An occupier of ‘patched-up’ housing in a clearance area may apply under section 99 of the Public Health Act 1936 for a nuisance order, which must be made on proof of the appropriate facts–Magistrates may however take existence of ‘patched-up’ provisions into account as one of the factors affecting their decision on the terms of the order
This was an
appeal by Salford City Council from a decision of the Salford stipendiary
magistrate on April 16 1974, granting an application by the respondent, Mrs
Brenda McNally, under section 99 of the Public Health Act 1936, for a nuisance
order in respect of premises occupied by her at 20 Johnson Street, Lower
Broughton, Salford.
Mr R A W Sears
(instructed by Sharpe, Pritchard & Co, agents for G F Bannister, of
Salford) appeared for the appellants, and Mr B A Hytner QC and Mr F D Hart
(instructed by Davis, Hope & Furniss, of Glossop) represented the
respondent.
Giving
judgment, LORD WIDGERY said that this was the latest of a number of cases which
had been before the courts in which the provisions of the Public Health Act
1936 had come into conflict with those of the Housing Acts. The facts were that
the property was an unfit house which stood on a clearance site, but the local
authority had decided to defer its demolition for at least seven years and to
use it, with other such houses, as temporary accommodation for those displaced
by demolition. They did this in exercise of their powers under section 48 of
the Housing Act 1957 to ‘patch-up’ unfit premises. Under section 99 of the
Public Health Act the respondent occupier sought, and the magistrate granted, a
nuisance order in respect of the house. The magistrate inspected the premises
and found a number of defects existing; there was rising damp, perished
plaster, the rear door was rotted and unhinged, there was severe dampness in
the first floor and the water closet pipe was cracked and insanitary. By reason
of these defects he found that the premises were in a condition prejudicial to
health and therefore constituted a statutory nuisance under section 92 of the
1936 Act.
The magistrate
did not have before him the full report of Nottingham City District Council
v Newton [1974] 1 WLR 923, but he was supplied with a copy of a report
in The Times, which was a comparatively full report, and he concluded
that he was bound to make a nuisance order. The situation which arose in the Nottingham
case was in many respects similar to the present. The decision of the court was
that where the essentials of a statutory nuisance had been proved before
justices so that they were satisfied that a statutory nuisance existed, they
were bound to make a nuisance order. It had, however, been pointed out by the
present court that the justices had considerable tolerance in deciding
precisely how many of the complaints, and which complaints, required to be
remedied and also the time within which that remedy should be supplied. Given
that the Nottingham case was right (and no one had attacked it in this
case) the magistrate’s conclusion was entirely right.
Did the
resolution under section 48 make any difference? There seemed to him (his Lordship) to be a
lot of common sense in the appellants’ submissions that it should make a
difference. Section 48 was a recognition by Parliament that there would be
occasions when people would have to live, perhaps for some time, in houses
which were not up to the standards of fitness for human habitation required by
the Public Health Act. Nevertheless he had found it impossible to say that the
effect of section 48 was to remove the normal Public Health Act standard of
fitness in cases where a nuisance within the Act arose. If that had been
Parliament’s intention it would have been the simplest thing in the world to
say so. He was therefore driven to the conclusion that an individual occupier
of an unfit house could initiate proceedings under section 99 of the Public
Health Act and that the magistrate was bound in law to make a nuisance order
once the nuisance alleged had been proved, notwithstanding the fact that the
house was one to which a resolution under section 48 of the Housing Act 1957
applied. No doubt the existence of the section 48 resolution was one of the
factors which would affect the magistrates’ court when dealing with this
difficult type of question, but that it was more than a factor and having such
weight as the magistrate thought right and no more, he (his Lordship) found it
impossible to say. The magistrate took into account all the circumstances
before him in reaching his conclusion and the present appeal must be dismissed.
MELFORD
STEVENSON and WATKINS JJ agreed, and the appeal was dismissed with costs. The
court certified that the case raised a point of law of general public
importance, but refused leave to appeal to the House of Lords. Mr Sears told
the court that repairs had now been carried out to rectify part of the
nuisance–an insanitary water closet and a rotten back door–although treatment
for damp had yet to be done. The council was willing to undertake any
reasonable work on future defects. The case was said to be a test case, and a
further 88 summonses to be awaiting hearing.
On February 13
1975 the Appeal Committee of the House of Lords (Lord Simon of Glaisdale, Lord
Edmund-Davie and Lord Fraser of Tullybelton) gave Salford City Council leave to
appeal to the House of Lords.
