R v Bristol City Council, ex parte Everett
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RICHARDS |
| Judgment Date | 26 February 1999 |
| Judgment citation (vLex) | [1998] EWCA Civ J0513-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBCOF 98/0718/4,CO/2837/97 |
| Date | 26 February 1999 |
[1998] EWCA Civ J0513-2
Mr Justice Richards
CO/2837/97
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
MR M WESTGATE (Instructed by Messrs Bobbetts Mackan, Bristol) appeared on behalf of the Appellant
MR R BHOSE (Instructed by The Treasury Solicitor) appeared on behalf of the Crown
(As Approved)
Since September 1994 the applicant has been the tenant of premises at 14 Bannerman Road, Eaton, Bristol ("the property"). The property is a house constructed in the late nineteenth century, on two floors, with a steep internal staircase. The applicant suffers from a back injury and experiences difficulty in negotiating the stairs. She fears that she may suffer a fall on them and thereby injure herself. It is said on her behalf that the staircase gives rise to a statutory nuisance under Part III of the Environmental Protection Act 1990 ("the 1990 Act"). At one point the respondent Council appeared to be of that view. In February 1994, before the commencement of the applicant's tenancy, it served an abatement notice under Part III on the landlord, Solon South West Housing Association ("Solon"), requiring the existing staircase to be taken out and a new staircase to be constructed. The notice was not, however, enforced. On 9 December 1996 the Council informed the applicant that the staircase could not be considered a statutory nuisance and that the notice had therefore been incorrectly served and would be withdrawn. In these proceedings for judicial review the applicant challenges the decision to withdraw the notice. The challenge gives rise to a number of issues:
(1) Where premises are in such a state as to create a likelihood of accident causing personal injury, do they thereby constitute a statutory nuisance within s.79(1)(a) of the 1990 Act?
(2) Did the steep staircase in this case cause the property to constitute a statutory nuisance?
(3) Was the Council entitled to withdraw the abatement notice that it had served in respect of the property?
(4) Should relief be refused in any event on discretionary grounds?
Before considering those issues, it is necessary to examine in greater detail the legislative framework and the factual background.
The legislative framework
Part III of the 1990 Act contains procedures for dealing with statutory nuisances. The matters constituting "statutory nuisances" for the purposes of Part III are defined in s.79(1) as including "(a) any premises in such a state as to be prejudicial to health or a nuisance." By s.79(7), "prejudicial to health" means "injurious, or likely to cause injury, to health." Other matters constituting statutory nuisances include smoke, fumes, dust, accumulations or deposits, animals and noise, in each case where prejudicial to health or a nuisance.
By the tailpiece to s.79(1), every local authority is under a duty to inspect its area for, and to investigate complaints about, statutory nuisances. Section 80(1) provides that -
"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 the 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."
The person served with an abatement notice may appeal against it to the magistrates' court within 21 days from date of service: s.80(3) and schedule 3, paragraph 1. A person on whom an abatement notice is served is guilty of an offence if, without reasonable excuse, he contravenes or fails to comply with any requirement or prohibition imposed by the notice: s.80(4). A person who commits such an offence is liable on summary conviction to a fine: s.80(5)-(6).
In addition to the service of an abatement notice by the local authority, there exists a separate and parallel procedure for summary proceedings by persons aggrieved by statutory nuisances. By s.82(1), a magistrates' court may act on a complaint made by any such person. Before a complaint is laid, the person aggrieved must give notice, generally not less than 21 days, to the proposed defendant: s.82(6). If the court is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, the court is required to make an order requiring the defendant to abate the nuisance and/or prohibiting a recurrence of the nuisance: s.82(2). It may also impose a fine on the defendant. Contravention of any requirement or prohibition imposed by an order of the court is an offence exposing the offender to liability to a fine on summary conviction: s.82(8).
The facts
In January 1994 Ms Fiona Mulcahy, one of the Council's Environmental Health Officers, had concluded that the property constituted a statutory nuisance because of the steepness of the staircase. The existing tenant had fallen at least once on the stairs. An abatement notice was served on Solon on 21 February 1994, specifying that the nuisance arose from "excessively steep stairs within the property" and requiring Solon to take out the existing staircase and to construct a new staircase in a suitable position and complying with current building regulations.
On 11 July 1994 Ms Mulcahy wrote to Solon confirming that as the property was now unoccupied the nuisance no longer existed. The letter continued:
"As mentioned, I met the Building Control Officer at the property to discuss the staircase and any options available. It was decided that due to the internal layout it would not be possible to alter the staircase without changing the entire layout of the property.
Due to the financial implications such a scheme would involve, I am prepared not to enforce the provisions of the Environmental Protection Act Notice of 21st February 1994, provided that Solon are careful in the selection of prospective tenants for this property. It is clearly unsuitable for anyone with small children or anyone with mobility difficulties or disabilities.
I would suggest that it is pointed out to prospective tenants viewing the property that the stairs is inordinately steep. Although the notice is not being enforced at present, should any future tenants experience similar difficulties using the stairs as the previous tenants, it may be deemed necessary to serve Notice again."
The applicant became the tenant of the property on 30 September 1994. She viewed the property before accepting it and was plainly aware of the steepness of the staircase. It appears that at that time she was in good health and, although she found the staircase steep, she was able to cope with it. Subsequently, however, she sustained a back injury at work which affected her mobility. As a result she now finds the staircase difficult to negotiate. At some point after moving into the property she was joined by her young son, who is about 10 years of age.
In February 1995, following a complaint by the applicant, one of the Council's Environmental Health Officers told her that remedial works were not practical. In March 1996, following a further complaint, the premises were examined by another officer, Mr Richard Tacagni. He, too, explained that no enforcement action could be taken, but by letter dated 1 April 1996 to Solon he advised the provision of a handrail to the top section of the staircase in order to help improve safety. That work was subsequently carried out.
Later in the year the matter was taken up by solicitors on behalf of the applicant. This prompted a letter dated 9 December 1996 from Mr Tacagni in these terms:
"I have now obtained advice from the City Council's Legal Division concerning the validity of the Section 80 Environmental Protection Act 1990 Notice dated 21st February 1994. It would seem that in these circumstances an 'excessively steep staircase' cannot be considered a statutory nuisance. The notice was therefore incorrectly served and will now be withdrawn."
What lay behind that letter is explained to some extent in the affidavit of Mr Dale Collins, the solicitor in the Council's Corporate Services Legal Division who advised on the matter. He did not, it would seem, advise that a steep staircase could never constitute a statutory nuisance. Indeed, his affidavit expressly accepts on behalf of the Council that an inherent defect such as an excessively steep staircase may in specific circumstances constitute a statutory nuisance. He states, however, that it was his view "that in the circumstances as outlined to me the staircase was not 'inherently detrimental' and did not fall within the definition of 'prejudicial to health' contained with Section 79 of the Environmental Protection Act as being 'injurious, or likely to cause injury to health', nor was it a nuisance as it only affected the person occupying the premise" (original emphasis).
On 11 December 1996 the applicant's solicitors sent to the Council a copy of a report prepared by Mr Roger Head, a housing and environmental consultant. Mr Head stated in his report that the narrowness of the treads and the steep pitch of the staircase at the property presented an increased risk of falls. That, together with other problems that he had identified at the property (damp conditions in the hallway, and noise nuisance), caused him to conclude that the property...
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