House in clearance area owned by council and let to occupant as adequate accommodation for the time being under the power in section 48, Housing Act 1957–Council not exempt from proceedings for a statutory nuisance under sections 92 (1) (a) and 93 or 96 of the Public Health Act 1936
This was an
appeal by Salford City Council from a decision of the Queen’s Bench Divisional
Court on December 19 1974 (233 EG 1013, [1975] 1 EGLR 102) confirming a
nuisance order granted by the Salford stipendiary magistrate under the Public
Health Act 1936 on the application of the respondent, Mrs Brenda McNally,
occupier of a house owned by the council at 20 Johnson Street, Salford.
Mr R Sears QC
and Mr A R Porten (instructed by Sharpe, Pritchard & Co) 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.
In his speech,
LORD WILBERFORCE said that Mrs McNally was the occupier of an out-of-date house
of which the council became owners through a compulsory purchase order. The
property was acquired, together with 406 other houses, as part of a planned
clearance area, the intention being to demolish all the houses and rebuild. The
council could exercise this power if satisfied that the houses in the area were
unfit for human habitation and that the most satisfactory method of dealing
with such conditions was to demolish all buildings in the area (Housing Act
1957, section 42 (1) (a)). However, as the housing legislation allowed the
council to do, and as was obviously necessary in view of the large number of
dwellings involved, they decided to defer demolition for seven years. They
could only exercise this power if they were of the opinion that the houses were
or could be rendered capable of providing accommodation of a standard ‘which is
adequate for the time being’ (Housing Act 1957, section 48 (1)). Thus Mrs
McNally was living in a house which was unfit for human habitation but which
the council considered was, or could be rendered, adequate accommodation for
the time being.
The present
proceedings arose not under the Housing Acts but under the Public Health Act
1936. Mrs McNally, as a person aggrieved, made a complaint against the council,
as owners of the house, of a statutory nuisance in that the house was ‘in such
a state as to be prejudicial to health or a nuisance’ (section 92 (1) (a) of
the Act of 1936). She filled up a form, apparently supplied by some
organisation, on which she ticked off various suggested defects, and the
stipendiary magistrate, after an inspection, found that there was rising damp
and perished plaster, that the rear door was rotted and unhinged, that there
was severe dampness in the first floor, and that the water-closet pipe was
cracked and insanitary. His finding continued that: ‘By reason of these
defects, the premises were in such a state as to be prejudicial to health or a
nuisance,’ and therefore a statutory nuisance. He proceeded to make an order
requiring the council to abate the statutory nuisance within two months. On
appeal by case stated, the Divisional Court upheld the magistrate’s decision,
but stated the following question for consideration by their Lordships’ House:
Whether it is
a lawful defence for a housing authority in proceedings brought against it by
virtue of either section 93 or section 99 of the Public Health Act 1936 to
prove that the house, the subject of the complaint, is one occupied by reason
of section 48
The answer to
this question, in his (Lord Wilberforce’s) opinion, was manifestly in the
negative. It was only necessary to perceive the respective and different
purposes of the Housing Acts and of the Public Health Act to see that they were
dealing with different matters and setting different standards which might in
any individual case have to be separately met. The Housing Act 1957, in that
part of it which provided for clearance and redevelopment, was concerned with
fitness for human habitation. This was a technical expression, to which the Act
supplied its interpretation in section 4 (1) (c) through a list of specific
matters. The subsection stated:
In
determining for any of the purposes of this Act whether a house is unfit for
human habitation, regard shall be had to its condition in respect of the
following matters, that is to say (a) repairs; (b) stability; (c) freedom from
damp; (d) natural lighting; (e) ventilation; (f) water supply; (g) drainage and
sanitary conveniences; (h) facilities for storage, preparation and cooking of
food and for the disposal of waste water; and the house shall be deemed to be
unfit for human habitation if and only if it is so far defective in one or more
of the said matters that it is not reasonably suitable for occupation in that
condition.
The Public
Health Act 1936, on the other hand, was concerned with the general concepts
‘prejudicial to health’ and ‘nuisance,’ the former being defined as ‘injurious,
or likely to cause injury, to health.’
He (his Lordship) did not doubt that the persons whose health was here
in question might include occupiers of the house as well as members of the
public. But it was obvious that a house might well be ‘unfit for human
habitation’ in the statutory sense without being either ‘prejudicial to health’
or a ‘nuisance,’ and consequentially that the Housing Act 1957, when it
authorised a house which was unfit for human habitation to be temporarily
occupied as ‘adequate for the time being,’ was not lending statutory authority
to the use of a house which was prejudicial to health. In view, indeed, of the
fact that houses might have to be used for accommodation, adequate for the time
being, for considerable periods (in the present case seven years), it would be
surprising if a local authority, in permitting such a use, were held to be
dispensed altogether for this period from the public health requirements.
There was
therefore no difficulty in reconciling the two legislative codes or in
operating them side by side. Much of the apparent difficulty of so doing had
been created by a confusion of terms. Thus the judgment of the Divisional Court
referred to the purpose of the Public Health Act 1936 as being ‘to prevent
people from living in houses which are not fit for human habitation.’ This might be confusing, since, while a house
which was by its condition ‘prejudicial to health’ was likely to be ‘unfit for
human habitation,’ the converse was not necessarily the case. In dealing with
each Act, it was better to use its own terminology. A similar confusion
occurred in some of the cases through the use of the words ‘personal
comfort.’ Those words were appropriate
enough in the context of what was a ‘nuisance’ for the purposes of the Public
Health Act (see the judgment of Stephen J in Bishop Auckland Local Board
v Bishop Auckland Iron & Steel Co Ltd (1882) 10 QBD 138), but they
were quite inappropriate in relation to the other limb, ‘prejudicial to
health.’ 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. He (his Lordship) was of opinion that Betts
v Penge Urban District Council [1942] 2 KB 154 was guilty of this
confusion and was wrongly decided. It was simply a case of what was now called
‘harassment,’ and was not under the Act at all. He expressed no opinion on the
case of Coventry City Council v Cartwright [1975] 2 All ER 99,
which was reported after argument in the present case had been closed.
Magistrates
dealing with complaints under the Public Health Act 1936 should, in the first
place, keep close to the wording of the Act and ask themselves, after they had
found the condition of the premises, the questions (1) whether the state of the
premises was such as to be injurious or likely to cause injury to health, or
(2) whether it was a nuisance. To consider those questions in terms of fitness
or unfitness for human habitation was undesirable and likely to confuse. And
the magistrate should find specifically under what limb the case fell. If he
answered either question in the affirmative, he must make an abatement order,
and he should make this as specific as possible rather than order the owner in
general terms to abate the statutory nuisance. That might lead to difficulties
in cases like the present. In making the order the magistrate should take into
account the circumstances in which the property was being occupied, including,
of course, the likely duration of the occupation. The shorter the period before
probable demolition, the more severe must be the injury or likely injury to
health, or, as the case might be, the nuisance, to justify action by way of
abatement. This aspect of the matter was well explained by the Divisional Court
in Nottingham City District Council v Newton [1974] 1 WLR 923,
the keynote of which was the need, in making abatement notices, to use
discretion and commonsense. The appeal should be dismissed.
LORD SIMON OF
GLAISDALE agreed with the speeches of Lord Wilberforce and Lord Edmund-Davies.
LORD CROSS OF
CHELSEA agreed with the speech of Lord Edmund-Davies.
LORD
EDMUND-DAVIES said that section 91 of the Public Health Act imposed on every
local authority the duty to cause their district to be inspected from time to
time for the detection of ‘statutory nuisances.’ If the person served with an abatement notice
made default in complying with it, the authority was required by section 94 to
cause a complaint to be made to a justice of the peace. As a local authority
might fall down in its duty to deal with statutory nuisances in its area, ‘any
person aggrieved by the nuisance’ was enabled by section 99 to make a complaint
to a justice of the peace. The crux of this appeal was whether the law was any
different if the defaulting landlord happened to be, instead of a private
person, none other than the local authority itself. The sole question to be
determined was whether the magistrate was right in law in concluding that he
was ‘bound’ to make the nuisance order appealed from. It was to be observed
that the council relied solely on section 48 of the Housing Act 1957. Starting
from the hypothesis that all houses within a clearance area were unfit for
human habitation, they submitted (a) that section 48 (1) contemplated that
their demolition might be postponed if they could be rendered capable of
providing accommodation of a standard ‘adequate for the time being,’
notwithstanding that they remained unfit; and (b) that the effect of section 48
(4) was that the undertaking otherwise implied by section 6 (2) of the Act that
certain houses would be kept fit for human habitation was excluded in such
cases as the present.
He (Lord
Edmund-Davies) noticed certain odd features about the case. One of the oddest
was that on the same day that the compulsory purchase order was made (March 1 1967)
the council also made an order under section 48 which enabled them to defer
demolition ‘for a minimum of seven years,’ which seemed a surprising course in
relation to the concept of rendering capable of habitation ‘for the time being’
houses which were ex hypothesi unfit. Be that as it may, 20 Johnson Street
being at the material time undoubtedly a ‘statutory nuisance,’ ie injurious to
the health of the occupier, their Lordships’ House was not called upon to
determine the correctness of the decision in Betts v Penge Urban
District Council [1942] 2 KB 154 that, in order to sustain a conviction of
permitting a statutory nuisance, it was sufficient to prove that premises were
in such a state as to
their health. He (his Lordship) nevertheless wished to make clear that he
thought that that case was wrongly decided. But whether no 20 was also ‘unfit
for human habitation’ had never been determined, though it ought not to have
been included in the clearance order if it was not. Section 4 (1) of the
Housing Act 1957 provided that in considering such a question ‘regard shall be
had to its condition in respect of’ eight features listed in the subsection,
and continued that ‘the house shall be deemed to be unfit for human habitation
if and only if it is so far defective in one or more of the said matters that
it is not reasonably suitable for occupation in that condition.’
It was true
that in Summers v Salford Corporation [1943] AC 283, which
related to the undertaking as to fitness for human habitation implied by
section 2 (1) of the Housing Act 1936, which in essence corresponded with
section 6 (2) of the 1957 Act, Lord Atkin adopted the view he had earlier
expressed in Morgan v Liverpool Corporation [1927] 2 KB 131 at
145: ‘If the state of repair of a house is such that by ordinary user damage
may naturally be caused to the occupier, either in respect of personal injury
to life or limb or injury to health, then the house is not in all respects
reasonably fit for human habitation.’
But Lord Russell of Killowen appeared (pp 290-1) to have held the view
that such a conclusion could be arrived at without the house ‘being in such a
condition, structurally or otherwise, as to call for demolition under the
relevant provisions of the Housing Acts.’
He (Lord Edmund-Davies) thought that their Lordships’ House was
concerned solely with the operation of the Public Health Act 1936 and with the
unchallenged fact that 20 Johnson Street was at the material time prejudicial
to the health of its occupier. How it would rank under the Housing Act was
neither here nor there, and it was profitless to embark upon such an inquiry.
In these circumstances, he thought it was nihil ad rem that 20 Johnson
Street was within a clearance area in respect of which a still-operative
deferment order under section 48 had been made. To hold otherwise would place
the local authority in a better position in respect of the duties of landlords
under the Public Health Act 1936 than a private landlord would be. Had that
been the intention of the legislature when passing section 2 of the Housing Act
1954 and section 48 (1) of the 1957 Act, it would have been easy to make this
clear and most important that it should be done. In the Divisional Court, Lord
Widgery had expressed the view that by section 188 of the 1957 Act ‘Parliament
said just the opposite.’ Having quoted
that section, he continued ([1975] 1 WLR 372F): ‘If one gives those words their
ordinary meaning, they can only mean one thing and that is that nothing in the
Housing Act is to affect the standards of suitability for occupation already
prescribed by the Public Health Act 1936.’
With respect, he (Lord Edmund-Davies) was not convinced that section 188
necessarily had that meaning or only that meaning, though it certainly provided
an obvious and convenient niche in the statute for making clear that section 48
(1) lightened the burden of local authorities who had acquired houses in a
clearance area, had such been the intention of the legislature. Of the twin
statutes of 1936, section 187 of the Housing Act and section 328 of the Public
Health Act were in similar terms to section 188, and to his way of thinking
they all presented certain difficulties in construction which need not now be
gone into.
Basic to the
appellants’ case was their submission that the invoking of section 48 (1)
produced inevitable conflict with the duties imposed upon landlords by the
Public Health Act 1936. He (his Lordship) disagreed. Such a submission might
conceivably be sound if, for example, the state of the premises being dealt
with was described in identical and similarly defined words in the two
statutes, but identical words were not used and the duties imposed were
different. He (Lord Edmund-Davies) therefore lacked assurance that Lord Widgery
was necessarily right in observing (p 370B-C) that the patching-up of unfit
houses so that they were adequate for the time being was inevitably a lower
standard than that which was contemplated by the Public Health Act 1936. That
might or might not be so, but such comparisons complicated rather than
clarified and were best avoided. He would, however, unreservedly adopt the
observations of Lord Widgery when, dealing with the earlier and similar case of
Nottingham City District Council v Newton [1974] 1 WLR 923, he
said (at 371A and 372H):
‘This court
made it perfectly clear that justices faced with this situation, although bound
to make an order under the Act, can use their commonsense and are entitled to
take into account all the circumstances, and thus avoid the expenditure of
public money unnecessarily in a case where the house is likely to be pulled
down shortly in any event. . . . No doubt the existence of the section 48
resolution is one of the factors which will affect the magistrates’ court when
dealing with this difficult type of question, but that it is more than a factor
and having such weight as the magistrate thinks right and no more, I find it
impossible to say.’
Mr Hytner
might be right when he submitted that the appellants had only themselves to
blame for their present predicament. He said that they bit off more than they
could chew in making a compulsory purchase order covering so large a number of
unfit houses, for the housing legislation envisaged the houses being bought and
then demolished within a very short period, the council having first ensured
that they could rehouse the occupiers and make the necessary financial
arrangements (section 42). Accordingly, counsel submitted, a local authority
which chose to take over so much slum property that it might require at least
seven years to demolish it was acting contrary to the spirit of the housing
legislation and was asking for trouble, since the power to defer first
introduced by section 2 of the 1954 Act aimed merely at protecting a local authority
against emergency delays in demolition for short periods, such as a few weeks,
and it was never contemplated that deferment for a period of years would take
place. But whether Mr Hytner was right or wrong in this, the stipendiary
magistrate and the Divisional Court were certainly right in the way in which
they dealt with 20 Johnson Street. He (his Lordship) would accordingly give a
negative answer to the certified question and dismiss the appeal.
LORD FRASER OF
TULLYBELTON agreed with Lord Edmund-Davies and the appeal was accordingly
dismissed.
