Robb v Dundee City Council
| Jurisdiction | Scotland |
| Judgment Date | 13 February 2002 |
| Date | 13 February 2002 |
| Docket Number | No 27 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Landlord and tenantHousingPublic sector housingNuisanceDampnessWhether state of premises was prejudicial to health of appellant or constituted a nuisance in that dampness interfered with her comfortWhether landlords were responsible for state of premises where additional heating would have prevented dampnessEnvironmental Protection Act 1990 (cap 43), secs 79 and 821
Statutory interpretationConstruction of sectionState of premisesStatutory nuisancePerson responsible for the nuisanceDefect of a structural characterEnvironmental Protection Act 1990, (cap 43), secs 79 and 82.1
Section 79(1) of the Environmental Protection Act 1990 enacts that Subject to subsections (1A) to (6A) below, 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 prejudicial to health or a nuisance;. Section 79(7) provides that prejudicial to health means injurious, or likely to cause injury, to health. Section 82 provides that any person aggrieved by a statutory nuisance may apply to the sheriff for an order requiring the defenders to abate the nuisance. Proceedings for such an order are to be brought against the person responsible for the nuisance, or where the nuisance arises from any defect of a structural character, against the owner of the premises.
The appellant was the tenant of a local authority house of which the respondents were the owners and landlords. She applied to the sheriff for an order requiring the respondents to abate the nuisance described in the writ. She averred that the premises suffered from condensation, dampness and mould, such that their state was prejudicial to her health and that of her child; and that even if their state was not prejudicial to health, it constituted a nuisance in that it interfered with the comfort of herself and her family. The house had cavity walls, whose insulation values complied with standards required by building regulations at the time of construction, but not current ones. The heating consisted of one electric fire and power points, which could be used for additional electric heating appliances. The appellant could not afford to heat the house to comfortable standards. After proof, the sheriff held that the appellant had failed to prove that the state of the house was prejudicial to her health, and she had failed to prove that it constituted a statutory nuisance; that if it had been a statutory nuisance the respondents would not have been the persons responsible for it, nor would the nuisance have arisen from any defect of a structural character. The sheriff assoilzied the respondents. The appellant appealed to the sheriff principal who refused the appeal. The appellant appealed to the Court of Session.
Held (1) that the test to be applied to determine whether the state of the premises was prejudicial to health was an objective one, and did not require proof of actual injury to the appellant, and that the evidence that there was severe dampness and mould in the house, together with the medical evidence as to the risks to health, was sufficient to establish prejudice to health (pp 308E, 316I317E, 320I321D); (2) (diss Lord Cameron) that it was not necessary that there be any interference from a third party to constitute a statutory nuisance in terms of sec 79(1)(a), and that the state of the premises as disclosed by the evidence was plus quam tolerabile and did amount to a statutory nuisance (pp 311D312E, 318E319B, 321H322D); (3) (diss Lady Paton) that the respondents had provided heating facilities, which if sufficiently used, would have obviated the problem, and that the respondents were therefore not the person
responsible for the nuisance (308F309B, 319H320C, 322H324A); (4) (diss Lady Paton) that the nuisance did not arise from any defect of a structural character in terms of sec 82(4)(b), since the construction method and lack of insulation which rendered the house vulnerable to dampness could not be so characterized (305H306C, 320F); and sheriff's interlocutor amended and appeal refusedJudith Robb brought a summary application in the sheriffdom of Tayside, Central and Fife at Dundee for an order requiring the defenders to abate the nuisance she averred was caused by dampness in the house of which she was the tenant. The defenders were Dundee City Council, the landlords and owners of the property.
Proof was heard before the sheriff on 8 to 11 June, 10 to 14 August and 17 and 18 September 1998. On 14 December 1998 the sheriff assoilzied the defenders.
The pursuer appealed to the sheriff principal. On 21 December 1999 the sheriff principal (Wheatley) refused the appeal.
The pursuer appealed to the Court of Session.
Cases referred to:
Anderson v City of Dundee Council 2000 SLT (Sh Ct) 134
Betts v Penge Urban District CouncilELR [1942] 2 KB 154
Birmingham City Council v OakleyELR 2001 AC 617
Birmingham District Council v Kelly (1985) 17 HLR 572
Birmingham District Council v McMahon (1987) 19 HLR 452
Carr v Hackney London Borough Council (1996) 28 HLR 747
Coventry City Council v CartwrightWLR (1975) 1 WLR 845
Cunningham v Birmingham City Council (1998) 30 HLR 158
Dover District Council v Farrar (1982) 2 HLR 32
Fleming v Hislop 1882 10R 426; (1886) 13R (HL) 43
Fraser's Trustees v Cran (1877) 4R 794; SR 290
Godfrey v ConwyUNK [2001] Env 5 R 38
Greater London Council v London Borough of Tower Hamlets (1983) 15 HLR 54
Hislop v FlemingUNK (1882) 10 R 426, (1886) 13 R (HL) 43
Hart v Taylor (1827) 4 Mur 310
Kennedy v GlenbelleSC 1996 SC 95
London Borough of Southwark v Ince (1989) 21 HLR 504
London Borough of Southwark v Simpson [1999] Env LR 553
Meri Mate Ltd v City of Dundee District CouncilUNK 1994 SCLR 960
National Coal Board v NeathUNK [1976] 2 All ER 478
National Coal Board v ThorneWLR [1976] 1 WLR 543
Nottingham City District Council v NewtonWLR [1974] 1 WLR 923
Pearhouse v Birmingham City Council [1999] Env LR 536
Pike v Sefton MBC [2000] Env LR D31
Quigley v Liverpool Housing Trust [2000] Env LR D9
R v ParlbyELR (1889) LR 22 QBD 520
Renfrew District Council v McGourlick 1987 SLT 538; 1988 SLT 127
RHM Bakeries v Strathclyde Regional CouncilSC 1985 SC (HL) 17
Salford City Council v McNallyELR [1976] AC 379
Upper District Committee of the County of Renfrew v Wardrop's Trustee 1927 SLT (Sh Ct) 68
Warner v London Borough of Lambeth (1984) 15 HLR 42
Watt v JamiesonSC 1954 SC 56
Textbooks, etc referred to:
Bell, Principles, para 974
Broun, The Law of Nuisance in Scotland (1891), pp1 to 3,8,9, and 139
Oxford English Dictionary
The Cause called before an Extra Division, comprising Lord Cameron of Lochbroom, Lord Johnston and Lady Paton for a hearing on the summar roll on 18 and 19 December 2001.
At advising, on 13 February 2002
LORD CAMERONof Lochbroom[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 sec 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 sec 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 sec 79 of the 1990 Act as amended in accordance with paras 2 to 7 of sched 17 to the Environment Act 1995 which extended pt 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 sec 79(1) begins as follows: Subject to subsections (1A) to (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 subsec (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 sec 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...
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