Judith Robb V. Dundee City Council
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Cameron of Lochbroom,Lady Paton |
| Date | 13 February 2002 |
| Docket Number | XA183/00 |
| Court | Court of Session |
| Published date | 13 February 2002 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Cameron of Lochbroom Lord Johnston Lady Paton
| XA183/00 OPINION OF LORD CAMERON OF LOCHBROOM in APPEAL From the Sheriffdom of Tayside, Central and Fife at Dundee in the cause JUDITH ROBB (A.P.) Pursuer and Appellant; against DUNDEE CITY COUNCIL Defenders and Respondents: ________ |
Act: Sutherland; Anderson Strathern, W.S. (Mike Dailly, Govan Law Centre) (Pursuer and Appellant)
Alt: J. Williamson; Haig-Scott & Co., W.S. (Defenders and Respondents)
13 February 2002
[1]The parties to this appeal are a secure tenant, in terms of the Housing (Scotland) Act 1987, ("the pursuer"), of premises in Dundee and the landlords and owners of those premises, ("the defenders"). In February 1998 the pursuer served upon the defenders an initial writ by way of a summary application to the sheriff at Dundee. In the writ the pursuer craves grant of an order under section 82(2)(a) of the Environmental Protection Act 1990 ("the 1990 Act") requiring the defenders to abate the nuisance described in the writ within a time specified in the order and to execute any works necessary for that purpose. After proof, the sheriff found in law that the pursuer had failed to prove that the premises occupied by her are a statutory nuisance within the terms of the 1990 Act and that she is not entitled to an order under section 82 of that Act. In terms of his decision dated 14 December 1998 the sheriff assoilzied the defenders from the crave of the writ. On appeal to the sheriff principal, the sheriff principal by interlocutor dated 21 December 1999 refused the appeal by the pursuer. The pursuer has now appealed to this court.
[2]In her application the pursuer proceeds upon two distinct grounds. The first is that the premises are in such a state as to be prejudicial to the health of the pursuer and her young son, who lives with her, in that the subjects suffer from condensation, dampness and mould. The second is that since the premises suffer from condensation, dampness and mould and the risk of further condensation, dampness and mould growth, then even if the state of the premises is not prejudicial to health, nevertheless the premises are in such a state as to constitute a nuisance in that the condensation, dampness and mould at the subjects interfere with the pursuer's comfort and are offensive to her and her family.
[3]These two separate and distinct grounds for the application reflect the provisions of section 79 of the 1990 Act as amended in accordance with paragraphs 2 to 7 of Schedule 17 to the Environment Act 1995 which extended Part III of the 1990 Act to Scotland. The relevant provisions are set out in the sheriff's note in detail and I do not rehearse them at length. However it is to be noted that section 79(1) begins as follows:
"Subject to subsections (1A) and (6A) below, the following matters constitute 'statutory nuisances' for the purpose of this Part, that is to say-
(a)any premises in such a state as to be prejudicial to health or a
nuisance"
and that sub-section (7) states that "prejudicial to health means injurious, or likely to cause injury, to health".
[4]It was common ground between parties before this court, as it was before the sheriff and the sheriff principal, that the two limbs of section 79(1)(a) are quite separate and fall to be considered separately. Likewise it was common ground that, in relation to what constitutes "prejudice to health", the test is an objective one.
[5]It was also accepted that the parties in an appeal such as the present are bound by the findings in fact made by the sheriff. For the pursuer to succeed in her appeal, it is necessary for her to be able to demonstrate that the sheriff and the sheriff principal erred in law in reaching the conclusions that they did on the facts found; in other words, that the findings in fact and law made by the sheriff, to which the sheriff principal adhered, were perverse in the face of the facts found.
State of the premises
[6]While I will return to this matter again later in this opinion, it is necessary to keep in mind that the issues arising in the appeal must start from a consideration of the findings in relation to "the state" of the premises. I refer to what was said by Lord Wilberforce in his speech in Salford City Council v. McNally 1976 AC 379 at p. 389, namely, that the first task of magistrates in dealing with complaints under the analogous provisions of the Public Health Act 1936, was to find what was the condition of the premises. The phrase "the state" of any premises, in the context of section 79(1)(a) of the 1990 Act, requires to be given the narrow construction set out in the speeches of the majority in Birmingham City Council v. Oakley 2001 1 AC 617. That case was decided after the sheriff and the sheriff principal had reached their decisions. What has to be looked for is "a factor which in itself is prejudicial to health" - see Lord Slynn of Hadley at p.627F. Again, Lord Clyde, at p. 634A, noted that in approaching the matter of the state of the premises it was clear that an objective point of view was required and that one should not be looking to the particular requirements of a particular occupier. After quoting a passage from the judgment of Wills J. in Reg. v. Parlby 22 QBD 520, Lord Clyde went on to say this:
"It is then to the premises themselves that attention is to be directed. There must be something about the state of the premises which is prejudicial to health or a nuisance. The provision is not concerned with matters of construction such as may give rise to accidental injury. In that respect the physical state of the premises is not relevant. Nor is it concerned with mere matters of comfort or convenience which do not relate to any danger to health. But while it is matters of illness and disease rather than accidental injury or mere comfort which are relevant, that does not require the exclusion of consideration of the way in which the premises will ordinarily be used."
It was this last view about exclusion of consideration of the ordinary use of the premises that divided their Lordships. The majority view was that the relevant section did not extend to the layout of the premises, unavoidable use within the layout or the facilities which ought to be installed. Until 1995 there was separate Scottish legislation concerned with this area of public health. But it has long been recognised that English authority could be applied in the context of this legislation. I refer, for instance, to Broun - The Law of Nuisance in Scotland (1891) p.139 and following pages and to Upper District Committee of the County of Renfrew v. Wardrop's Tr. 1927 SLT (Sh. Ct.) 68. Since the two legislative systems have now been conjoined in the one Act, it follows that the decision in Oakley is binding.
[7]The findings of the sheriff in the case can be summarised as follows.
[a]The subjects occupied by the pursuer and her young son are one of two ground floor flats within a block of six flats. The block was built in 1958. It is entered by a common close or hall.
[b]The pursuer's flat comprises a livingroom, two bedrooms, a kitchen and a bathroom. As constructed the flat has three exposed external walls of brick, cavity, brick construction, rendered on the external face and plastered on the inner face. On each of the three external walls there is wall cavity insulation. The fourth wall of the flat is a semi-exposed wall adjacent to the common close. This wall is of solid construction and not capable of benefiting from wall cavity insulation.
[c]The block was constructed according to the standards pertaining as at the time of construction. The subjects occupied by the pursuer are not in need of repair and there has been no problem regarding the level of maintenance carried out by the defenders as landlords. It is not disputed that there is no obligation on the defenders to carry out any works to bring the block up to the current building regulation standards which do not operate retrospectively.
[d]At the time of construction the subjects had a solid fuel fire heating system installed in the living room. This was subsequently bricked up and the defenders replaced the solid fuel fire with an electric radiant heater in the livingroom. This heater was not intended to provide whole heating for the flat. Energy for heating in the flat comes from the mains electric supply. There are electric supply sources for heating in each bedroom and in the hallway. In addition there is a manual controlled extractor fan in the kitchen and a humidistat fan in the bathroom to assist in providing adequate ventilation in the flat. Double glazing was installed in the flat by the defenders in January 1997.
[e]The pursuer took occupancy of the flat in July 1996. In August 1996 mould growth was noted on the walls and ceilings. This growth continued despite the efforts of the pursuer and her family to clean it off. Complaints were made to the defenders from January 1997 onwards. Severe dampness developed in the back bedroom from the date of entry forcing the pursuer's son to vacate it. The pursuer attempted to ventilate the flat as instructed by the defender's officials and to provide extra heating by installing a wallmounted convector heater in the hallway and a freestanding convector heater for each of the bedrooms. The pursuer, given her financial circumstances, applied as much heating as she could afford. She used both extractor fans but they did not prevent condensation dampness in the flat. The problem of dampness continued and mould growth damaged the decoration of the house and bedding, clothes and toys.
[8]In addition the sheriff made findings in fact 71,72,73 and 75 as follows:
"71.Condensation in the pursuer's flat has been caused primarily by the lack of an adequate heat source to raise temperatures throughout the flat to sufficient levels. Such heating as there has been has not been...
To continue reading
Request your trial