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|Judgments - Oakley (A.P.) (On Appeal From A Divisional Court of The Queen's Bench Division)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Clyde Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
BIRMINGHAM CITY COUNCIL
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 30 NOVEMBER 2000
LORD SLYNN OF HADLEY
Section 79 in Part III of the Environmental Protection Act 1990 provides:-
The Act requires a local authority to investigate complaints of a statutory nuisance and itself to inspect premises in its area; it is empowered to serve an abatement notice, a failure to comply with which is an offence. In addition, by Section 82, a person who is aggrieved by the existence of a statutory nuisance may bring a complaint before a magistrates' court which, if the nuisance exists, is to make an order requiring the defendants to abate the nuisance and "to execute any works necessary for that purpose"; it may further or alternatively prohibit a recurrence of the nuisance and require the carrying out of any works to prevent the recurrence. To make the order is obligatory though what is ordered to be done is discretionary.
On 18 May 1996 Mr Oakley preferred an information that the appellant had failed to abate a statutory nuisance at 40 Hunslett Road, Quinton, Birmingham which is owned by the appellant and of which he was a tenant.
The magistrates heard the case on five different days. They found that the appellant and his wife with three children aged 18, 9 and 4 years respectively and a grandson of 17 months had lived in the premises for 3 years, though it seems that they no longer do so. The ground floor of the house included a bathroom with a washbasin next to a kitchen which had a sink. On the side of the kitchen opposite the bathroom was a door which led into a lavatory. There was no washbasin in the lavatory and no room to put one. Anyone using the lavatory who wanted to wash his hands would have to do so in the kitchen sink or he would have to go through the kitchen to the bathroom.
The magistrates were of the opinion that
The magistrates ordered that the lavatory be moved into the bathroom with an extractor fan and that the door into the bathroom be re-sited.
On an appeal by way of case stated the magistrates asked "(a) Whether we were correct to find a statutory nuisance existed at [the house] by reason of the absence of a hand basin within the WC compartment" and if so whether the Justices were correct to hold that the Council was responsible and that the nuisance arose from a structural defect. They also asked whether their findings were justified on the evidence.
The Divisional Court dismissed the appeal. Simon Brown L.J. (with whom Astill J. agreed) concluded "not without hesitation" that
The Divisional Court dismissed the appeal but certified that a question of general public importance was involved, namely
The facts are simple and homely but the question is important to the individual family and to the local authority. Your Lordships have been told that there are throughout the country, tens of thousands of homes (and 20,000 in the appellant's area alone) where the separate lavatory has no washbasin and that the decision of the justices and the Divisional Court will cause great financial problems and interfere with the planned upgrading of older houses. I do not attach too much importance to the number as it stands. Your Lordships are only concerned with a case where the access to washing facilities is in the kitchen or through the kitchen. The absence of a washbasin in a lavatory in other parts of the housea separate lavatory without a basin next to a bathroom or opposite to a bathroom on a bedroom floordoes not necessarily provide the same hygienic problems. Moreover the immediate problem for local authorities, great as it is, need not be as great as is suggested if regard is had to the judgment of Lord Widgery C.J. in Nottingham City District Council v. Newton  1WLR 923 at pages 929-930 (as approved by Lord Wilberforce in Salford City Council v. McNally  AC 379 at pages 389-390 where he stressed the discretion of the justices in what and when they ordered work to be done and the need to exercise common sense.
The arrangements found by the magistrates are by modern standards plainly unsatisfactory. The absence of a washbasin in the lavatory means that children (and others) are less likely to wash their hands. The need to wash in the kitchen sink or to go through a place where food is being prepared, to find a washbasin, carries obvious hygienic risks. It is surprising, not that the Building Regulations of 1991 made the provisions of a washbasin obligatory in new houses, but that it was not done earlier. None of this, however, resolves the present question. Although there can be no doubt that if "the state" of the premises includes the arrangement in this house, the magistrates were fully entitled to the opinion they expressed and in particular to their conclusion, that the arrangements were prejudicial to health. Moreover if there was a statutory nuisance it was clearly caused by the appellant Council, and not by the respondent, as the magistrates found. The question, and I have found it difficult, is whether the arrangements here fall within the words the state of the premises.
Taken literally, it can be said that "the state of the premises" is capable of a broad meaning to include a consideration of the layout, even unavoidable use within the layout. But a narrower meaning is equally possible. One must therefore look at the purpose of the legislation and for that to consider the history of the legislation and the context of these words in the Act of 1990 together with previous judicial interpretations.
The Statutory History
The story begins with the temporary Act of 1846 (9 and 10 Vict. c 96) "For the more speedy removal of certain nuisances". Prosecution could follow a certificate by two doctors
and that "the same is likely to be prejudicial to the health of the occupiers [or neighbours]." The Nuisance Removal and Diseases Prevention Act 1848 (11 and 12 Vict. c 123) was concerned inter alia with "any dwelling house .[which] is in such a filthy and unwholesome condition as to be a nuisance or injurious to the health of any person".
It seems to me clear that the facts of the present case would not have fallen within either the 1846 or the 1848 Acts.
But the legislation continued to develop. In the Nuisances Removal Act 1855 (18 and 19 Vict. c 121) as repeated in the Public Health Act 1875 (38 and 39 Vict. c 55) nuisances were defined as including "any premises in such a state as to be a nuisance or injurious to health". There is thus a change from "condition" in 1848 to "state" in 1855 and 1875. I accept that "state" may be wider than "condition" in this context. It is also to be noted that in the Acts of 1846 and 1848 the premises had to be in such a "filthy and unwholesome condition" as to be injurious to health. The 1855 and 1875 Acts are more general. For there to be an offence, the premises have to be simply "in such a state" as to be injurious to health.
Finally, in this particular legislation, the Public Health Act 1936, like the 1990 Act, defined statutory nuisances in Section 92(1)(a) as including "any premises in such a state as to be prejudicial to health or a nuisance" and defined "prejudicial to health" in Section 343(1) of the 1936 Act as "injurious, or likely to cause injury, to health", the latter again being an extension of previous legislation.
In considering the meaning of the relevant words in the 1990 Act, the respondent's case is in my view not precluded by the fact that other regulatory powers existe.g. Section 604 of the Housing Act 1985 which provides that a house is not fit for habitation if it does not have a "suitably located water closet"; Section 64(1) of the Building Act 1984 which empowers a local authority to require a closet to be provided if it appears that closets in the building are "in such a state as to be prejudicial to health or a nuisance and cannot without reconstruction be put into a satisfactory condition". Similarly in Section 1(1) of the Building Act 1984, the Secretary of State is empowered for the purpose inter alia of "(a) securing the health, safety, welfare and convenience of persons in or about buildings" to make regulations "with respect to the design and construction of buildings and the provision of services, fittings and equipment in or in connection with buildings". In the Building Regulations 1991 (SI 1991/2768) replacing the Building Regulations 1985 (SI 1985/1065) which came into force on 1 June 1992 in relation to the erection or extension of a building, "Part G Hygiene" in Schedule 1 provided as follows:-
Hot and cold water had to be provided for such washbasins.
These various statutory provisions are clearly dealing with the matters in dispute in the present case and they may be some indication as to the scope of the provisions of the 1990 Act, but in no way can it be said that they are conclusive that the facts of the present case cannot fall within Section 79 (1) (a). It is noted that in Salford City Council v. McNally  AC 379, Lord Wilberforce distinguished between the test under the Public Health Act and the question under the Housing Act, as to whether a house was "unfit for human habitation". The two tests are not the same.
Nor does it seem to me to be in any way relevant whether the landlord is in breach of his contractual obligations to the tenant.
The Earlier Decisions
In The Queen v. Parlby  XXII QBD 520 the Queen's Bench Division said in relation to "premises in such a state as to be a nuisance" in the 1875 Act
In Coventry City Council v. Cartwright  1WLR 845, where it was said that a pile of refuse and building waste constituted a nuisance under Section 92 (1) (c) of the 1936 Act as being "any accumulation or deposit which is prejudicial to health or a nuisance", Lord Widgery C.J. said at page 849
In Coventry City Council v. Doyle  1 WLR 1325 the Divisional Court held that a statutory nuisance could exist even if at the relevant date (the hearing before the justices) the premises were unoccupied.
In Birmingham District Council v. Kelly 17 HLR 572 the Divisional Court accepted that a statutory nuisance could exist even if there was no breach of building regulations or other statutory requirements. There each of the flats was found to be seriously affected by mould growth. The Court accepted that mould growth, because of inadequate heating, could constitute a statutory nuisance though it referred to Dover District Council v. Farrar  2HLR 32 where a claim failed because the tenant did not make adequate use of the heating system so as to prevent condensation which caused the mould.
In London Borough of Southwark v. Ince  21 HLR 504 the Divisional Court accepted that a failure properly to insulate against noise made the premises "in such a state as to be prejudicial to health" because of the entry of noise. Saville J. said that premises may be in such a state as to be prejudicial to health "for a whole variety of external factors, be they weather, noise, the incursion of sewage, or indeed anything else". A claim under the Public Health Act 1936 was still maintainable even if others had other legislative powers and duties to deal with the matter.
Turning to the recent cases in Regina v. Bristol City Council, Ex parte Everett  1WLR 92 and  1WLR 1170 Richards J. and the Court of Appeal held that in the light of earlier statutory provisions in identical terms, the danger of accidental or physical injury resulting from a steep staircase did not fall within the provision of Section 79 (1) (a) as being injurious to health. Richards J. said at page 102
A case said to be near to the present one is ex parte Saunders (1882/3) 3 XI QBD 191. There "defective water closet" existed in the centre of a house. The sanitary authority under Section 94 of the 1875 Act required the nuisance to be abated and for that purpose required the owner to remove the closet from the centre of the house and to place it near the outer wall where there might be efficient ventilation; the soil pipe, drains and flushing arrangements were to be altered. Some of the work was done but the closet was left where it was and the soil pipe was not fixed on the outer wall. The justices found that although the nuisance had abated it was likely to recur and they ordered the water closet, soil pipe and drains to be moved and they further ordered that efficient ventilation be provided. The question in issue was not as to whether the premises were in such a state as to be a nuisance but whether the justices had power to order the particular works to be done. The Court held that the justices had such power, distinguishing re Whitchurch 6QBD 545 where the justices had not merely required the nuisance to be abated but had also required a different type of closet to be built which it was held went beyond their powers.
For my part I do not think that Saunders really assists the respondent. The nuisance clearly came from the smells and risks to health existing in the premises due to the defective drains, the lack of ventilation and the defective flushing facilities. There was no nuisance when the justices heard the case (i.e. they did not base their decision on the layout) but they thought that the nuisance (i.e. the smells and risk of disease) would recur and that the right way to prevent this was to move the closet.
The words in context
The appellant relies on the distinction in Section 268(2)(a) of the 1990 Act between "state" and "use" in Section 268(2)(b) in relation to tents or vans used for human habitation. I do not get any assistance from that Section which is dealing with a very special situation.
Section 79(1) of the 1990 Act lists other matters which constitute "statutory nuisances"smoke, fumes or gases emitted from premises, dust or effluvia from industrial premises, any accumulation or deposit, noise emitted from premises or caused by a vehicle in the street and any animal kept in a place, in each case so long as they could be shown to be "prejudicial to health or a nuisance".
If in this case "the state of the premises" could include the arrangement of the rooms or the lack of a washbasin in the lavatory it would be nothing to the point that in 1846, perhaps even in 1920 or 1940 most people would not have regarded this as being prejudicial to health. Standards and attitudes change and the contemporary insistence on "now wash your hands" would make the position clear as the justices found. The question is whether it is right to interpret the phrase in the way proposed on behalf of Mr Oakley.
I am influenced in the first place by the fact that the earlier statutes were dealing with a "filthy and unwholesome condition" of a house or the collection of noxious matter or a foul or offensive drain or privy. All of these were in themselves prejudicial to health because of germs or smells and the risk of disease. When the words "in such a condition" or "such a state" as to be prejudicial to health were added they are to be read as seeking to achieve the same objective. They are directed to the presence in the house of some feature which in itself is prejudicial to health in that it is a source of possible infection or disease or illness such as dampness, mould, dirt or evil-smelling accumulations or the presence of rats. The state of the house must in itself have been prejudicial to health. This it seems to me is what the Divisional Court was saying in Reg. v. Parlby (supra) and in Ince (supra) Woolf L.J. said "the important feature to note with regard to Section 92(1)(a) is that it is the premises which have to be in such a state as to be prejudicial to health or a nuisance".
In the more recent legislation, the premises are not limited to dwelling houses but the matters listed in Section 79 of the 1990 Act are still in themselves capable of being prejudicial to healthsmoke or gases, dust or an accumulation or deposit. Subsection (1)(a) of course is not limited to the specific items listed in the other parts of the subsection but the other items do give an indication of the essential feature of the statutory nuisance which is being dealt with. There must be a factor which in itself is prejudicial to health. I do not think that the arrangement of the rooms otherwise not in themselves insanitary so as to be prejudicial to health falls within Section 79(1) (a).
There is in the present case nothing wrong with the lavatory nor is any defect in the drain suggested; there is no defect in the handwash basin. There is thus nothing in the premises themselves which is prejudicial to health. It is not sufficient to render the house itself "in such a state" as to be prejudicial to health that the lavatory and the washbasin are in separate rooms or that to get from one to the other it is necessary to pass through the kitchen where food is prepared. The prejudice to health results from the failure to wash hands or the use of the sink or the basin after access through the kitchen. Undesirable though this arrangement is, it does not seem to me that it is permissible to give an extended meaning to the words in Section 79(1)(a) however socially or hygienically desirable this might be. By reference to the building regulations there is much force in Mr Oakley's criticism of the arrangements but it is for parliament, the government or the local authority to take steps to remedy the problem and not for the courts to give an unjustified extension to words which have a different meaning and a different context. The object of Section 79 as with the earlier provisions was to provide a means for the summary removal of noxious matters. The fact that to achieve that structural alterations may have to be made does not mean that in the absence of such noxious matters the premises before the structural alterations are in such a state as to be prejudicial to health. In Birmingham District Council v. Kelly (supra) it was the mould which needed to be remedied by the provision of central heating and not the absence of central heating per se which made the state of the premises prejudicial to health. Where there is a defective drain or privy it is obvious that that in itself could constitute a statutory nuisance and render the premises in such a state as to be prejudicial to health. That is not the present case.
I consider therefore that this appeal must be allowed.
I have carefully studied the opinions of the majority. On balance I am not persuaded by their reasoning. Like Lord Clyde I take the view that, in the context of section 79(1)(a) of the Environmental Act 1990, the positioning of facilities, or the lack of a facility, may depending on the circumstances cause the premises to be in "such a state as to be prejudicial to health" and therefore a statutory nuisance. The appeal to Victorian social history, and legislative history going back more than a 150 years, is in my view not appropriate to the context. The Act of 1990 must be given a sensible interpretation in the modern world. The distinction between layout and state of the premises is not to be found in the statute, and it is certainly not indicated by the language of the provision or the context. It is on analysis no more than a verbal technique to cut down the generality of the wording of the modern statute. The justices were entitled to find that the premises were themselves inadequate so far as health and hygiene were concerned. Acknowledging that it is not an easy question, I prefer the broader approach of Lord Clyde to the narrow view of the majority. For the reasons Lord Clyde gives I would dismiss the appeal.
On the surface, this does not look like a very momentous case. The question is whether Mr and Mrs Oakley's landlord should have provided her with a basin in the WC. The statute which they say made it necessary to instal one is ambiguous. The language is capable of bearing such a construction. On the other hand, it is very unlikely that this was what Parliament intended. So the courts have a choice. If they say that Mr and Mrs Oakley should have had a basin, landlords of old houses and flats all over the country will have to instal them. Local authorities and housing trusts will have to incur very considerable expense. Under the surface, therefore, the case raises a question of great constitutional importance. When it comes to the expenditure of large sums of public and private money, who should make the decision? If the statute is clear, then of course Parliament has already made the decision and the courts merely enforce it. But when the statute is doubtful, should judges decide? Or should they leave the decision to democratically elected councillors or members of Parliament?
My Lords, the facts of the case are very simple. In 1996 Mr and Mrs Oakley were tenants of the Birmingham City Council. They lived with their children in a three-bedroomed house. But Mrs Oakley was dissatisfied with the kitchen and toilet facilities. Access to the bathroom was from one side of the kitchen and access to the tiny WC from the other. There was no basin in the WC. Anyone who used it had then to cross the kitchen to wash his hands in the bathroom or the kitchen sink. It was difficult to ensure that the children could not contaminate the food.
Mr Oakley made a complaint to the Birmingham Magistrates' Court alleging that the premises were in "such a state as to be prejudicial to health" and therefore a statutory nuisance within the meaning of section 79(1)(a) of the Environmental Protection Act 1990. The justices found that they were. They held that it was unacceptable in the interests of hygiene to expect a person who has used the lavatory to pass through the kitchen to wash his hands. It gave rise to a risk of cross infection. So the absence of a hand wash basin in the WC meant that the state of the premises was prejudicial to health.