Oakley v Birmingham City Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SLYNN OF HADLEY,LORD STEYN,LORD HOFFMANN,LORD CLYDE,LORD MILLETT
Judgment Date30 November 2000
Judgment citation (vLex)[2000] UKHL J1130-1
Date30 November 2000

[2000] UKHL J1130-1

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Steyn

Lord Hoffmann

Lord Clyde

Lord Millett

Birmingham City Council
(Appellants)
and
Oakley (A.P.)
(Respondent)

(On Appeal From A Divisional Court Of The Queen'S Bench Division)

LORD SLYNN OF HADLEY

My Lords,

1

Section 79 in Part III of the Environmental Protection Act 1990 provides:-

"Statutory nuisances and inspections therefor"

(1) 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;

(7) "prejudicial to health" means injurious, or likely to cause injury, to health;"

2

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.

3

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.

4

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.

5

The magistrates were of the opinion that

"7(b) It is important to practice good hygiene practices especially with regard to the younger members of the household.

(d) It is unacceptable in the interest of hygiene

having used the WC to expect persons to either:

  • (a) wash hands in kitchen sink or

  • (b) cross kitchen to bathroom

as both of these involve the risk of cross infection within the kitchen area. There is nothing the respondent can do to make it safe."

6

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.

7

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.

8

The Divisional Court dismissed the appeal. Simon Brown L.J. (with whom Astill J. agreed) concluded "not without hesitation" that

"in cases like this the way the premises are used is the direct result of their layout, and if, as it was found here, that use is predictably so unhygienic as to create a health risk, then it is the state of the premises which is injurious to health."

9

The Divisional Court dismissed the appeal but certified that a question of general public importance was involved, namely

"whether premises in their original state but which contain a WC compartment without a washhand basin and in respect of which WC compartment the nearest washhand basin is in the kitchen or has to be accessed through the kitchen so as to give rise to a risk of disease or illness are capable of being found to constitute a statutory nuisance within the meaning of Section 79(1)(a) of the Environmental Protection Act 1990."

10

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 house—a separate lavatory without a basin next to a bathroom or opposite to a bathroom on a bedroom floor—does 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 [1974] 1WLR 923 at pages 929-930 (as approved by Lord Wilberforce in Salford City Council v. McNally [1976] 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.

11

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.

12

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.

13

The Statutory History

14

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

"of the filthy and unwholesome condition of any dwelling house or other building, or of the accumulation of any offensive or noxious matter, refuse, dung, or offal, or of the existence of any foul or offensive drain, privy, or cesspool"

15

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".

16

It seems to me clear that the facts of the present case would not have fallen within either the 1846 or the 1848 Acts.

17

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.

18

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.

19

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 exist—e.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...

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