R v Liverpool Crown Court, ex parte Cooke
| Jurisdiction | England & Wales |
| Date | 1996 |
| Year | 1996 |
| Court | Divisional Court |
Public Health - Nuisance - Statutory nuisance - Award of compensation for continuance of nuisance- Period for which compensation payable - Whether order properly made - Whether appropriate to impose fine in addition -
The applicant, who was a tenant of council premises, gave notice to the council pursuant to section 82(6) of the Environmental Protection Act 1990F1 that she intended to bring proceedings for statutory nuisance if rodent infestation, damp and egress of sewage into the premises was not remedied to her satisfaction. The applicant issued a complaint in the magistrates' court on 17 November 1994 that the nuisance continued to exist. Following a plea of guilty, on 18 January 1995 the magistrate ordered the council to abate the nuisance and to pay the applicant £3,000 in compensation on the basis of the assumed continuance of the nuisance for the previous 2½ years. On appeal by the council the Crown Court reduced the compensation to £250 and imposed a fine of £500.
On the applicant's application for judicial review:—
Held, dismissing the application, that in proceedings under section 82 of the Environmental Protection Act 1990 compensation pursuant to section 35 of the Powers of Criminal Courts Act 1973 could be awarded only for such injury, loss or damage as was proved to have been caused by the continuance of the nuisance after the expiry of the period stated in the notice under section 82(6) of the Act of 1990 until the date of the hearing; that, if there was a delay of more than six months after the expiry of the notice before a complaint was made to the magistrates' court, the offence which could form the basis for compensation would not commence earlier than six months before the date of the complaint; that claims for compensation should be heard by magistrates' courts only when they were simple and straight-forward; that where a compensation order was itself large enough to be punitive there was no occasion to impose a fine as well; that, since the Crown Court had reduced the size of the compensation order, it had been necessary to add a fine for punitive effect; and that, accordingly, the Crown Court had come to the right conclusion for substantially the right reasons (post, pp. 705F–706A, B–D, 709E–G).
The following cases are referred to in the judgments:
Botross v. Hammersmith and Fulham London Borough Council (
Davenport v. Walsall Metropolitan Borough Council (unreported), 17 March 1995,
Herbert v. Lambeth London Borough Council (
Northern Ireland Trailers Ltd. v. Preston Corporation [
Reg. v. Inner London Crown Court, Ex parte Bentham [
Reg. v. Newham East Justices, Ex parte Hunt [
Sandwell Metropolitan Borough Council v. Bujok (
The following additional cases were cited in argument:
Bond v. Chief Constable of Kent [
Calabar Properties Ltd. v. Stitcher [
Coventry City Council v. Doyle [
Joyce v. Liverpool City Council [
Reg. v. Crutchley and Tonks (
Reg. v. Donovan [
Reg. v. Kneeshaw [
Reg. v. Oddy [
Reg. v. Robert Millar (Contractors) Ltd. [
Reg. v. Thomson Holidays Ltd. [
APPLICATION for judicial review.
Jacqueline Anne Cooke applied, with the leave of Tucker J. granted on 30 August 1995, for judicial review by way of an order of certiorari to quash the decision of Judge Hamilton, sitting with lay justices, in the Crown Court at Liverpool on 31 March 1995 to allow the appeal of the second respondent, Liverpool City Council, from the decision of the stipendiary magistrate, Mr. D. R. G. Tapp, sitting in the Liverpool Magistrates' Court on 18 January 1995 to the extent that the order that the city council pay compensation in the sum of £3,000 for causing a statutory nuisance to the applicant was replaced with a compensation order in the sum of £250. The applicant also applied for the decision of the Crown Court to be remitted to it or, in the alternative, for the High Court to make an order for compensation of its own.
The facts are stated in the judgment of Leggatt L.J.
Timothy King Q.C. and Ivan Woolfenden for the applicant.
John Howell Q.C. and Ranjit Bhose for the city council.
3 April. The following judgments were read.
LEGGATT L.J. The applicant, Jacqueline Anne Cooke, applies by leave for judicial review of the judgment of Judge Hamilton sitting with lay justices in the Crown Court at Liverpool on 31 March 1995, by which the appeal of the city council was allowed to the extent that a compensation order in the sum of £3,000 made in favour of the applicant on 18 January 1995 by Mr. Tapp sitting as a stipendiary magistrate was replaced by an order for compensation in the sum of £250. By letter dated 24 October 1994 notice was given of the applicant's intention to bring proceedings for an order under section 82(2) of the Environmental Protection Act 1990. The letter ended:
“We hereby give notice pursuant to section 82(7) of the Environmental Protection Act 1990 that our client proposes to bring proceedings in respect of statutory nuisance under section 79 of the Act after 21 days from the date of this letter if rodent infestation, damp and egress of foul water/sewage from the soil pipe [at] flat 33 referred to above have not been remedied to her satisfaction.”
A complaint was issued on 17 November 1994 alleging:
“on 17 November 1994 a statutory nuisance defined by section 79(1)(a) and (e) of the Environmental Protection Act 1990 exists at 33a, Hawkstone Street, Liverpool 8, Merseyside and continues to exist and the nuisance (particulars of which are given in the attached inspection report dated 3 November 1994) is the responsibility of the said Liverpool City Council and in so far as it results in defects in the structure and exterior of the said dwelling house is their responsibility as owners.”
On 21 December 1994 the city council pleaded guilty at the magistrates' court. On 18 January 1995 it was ordered that the city council should carry out specified works to abate the nuisance, that the city council should pay the applicant's costs of £2,171·50 and that the city council should pay £3,000 in compensation to the applicant. No evidence was heard on the amount of compensation to be awarded, which was not agreed. The award was based on the assumed continuance of a nuisance for the previous 2½ years. On appeal by the city council the Crown Court reduced the compensation to be paid to £250 and imposed a fine of £500.
So far as material section 82 of the Act of 1990 provides:
“(1) A magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of 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 a time specified in the order, and to execute any works necessary for that purpose; (b) prohibiting a recurrence of the nuisance, and requiring the defendant, within a time specified in the order, to execute any works necessary to prevent the recurrence; and may also impose on the defendant a fine not exceeding level 5 on the standard scale. (3) If the magistrates' court is satisfied that the alleged nuisance exists and is such as, in the opinion of the court, to render [the] premises unfit for human habitation, an order under subsection (2) above may prohibit the use of the premises for human habitation until the premises are, to the satisfaction of the court, rendered fit for that purpose. (4) Proceedings for an order under subsection (2) above shall be brought — (a) except in a...
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