Judgments - Oakley (A.P.) (On Appeal From A Divisional Court of The Queen's Bench Division) On 29 November 2000

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    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann, with which I am in full agreement. In my view the Public Health Acts are concerned with the state of the premises, not with their layout or with the facilities which ought to be installed in them. In the present case the risk to health can be variously ascribed to the layout of the premises (because the lavatory was poorly sited) or to the absence of a desirable facility (a washbasin in reasonable proximity to the lavatory). But it does not derive from the state of the premises.

    The cases on which the respondent relied do not, in my opinion, support his argument. Reg. v. Wheatley (1885) 16 Q.B.D. 34 was concerned with untrapped drains. The drains formed part of the premises and constituted a health risk. The case is quite different from the present. The health risk derived from the presence of the drains, not from the absence of a trap. That was not in itself a health risk, but it made the drains one. A modern lavatory in good working order is not a risk to health, and the absence of a washbasin in the vicinity does not make it one. Ex parte Saunders (1883) 11 Q.B.D. 191 and Ex parte Whitchurch (1881) 6 Q.B.D. 545 were both concerned with defective privies which were themselves a risk to health.

    In Saunders the privy was situated in the centre of the house and lacked ventilation. The justices ordered it to be removed, placed near an outer wall and provided with efficient ventilation. They also ordered the soil pipe to be fixed outside the walls, the drains to be examined and if necessary re-laid, new joints to be provided and new flushing arrangements made. The privy and drains were expressly characterised as defective (see p. 191. It seems that the location of the privy was not the only risk to health, though it aggravated the problem and made it likely to recur.

    I do not doubt that the presence of a defective drain or lavatory lacking ventilation on the premises is capable of rendering the state of the premises a danger to health. But I do not consider that the complete absence of a lavatory (or a bath or kitchen), however inconvenient, could be said to render the state of the premises injurious to health. There was nothing wrong with the lavatory in the present case except its location. It was not a danger to health. Any danger to health arose from the absence of a washbasin in its vicinity. Whether the law should require washbasins to be installed near lavatories is a matter for Parliament, but the Public Health Acts are not a suitable vehicle. They are concerned with the state of premises and not with their physical layout or the facilities to be provided in them. These are matters for building regulations, which can distinguish between new constructions and old.

    It is, of course the case that, where the state of the premises is prejudicial to health, the danger may sometimes be remedied by the provision of additional facilities not already present. Premises which lack proper ventilation are damp. Premises which are damp are in a state which is injurious to health. This may be remedied by the provision of ventilation or the installation of heating appliances. But it does not follow from the fact that the risk to health in a particular case may be remedied by the provision of additional facilities that the risk is due to the state of the premises.

    I agree with my noble and learned friend Lord Hoffmann that the decision in London Borough of Southwark v. Ince (1989) 21 H.L.R. 504 (absence of sound insulation) may require reconsideration.


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