upon any such motive of public
convenience where we are construing an Act of Parliament, unless we see the
construction that would carry out such a public object is warranted by the
language of the statute. The Act speaks of nuisances or things injurious to
health, and I think that the distinction taken by Mr Lopes is a true one, that
it was intended for the benefit of public health or health generally, to secure
the means of abating things that were either matters of public or private
nuisance, of public nuisance as coming within the word ‘nuisance,’ and private
nuisance as coming within the words ‘injurious to health;’ but whether you
regard public or private nuisance, still it was intended that the powers of
this Act should apply only when the thing complained of was injurious to
health. It was admitted that this Act cannot be considered as comprehending
within its provisions all things which would amount to nuisances in point of
law. Obstructions to a highway and a variety of other offences of that kind
against public convenience, which are in point of law nuisances, never can have
been intended to be within the scope of this legislation. It becomes therefore
necessary to draw a line somewhere. We can only discover that line by reference
to the evident scope and purpose of the enactment. It is plain that the object
was to protect the public health and private health of individuals living in
towns, or in the neighbourhood of towns.
The Lord Chief
Justice said that, although the acts alleged against the railway company,
amounted to ‘a very serious annoyance and inconvenience to persons who have to
pass under the bridge’, which might amount to a nuisance at common law, it was
not a nuisance within the statute:
because it is not a
nuisance that can be said to affect public health, except in a very indirect
remote manner, not such as could be contemplated by the Act of Parliament. The
statute is intended evidently to prevent all those nuisances which arise from
slaughter–houses and accumulations of refuse matter, and a variety of other
injurious or obnoxious trades which are a nuisance to the public, and cannot be
taken to apply to such a case as the present.
In his submissions to
the court, which were accepted, Mr Lopes QC described the 1855 Act as:
a sanitary Act… It
is clear that the word ‘premises,’ as defined, means premises in such an
unhealthy and foul state as to be a nuisance or injurious to health.
The same approach was
taken by Lord Widgery CJ and other members of the Divisional Court in Coventry
City Council v Cartwright (supra), a case on sections 92(1)(c)
and 343 of the Public Health Act 1936. A local resident made a complaint that a
vacant site owned by the local authority in a residential area was the subject
of fly-tipping of household refuse and building materials. The council from time
to time removed the household refuse, but not the building materials. The
justices were of the opinion that the building materials were ‘prejudicial to
health’ in the sense that people who entered the site might injure themselves
on the building rubble and also that the visual impact to householders
overlooking the site constituted a nuisance. On that basis they made an
abatement order that was successfully appealed by the local authority. Lord
Widgery CJ said at p849A:
the real question
was… [whether] the accumulation was prejudicial to health…
He rejected the
assertion that the possibility of physical injury from cuts and the like was
sufficient to justify the assertion that the deposit or accumulation was
‘prejudicial to health’. He said at p849B-C:
The words are
obviously very wide, and one should hesitate, in construing the section in
proceedings such as the present, to lay down boundaries which may in another
case prove to be unsuitable. But I think that the underlying conception of the
section is that which it struck at is an accumulation of something which
produces a threat to health in the sense of a threat of disease, vermin or the
like.
He was encouraged in
that view by the reasoning of the court in Great Western Railway Co v Bishop
(supra): see also Ashworth J at p851C-E.
Although the court
certified a point of law of general public importance for decision by the House
of Lords, leave to appeal was refused. Later cases have not cast any doubt on
the reasoning in the cases of Cartwright and Bishop. Indeed, the
Divisional Court recently followed the reasoning in those cases and in the
judgment of Richards J in this case: Birmingham City Council v Oakley
unreported 18 December 1998.
The other cases cited
by Mr Pleming QC do not establish that ‘injury
accidental physical injury. For example, he pointed out that the case of Bishop
was distinguished in Bishop Auckland Local Board v Bishop Auckland
Iron and Steel Co (1882) 10 QBD 138. Stephen
accumulation or deposit of cinders and ashes was a nuisance if it emitted
offensive smells that interfered with the personal comfort of persons living in
the neighbourhood, but did not cause injury to health. Stephen J did not,
however, hold that ‘injury to health’ included accidental physical injury.
When restating the
law of statutory nuisances in the 1990 Act, parliament used the same expression
‘injury to health’ that it had used in the earlier legislation. That expression
had been interpreted and applied by the courts for over a century in the sense
demonstrated in the two authorities cited above. In those circumstances, it is
probable that parliament intended: (a) to produce the same result in similar
cases under Part III of the 1990 Act as had been produced under the equivalent
provisions of the earlier Public Health Acts; and (b) to leave the risk of
injury by accident to be dealt with by local authorities under other available
statutory powers in measures such as the Building Act 1984 and the building
regulations.
Conclusion
I have read in draft
the judgment of Buxton LJ and agree with it.
I would dismiss this
appeal. The issues relating to the power of the council to withdraw a valid
abatement notice, which has been served and not successfully appealed, and the
lawfulness of the exercise of that power by the council do not need to be
decided on this appeal. However, the court heard full argument on both points.
I intend no disrespect to the careful submissions advanced on behalf of the
appellant when I simply say that, if Richards J was wrong on the main point
(which he was not), there is no error in his conclusions on the other two
issues: the council clearly had an implied power to withdraw the notice and it
exercised that power lawfully.
BUXTON LJ: By a combination of sections 79(1) and 79(7) of the Environmental
Protection Act 1990, the issue in this case is whether, because of the manner
of construction or arrangement of its staircase, 14 Bannerman Road is ‘in such
a state as to be injurious, or likely to cause injury, to health’. Although the
judge did not regard the construction as the most obvious available, he was
persuaded that this statutory formula could as a matter of language alone
extend to a case where the state of the premises was likely to cause physical
injury: [1998] 3 All ER 603 at p613c. I do not agree. It is very unnatural to
describe a physical accident as causing injury to health. First, such incidents
as a broken ankle or sprained wrist are, in ordinary usage, not described as interfering
with the victim’s health, as opposed to afflicting or injuring his body.
Second, once the concept of injury is introduced into the definition, the
specific limitation to injury to health underlines the fact that ‘injury’ here
is not used in its normal sense of bodily injury.
There are at least
two pointers in the bare wording of the present legislation that support that
view. First, section 79(1)(f) of the 1990 Act, which has been linked to the
present section 79(1)(a) since at least section 91 of the Public Health Act
1875, and which concerns ‘any animal kept in such a place or manner as to be
prejudicial to health or a nuisance’, is difficult to reconcile with the
argument that ‘prejudicial to health’ as used generally in section 79(1) can extend
to physical injury. If the purpose of section 79(1)(a) indeed extended to
physical injury caused by an animal, it would be surprising that it limited
that protection to injuries resulting from the ‘place or manner’ in which the
animals were kept. And it is especially odd to single out for prohibition cases
where the ‘place’ of the keeping threatens physical injury: since if an animal
is dangerous it is dangerous wheresoever it may be. A further pointer in this
direction is to be found in section 81 of the Public Health Act 1936, which
gives local authorities powers to make ‘byelaws for the prevention of certain
nuisances’, including, by section 81(b), byelaws preventing the keeping
of animals so as to be ‘prejudicial to health’. It strains belief to think that
this latter expression, defined generally for the purposes of both the 1936 Act
and the 1990 Act, can in this context extend to danger of physical injury.
Second, the contrast
between prejudice to health and physical danger is underlined in the emergency
provisions under the Building Act 1984, where separate regimes are supplied in
respect of section 79 statutory nuisances on the one hand (section 76 of the
1984 Act) and, on the other hand, ‘dangerous’ buildings (section 77 of the 1984
Act). The latter expression, seen as referring to a different case from the
section 79 statutory nuisance, is the obvious and natural way of referring to
danger of physical injury: which ‘injury to health’ is not.
However, whatever may
be thought of the verbal infelicities forced on the 1990 Act by the appellant’s
case, as the judge said, everything falls into place once one looks at the
history of the legislation, as expounded by my lord in his judgment. It is
quite clear, as the judge indeed concluded, that the provisions of section
79(1) come without significant amendment from 19th century statutory provisions
directed at premises that create a risk of disease or illness. The provisions
with which we are concerned are first found in general public health
legislation of a recognisably modern type, in almost identical terms to the
1990 Act formulation, in section 91 of the Public Health Act 1875. Reading
through that Act, and referring to its predecessors, it cries out from the page
that the target of the legislators was disease and not physical injury. And
that was clearly understood or assumed at the time the legislation was passed.
One of the predecessor statutes, consolidated in the 1875 Act, was the
Nuisances Removal Act 1855, section 8 of which addressed ‘Premises in such a
state as to be a nuisance or injurious to health’. In Great Western Railway
Co v Bishop (1872) 7 LR QB 550, where the issue was whether water
running from a railway bridge on to highway users below constituted such a
nuisance, Mr
and concluded that the Act was a sanitary Act, and so a ‘nuisance’ under it
must affect health. Cockburn CJ, at p552, agreed with him. True it is that
the actual issue in the case was whether the inconvenience, as opposed to
physical injury, suffered by the passers-by could be a nuisance; but that point
was seen as concluded by the status of the legislation as, in 19th century
terms, a sanitary provision. That perception was expressed in the 1875 Act by
the nuisance provisions in section 91 being included in Part III, ‘Sanitary
Matters’; and by the implementation of that Act being in the hands of the
sanitary authorities that had been created by the Public Health Act 1872.
Changing the language, but not the concept, into 20th century form, the
successor provisions of 1990 are about disease or ill‑health, and not
about physical danger.
It reinforces that
conclusion, already drawn from analysis of the legislation itself, that, to
mention only one part of the wide range of secondary material interestingly put
before us, the report of the Consolidation Committee presented to parliament in
support of the Bill that became the largely consolidating Public Health Act
1936, the relevant parts of which were restated in the 1990 Act, explained that
that Bill was confined to ‘provisions of a strictly public health character
relating to the prevention and treatment of disease’: Cmd 5059 of 1936, p9.
I would mention two
other points. First, it was contended that to exclude physical danger from
these provisions would leave the citizen unprotected. I am far from sure that
that is so. But, to the extent that that is the case, it is, I fear, a matter
for parliament and not for this court. The limitation of the reach of this
statute to disease and ill‑health is too long‑standing and
deep-rooted to be susceptible now to any different interpretation; particularly
since, as the judge pointed out, [1998] 3 All ER 603 at p613g, the concept of
physical injury was well known in the 19th century, but was not addressed by
these particular provisions. Second, there may be cases where the boundary
between injury to health and ‘mere’ physical injury is difficult to define with
total precision, though no actual cases were put before us in argument. That
problem, if it is a problem, cannot affect the general proposition that
physical injury, a concept the boundaries of which are usually easy to
perceive, does not, standing on its own, engage section 79 of the 1990 Act.
For those reasons,
which merely add some minor elements to the grounds set out in my lord’s
judgment, I also would dismiss this appeal.
HIRST LJ: I agree with both judgments and have nothing to add.
Appeal dismissed.
