R (Vella) v Lambeth Borough Council London and Quadrant Housing Trust intervening
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 2005 |
| Neutral Citation | [2005] EWHC 2473 (Admin) |
| Docket Number | Case No: CO/946/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2005 |
[2005] EWHC 2473 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Lord Justice Keene and
Mr Justice Poole
Case No: CO/946/2005
David Watkinson (instructed by Hackney Law Centre) for the Claimant
Andrew Arden QC & Jonathan Manning (instructed by Judge and Priestly,Bromley BRI 9JN) for the Defendant
Christopher Baker (instructed by Devonshire Solicitors) for the Interested Party
Poole J:
In this case the Claimant seeks judicial review of a decision of the London Borough of Lambeth (LBL) on or about 15 November 2004 not to serve an abatement notice pursuant to s 80 of the Environmental Protection Act 1990 (EP A) requiring works in respect of noise insulation. We have received arguments both written and oral from the Claimant, from the Defendant (LBL) and from the Interested Party the London and Quadrant Housing Trust (LQHT).
Details of the remedy sought are these:—
a quashing order of the decision of the LBL's Regulatory Services, (Noise and Pollution Control) not to serve an abatement notice pursuant to s 80 EPA requiring works in respect of noise nuisance on the Claimant's landlords LQHT;
a declaration that the decision of the LBL's, Regulatory Services, (Noise and. Pollution Control) not to serve an abatement notice pursuant to s 80 EP A requiring works in respect of noise nuisance on the Claimant's landlords LQHT was unlawful;
a mandatory order that the LBL's Regulatory Services, (Noise and Pollution Control) do serve an abatement notice pursuant to s 80 EP A requiring works in respect of noise nuisance on the Claimant's landlords LQHT; or
a mandatory order that the LBL's Regulatory Services, (Noise and Pollution Control) reconsider serving an abatement notice pursuant to s 80 EPA requiring works in respect of noise nuisance on the Claimant's landlords LQHT.
The History
On 13 th December 2000, the Claimant became the tenant of LQHT of a flat at 25 Elmhurst Mansions, Edgeley Road, SW4 6ET.
25 —30 Elmshurst Mansions is a terraced property constructed of traditional brick. In about 1978, it was converted into 6 flats, on three floors, two on each floor. There is a communal entrance and hallway and a bare wooden staircase to the upper floors. No 25 is a ground floor one bedroom flat.
From January 2001 the Claimant has made complaints to LQHT about noise transference from the flat above his and the communal hallway and stairs.
The noise, it is said, is. not due to unreasonable behaviour but to inadequate sound insulation. He can hear footsteps, conversations, flushing toilets, activity with pots and pans in the kitchen, bed squeaks, and water running through the main pipes, as well as TV and radio. Dropped items create loud banging. The Claimant describes the noise as incessant.
By a report dated 21/8/02 and subsequently revised in May and June 2003, Mr MA Kenyon MSc BSc MIOA of Martec Environmental Consultants found that the ceiling/floor between the living rooms of the Claimant's flat and the flat above failed the airborne sound requirement under the Building Regulations 1976 and the current Approved Building Regulations 1992 and that the wall between the living room/hallway failed the airborne requirement that and the ceiling/floor between the kitchens in the Claimant's flat and the flat above failed the impact sound and airborne requirements. He concluded, "In my experience the poor sound insulation would render premises in such a state as to be prejudicial to health or a nuisance [s 79(1) Environmental Protection Act (EP A) 1990]". He recommended further testing and upgrading to meet the sound insulation requirements.
The noise is such that the Claimant complains he is compelled to stay out of the flat for long periods. A report by Dr Dwyer MB BS (Psychiatrist) concludes, "the environmental noise pollution he reports is a significant perpetuating factor in his depressive illness".
In correspondence with LQHT between June and September 2003 the Claimant's solicitors warned of prosecution under s 82 EP A 1990 for permitting a statutory nuisance. That was not pursued.
In parallel correspondence with the Defendant Council the Claimant's solicitors requested that the Council investigate the Claimant's complaint of a statutory nuisance pursuant to s 79(1) of the EP A.
Eventually officers of the Council visited the flats to carry out a "subjective assessment of the noise" on 22/7/04 and 27/7/04.
The Council's decision following the assessment was received on 15/11/04. By that stage the Claimant's solicitor had sent a further report dated 25/10/04 to the Council made by Richard· Buckley BSc MSc MIOA which was also critical of sound insulation at the premises.
By the letter dated 15/11/04 the Council stated amongst other matters:—"Whilst we agree with the [Claimant's] scientific assessment, we do not believe that Mr Vella's premises can be classified as a statutory nuisance by virtue of it being in such a state as to be prejudicial to health or a nuisance. Accordingly we can see no legal justification in serving an abatement notice on either Mr Vella's landlord or his neighbour. We base our view and conclusion on the advice and opinion given us by our legal department".
By letter dated 31/1105 pursuant to the judicial Review pre-action protocol the Claimant's solicitors put to the Council the argument that it had misdirected itself essentially as set out below under "The Law and Submissions"..
By an e-mail dated 1/2/05 the Council replied, amongst other matters:—"I have considered your arguments very carefully and re-examined the opinion and advice given by our legal department. Clearly we are at odds and I am unsure how we can reach a satisfactory conclusion without your client having to resort to judicial review proceedings".
Claimant's first submissions of law in outline were these:—
A statutory nuisance within the meaning of s 79 (1)(a) of the EPA includes "premises in such a state as to be prejudicial to health or a nuisance". "Prejudicial" is further defined as "injurious or likely to cause injury to health" (s 79 (7)). Under s 80 the Council shall serve an abatement notice if "satisfied that a statutory nuisance exists". The Defendant is "the person responsible for the nuisance" defined as "the person to whose act, default or sufferance (permission) the nuisance is attributable" s 80 (2)(a) and s 79 (7). The owner of the premises is the proper defendant if the person responsible cannot be found —s 80 (2)(c).
The reason for the Council's decision, as the decision letter makes plain, is because of the legal advice the Officer had received from the Council's legal department.
That advice is recorded in a letter of 15.11.04 concluding in a refusal to serve an· abatement notice.
Firstly, submits the Claimant, the Council has misdirected itself by assuming a link between the "nuisance" limb of s 79 (1)(a) and the "prejudicial to health" limb.
A nuisance must be caused to neighbouring property ( LB Southwark v Mills 200032 HLR 148 at 159 —Lord Hoffman). It is for that reason he argues that the many prosecutions against landlords for the state of residential property leading to excessive condensation damp have been under the "prejudicial to health" limb (eg Birmingham DC v Kelly 1985 17 HLR 572) and not the nuisance limb as the occupiers could not prosecute in nuisance in respect of the property they themselves occupy.
However here, it is argued, the premises are "in such a state" by reason of inadequate sound insulation that they are prejudicial to health as the Claimant's evidence shows it. is prejudicial to hi~ health. Accordingly it is submitted that, properly directing itself the Council should have decided that it could have proceeded under the "prejudicial to health" limb.
In the original formulation of his Claim the Claimant added an argument in nuisance. This has now been abandoned.
Alternative Remedy.
Faced with the argument that an alternative remedy is open to the Claimant ie by himself prosecuting the Interested Party unders 82 of the EP A, as at one stage he proposed to do, the Claimantsubmits that for a number of reasons this would not be as "equally effective and convenient a remedy" as Judicial Review (see R v Birmingham City Council ex p Ferrero Ltd [1993] 1 All ER 530 at 536f). Firstly, this is a case requiring expert evidence from those holding noise nuisance or Environmental Health qualifications. It would be strenuously defended because of the financial implications of an order should other tenants decide to take the same course at the Claimant. The Interested Party is obviously better placed in terms of access to expert and legal advice and representation than he is. Moreover the Claimant does not have the financial resources to fund a private prosecution himself. These are, he argues, severe limitations to such a prosecution.
In his written submissions of20 September 05 amplified before us in the course of the hearing, Mr Watkinson for the Claimant added these submissions:—
The essential issue of the Claim was whether "statutory nuisance" within s 79 can include premises which are "in such a state as to be prejudicial to health or a nuisance" by reason of inadequate sound insulation; if so, then whether LBL decision not to serve an abatement notice erred in law;
and finally, whether relief should be refused as a matter of discretion as the Claimant has an "equally effective and convenient remedy"...
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