Salford City Council v McNally
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Simon of Glaisdale,Lord Cross of Chelsea,Lord Edmund-Davies,Lord Fraser of Tullybelton |
| Judgment Date | 24 June 1975 |
| Judgment citation (vLex) | [1975] UKHL J0624-3 |
| Date | 24 June 1975 |
| Court | House of Lords |
[1975] UKHL J0624-3
House of Lords
Lord Wilberforce
Lord Simon of Glaisdale
Lord Cross of Chelsea
Lord Edmund-Davies
Lord Fraser of Tullybelton
Upon Report from the Appellate Committee, to whom was referred the Cause Council of the City of from a Divisional Court of the Queen's Bench Division), That the Committee had heard Counsel, as well on Wednesday the 30th day of April last, as on Thursday the 1st and Monday the 5th, days of May last, upon the Petition and Appeal of the Council of the City of Salford, Civic Centre, Swinton in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 19th of December, 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Brenda McNally (Assisted Person) lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 19th day of December 1974, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the Respondent in respect of the said Appeal be taxed in accordance with the provisions of the Second Schedule to the Legal Aid Act 1974, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
Mrs. McNally, the respondent to this appeal, is the occupier of an out-of-date house in Salford at No. 20, Johnson Street. The appellants, the Council of the City of Salford, have become the owners of the property through a compulsory purchase order. They acquired it, together with 406 other houses, as part of a planned clearance area, their intention being to demolish all these houses and to rebuild. They could exercise this power if satisfied that the houses in the area are "unfit for human habitation" and that the most satisfactory method of dealing with these conditions is to demolish all buildings in the area (Housing Act 1957, section 42). However, as the Housing legislation allows them to do, and as was obviously necessary in view of the large number of dwellings involved, the Council decided to defer demolition for a period of seven years. They could only exercise this power if they were of the opinion that the houses were or could be rendered capable of providing accommodation of a standard "which is adequate for the time being" (Housing Act 1957, section 48). Thus Mrs. McNally is living in a house which is "unfit for human habitation" but which the Council considers is, or could be rendered, adequate accommodation for the time being.
The present proceedings arise, not under the Housing Acts, but under the Public Health Act 1936. Mrs. McNally, as a person aggrieved, made a complaint against the Council, as owners of the house, of a statutory nuisance. The definition of a statutory nuisance includes—
"any premises in such a state as to be prejudicial to health or a nuisance"
(section 92(1) ( a)). Mrs. McNally filled up a form, apparently supplied by some organisation, on which she ticked off various suggested defects and the stipendiary magistrate, after an inspection, found that there was rising damp and perished plaster, that the rear door was rotted and unhinged, that there was severe dampness in the first floor, and that the water closet pipe was cracked and insanitary. His finding continued that—
"by reason of these defects, the premises were in such a state as to be prejudicial to health or a nuisance"
and therefore a statutory nuisance. He proceeded to make an order requiring the Council to abate the statutory nuisance within two months.
On appeal by case stated, the Divisional Court upheld the magistrate's decision, but stated the following question for consideration by this House:
"Whether it is a lawful defence for a housing authority in proceedings brought against it by virtue of either section 93 or section 99 of the Public Health Act 1936 to prove that the house, the subject of the complaint, is one occupied by reason of section 48 of the Housing Act 1957 and maintained to the standard under section 48."
My Lords, the answer to this question, in my opinion, is manifestly in the negative. It is only necessary to perceive the respective and different purposes of the Housing Acts and of the Public Health Act 1936 to see that they are dealing with different matters and setting different standards, which may in any individual case have to be separately met. The Housing Act 1957, in that part of it which provides for clearance and redevelopment, is concerned with fitness for human habitation. This is a technical expression, to which the Act supplies its interpretation in section 4(1)( c) through a list of specific matters. The subsection states:
"In determining for any of the purposes of this Act whether a house is unfit for human habitation, regard shall be had to its condition in respect of the following matters, that is to say—
( a) repair;
( b) stability;
( c) freedom from damp;
( d) natural lighting;
( e) ventilation;
( f) water supply;
( g) drainage and sanitary conveniences;
( h) facilities for storage, preparation and cooking of food and for the disposal of waste water;
and the house shall be deemed to be unfit for human habitation if and only if it is so far defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition."
The Public Health Act 1936 on the other hand, is concerned with the general concepts "prejudicial to health" and "nuisance"; the former being defined as "injurious, or likely to cause injury to, health". And I do not doubt that the persons whose health is here in question may include occupiers of the house as well as members of the public. But it must be obvious that a house may well be "unfit for human habitation" in the statutory sense without being either "prejudicial to health" or a "nuisance" and consequentially that the Housing Act 1957 when it authorises a house which is unfit for human habitation to be temporarily occupied as "adequate for the time being" is not lending statutory authority to the use of a house which is prejudicial to health. In view, indeed, of the fact that houses may have to be used for accommodation, adequate for the time being, for considerable periods (in the present case seven years), it would be surprising if a local authority, in permitting such use, were held to be dispensed altogether for this period from the Public Health requirements.
There is therefore, in my opinion, no difficulty in reconciling the two legislative codes or in operating them side by side. Much of the apparent difficulty of so doing has been created by a confusion of terms. Thus, the judgment of the Divisional Court refers to the purpose of the Public Health Act 1936 as being—
"to prevent people from living in houses which are not fit for human habitation".
This may be confusing since, while a house which is by its condition "prejuducial to health" is likely to be "unfit for human habitation", the converse is not necessarily the case. In dealing with each Act it is better to use its own terminology. A similar confusion occurs in some of the cases through the use of the words "personal comfort". These words are appropriate enough in the context of what is a "nuisance" for the purposes of the Public Health Act (see as to this the clear judgment of Stephen J. in Bishop Auckland Local Board v. Bishop Auckland Iron and Steel Co. Ltd. 10 Q.B.D. 138), but they are quite inappropriate in relation to the other limb "prejudicial to health". Health is not the same as comfort and interference with the latter does not bring a case within the "health" limb of the Public Health Act. In my opinion Betts v. Penge U.D.C. [1942] 2 K.B. 154 is guilty of this confusion and was wrongly decided. It was simply a case of what is now called "harassment", and not, in my view, under the Act at all. I express no opinion upon the case of Coventry City Council v. Cartwright [1975] 2 All E.R. 99, which was reported after argument had been closed in the present case.
In conclusion I would only add a few words as to the task of magistrates dealing with complaints under the Public Health Act 1936. They should, in the first place, keep close to the wording of the Act and ask themselves, after they have found the condition of the premises, the questions (i) is the state of the premises such as to be injurious or likely to cause injury to health, or, (ii) is it a nuisance? To consider these questions in terms of fitness or unfitness for human habitation is undesirable and is likely to confuse. And the magistrate should find specifically under which limb the case falls. If he answers either question in the affirmative he must make an abatement order, and he should, if possible, make this as specific as he can, rather than order in general terms to abate the statutory nuisance. That may lead to difficulties in cases like the present. In making the order the magistrate should take into account the circumstances in which the property is being occupied including, of course, the likely duration of the occupation. The shorter the period before probable...
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