Complaints of nuisance made by individuals under the provisions of section 99, Public Health Act 1936, invoke section 94 of the Act in all its powers, just as if a council had operated the abatement-notice procedure under the latter section–Accordingly the procedure via section 99 may involve penal consequences, and the process must be by way of information–Fears of local authorities discounted by the court
In these two
motions, which were heard together, counsel moved for orders of mandamus
directed to justices to hear and determine complaints under section 99 of the
Public Health Act 1936. In the first motion, David Leslie Hunt, of Queensland
House, Rymill Street, London E16, sought an order directed to Newham justices
requiring them to hear and determine his application for a nuisance order
against the first respondents, his landlords, the Greater London Council. In
the second of the motions, Bertram Frederick Franklin, of Jenners, The Old
Vicarage, Lingfield, Surrey, sought a similar order directed to Oxted justices
requiring them to hear and determine a similar application against the second
respondents, his landlords, the Tandridge District Council.
S J Sedley
(instructed respectively by H Fassnidge, of Newham Rights Centre, and Turner
Garrett & Co, of Weybridge) appeared for both applicants; J Rylance
(instructed by the council solicitor) for the first respondents; and A A R
Thompson (instructed by the council solicitor) for the second respondents.
Giving the
first judgment, KILNER BROWN J said that by common consent the two matters had
been taken together, since each involved the interpretation and effect of
section 99. The section had recently been considered in two cases which had
become known as the Nottingham case and the Salford case: Nottingham
Corpn v Newton [1974] 2 All ER 760 was a decision of the Queen’s
Bench Divisional Court, and Salford City Council v McNally [1975]
2 All ER 860 was a decision of the court which was confirmed by the House of
Lords. By way of preamble, it was appropriate to observe that sections 42, 43
and 44 of the Magistrates Courts Act 1952 made it plain that questions of civil
jurisdiction should be commenced by complaint and questions of criminal
jurisdiction by information and summons. If section 94 of the Public Health Act
1936 was to be invoked, that had to be done by way of information and summons,
in that subsection (2) provided for the imposition of fines in the event of
non-compliance with nuisance orders, and the section therefore had to be
considered penal in its nature. He (his Lordship) turned now to the words of
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.
The short
point in the first motion, and (as would appear) in the second motion also, was
whether this provision gave the individual the right to invoke section 94 in
all its powers without prior service of the familiar notice of abatement, and
if so, whether process under section 99 should be initiated by way of complaint
or of information.
In the first
motion, counsel for the applicant submitted that section 99 gave the individual
the right to apply for the orders available to a local authority under section
94, and that as the latter section was penal the process should be by way of
information. The justices decided that the applicant should have applied by way
of complaint. Counsel for the Greater London Council submitted that the
justices were right and that the legislature could not have contemplated giving
the individual the privilege of short-circuiting a prior warning in a case
which might lead to a fine; therefore, he said, there should be a severance of
section 94 to omit the penal provisions when section 99 was employed, and once
the penal provisions went, the process became civil in character, so that
proceedings should be by way of complaint. He (his Lordship) thought that this
argument broke down in limine, and that the individual could invoke
section 94, with all its powers and consequences, by information under section
99. He was told that local authorities feared all sorts of untoward results if
this were held to be the law, but he thought their fears more imagined than
real. There was a heavier burden of proof under the procedure by information
and summons, and justices were always to bear in mind the remarks of Lord
Wilberforce in the Salford case, and Lord Widgery in the Nottingham case,
as to the use of common sense in these matters. In the first motion, the
justices were wrong, and an order should go.
In the second
case, the justices had taken the view that an abatement notice which the
applicant had purported to serve on the second respondents had not in fact been
properly served, as was indeed common ground, and therefore that there was no
case to answer, which was disputed on the ground that no abatement notice was
needed in any event. He (his Lordship) thought that the whole case, as
developed before the magistrates, turned on an irrelevancy. In his opinion
there was no need for a notice, and it would be wrong to take against the
applicant the technical point that his case was based on non-compliance with
his notice when the real substance of his complaint was that there was a
nuisance in existence in fact. The justices were wrong and should hear the case
on the merits as if it had been brought by information. An order should
accordingly issue. In all such cases in future, process should be by way of
information.
LORD WIDGERY
and WATKINS J agreed, and orders were made accordingly. In each case the
applicant was awarded his costs. The court refused an application by the first
respondents for a certificate that the case raised a point of law of general
public importance.
