Botross v Hammersmith and Fulham London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM |
| Judgment Date | 21 October 1994 |
| Judgment citation (vLex) | [1994] EWHC J1021-7 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2490/94 |
| Date | 21 October 1994 |
[1994] EWHC J1021-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Beldam and Mr Justice Buxton
CO/2490/94
MISS BETHAN HARRIS (instructed by Messrs White Ryland, London W12) appeared on behalf of THE APPELLANT
MR KARL SCHOLZ (instructed by the Solicitor to the Borough of Hammersmith & Fulham) appeared on behalf of THE RESPONDENTS
Friday 21 October 1994
For the reasons given in the judgment handed down, this appeal will be allowed.
This is the judgment of the court. In this case stated the justices of the West London Division of the Inner London area pose the question whether in proceedings brought pursuant to s. 82(1) of the Environmental Protection Act 1990 the court has jurisdiction on proof by an aggrieved person that a defendant has been guilty of an alleged nuisance to make an order for compensation pursuant to sec. 35(1) of the Powers of Criminal Courts Act 1973.
The question arises from an allegation by the appellant, Mrs Marilla Botross, that the respondent Council were responsible for a statutory nuisance at 3 Mitchell House, White City Estate, London W.12. Mrs Botross there occupies a ground floor flat with her husband and five children under a tenancy agreement with the respondents. By May 1993 the appellant was complaining of widespread dampness and considerable associated mould growth in her flat. The flat was inspected by an environmental health consultant who discovered extensive areas of dampness from a leaking rainwater downpipe, from rising damp, from chronic condensation and other causes. The extent of the damp and mould growth were potential threats to health and in the consultant's opinion a statutory nuisance existed. Accordingly, after giving the required 21 days notice to the respondent, the appellant sent to the West London Magistrates Court a document headed "Information" addressed to the respondents alleging the following offence:
"That on 8th September 1993 a statutory nuisance as defined by sec. 79(1)(A) of the Environmental Protection Act 1990 exists at 3 Mitchell House, White City Estate, London W12, and continues to exist, and that the nuisance is the responsibility of the London Borough of Hammersmith and Fulham and insofar as it results from structural defects is their responsibility as owners."
The report of the environmental health consultant was sent with the information.
On receipt of this document the clerk to the court crossed out the heading "Information" and substituted "Complaint"; he made a similar alteration later in the document. However, the summons dated 15th October 1993 described the appellant as "informant" and the respondents as the "accused" and gave details of the offence stating:
"Complaint has been made by Marilla Botross that she is a person aggrieved by the existence of a statutory nuisance as defined by sec. 79(1)(a) of the Environmental Protection Act 1990 arising from a defect of a structural character at 3 Mitchell House, White City Estate, London W12, that the defendant is the owner of the said premises and has been given the required notice in writing of the complainant's intention to bring these proceedings and that the court should make an order and impose a fine on the defendant as provided by sec. 82(2) of the said Act. Contrary to sec. 82 of the Environmental Protection Act 1990."
With the summons was sent a notice to the accused:
"If you are convicted, the court may order you to pay a fine…"
On 24th November 1993 the respondent denied the existence of a nuisance and the matter was adjourned to be heard. However, on 25th January 1994, the day of the intended substantive hearing, the respondent admitted its responsibility for the existence of the statutory nuisance. After counsel had outlined the facts of the case, the appellant sought:
(a) An abatement order;
(b)Compensation pursuant to sec. 35 of the Powers of the Criminal Courts Act 1973;
(c) Costs of £2,000.
The justices consulted their clerk who advised them that as the proceedings before them were civil proceedings, a finding that the respondents had caused or committed a statutory nuisance was not a conviction; accordingly the justices had no power to make an order under sec. 35(1) of the Powers of Criminal Courts Act 1973.
The justices accepted their clerk's advice. They made an abatement order requiring the respondent to remedy and to prevent recurrence of all forms of dampness at the premises and to replace certain dilapidated parts of them within a period of 16 weeks, but made no order for costs and no order for compensation.
The appellant asked the justices to state the present case.
Sec. 79 of the Environmental Protection Act 1990 provides:
"(1)Subject to sub-sections (2) to (6) below, the following matters constitute "statutory nuisances" for the purposes of this part, that is to say —
(a)any premises in such a state as to be prejudicial to health or a nuisance; …"
Sec. 80 provides for summary proceedings for statutory nuisances:
"(1)Where a local authority is satisfied that a statutory nuisance exists or is likely to occur or recur in the area of the authority, the local authority shall serve a notice ("an abatement notice") imposing all or any of the following requirements -
(a)Requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;
(b)Requiring the execution of such works and taking of such other steps as may be necessary for any of those purposes,
and the notice shall specify the time or times within which the requirements of the notice are to be complied with."
Sub-section (2) requires service of the abatement notice on the person responsible for the nuisance and sub-section (3) gives a right of appeal against the notice to the Magistrates Court within 21 days.
Sec. 80 provides further:
"(4)If a person on whom an abatement notice is served, without reasonable excuse contravenes or fails to comply with any requirement or prohibition imposed by the notice he shall be guilty of an offence.
(5)Except in a case falling within ss. (6) below, a person who commits an offence under ss. (4) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after conviction."
Sec. 82 gives a person aggrieved the right to take summary proceedings for a statutory nuisance; the provisions relevant in this case read:
"(1)A magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by a statutory nuisance.
(2)If the magistrates' court is satisfied that the alleged nuisance exists or that although abated it is likely to recur on the same premises, the court shall make an order for either or both of the following purposes -
(a)Requiring the defendant to abate the nuisance within the time specified in the order and to execute any works necessary for that purposes;
(b)Prohibiting a recurrence of the nuisance and requiring the defendant within the time specified in the order to execute any work necessary to prevent the recurrence.
and may also impose on the defendant a fine not exceeding level 5 on the standard scale."
The answer to the stated question turns on whether by using the words "and may also impose on the defendant a fine not exceeding level 5 on the standard scale", it was the intention of Parliament to impose a criminal penalty for responsibility for the existence of the nuisance so that a finding against the person alleged to be responsible would mean that he was a person "convicted" of an offence within sec. 35(1) of Powers of Criminal Courts Act 1973.
The provisions of Sec. 82 have a substantial legislative history. Sec. 105 of the Public Health Act 1875 gave private individuals the right to complain to justices of a statutory nuisance and on such a complaint gave the justices the powers contained in sections 91–96 for the abatement of nuisances. These sections provided for the giving of notice to the local authority of the existence of certain statutory nuisances defined in sec. 91 and for an authority to whom such notice was given to serve an abatement notice. If that notice was not complied with, the local authority had to lay a complaint before justices resulting in the issue of a summons before a court of summary jurisdiction. Similarly by sec. 96 the court was empowered to make an order for the abatement of the nuisance for the carrying out of works within a specified time and could impose penalties.
In 1936 these provisions were reproduced in the Public Health Act 1936.
Sec. 99 of the Public Health Act 1936 provided:
"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 proceeding 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 a local authority an opportunity of being heard thinks fit direct the authority to abate the nuisance."
The "like proceeding" refers to proceedings under sec. 93 and 94 of the Act under which the local authority to whom a complaint was made could serve an abatement notice and the person on whom it was served, if in default, was under sec. 94 dealt with on complaint made to justices...
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