Sandwell Metropolitan Borough Council v Bujok
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Lowry |
| Judgment Date | 11 October 1990 |
| Judgment citation (vLex) | [1990] UKHL J1011-1 |
| Date | 11 October 1990 |
| Court | House of Lords |
[1990] UKHL J1011-1
House of Lords
Lord Keith of Kinkel
Lord Templeman
Lord Griffiths
Lord Ackner
Lord Lowry
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Griffiths. I agree with it, and for the reasons he gives would dismiss the appeal, while holding that the magistrates were not required to award the costs of the proceedings to the appellant.
My Lords,
For the reasons to be given by my noble and learned friend Lord Griffiths, I agree that an aggrieved person is not required to give warning of his intention to bring proceedings complaining of a statutory nuisance. I agree also that the magistrates are not required to award the costs of such proceedings to the appellant.
My Lords,
The first question raised by this appeal from the Divisional Court is whether under section 99 of the Public Health Act 1936 an individual may commence proceedings before a magistrates' court in respect of a statutory nuisance without first requiring the proposed defendant to abate the nuisance and allowing him a reasonable time to do so. The second question is whether under section 94(3) of the Act the magistrates are compelled to award costs to a complainant if at the time of his complaint a statutory nuisance existed, even though the defendant may have been unaware of the nuisance until he received the summons and has taken steps to abate the nuisance by the time of the hearing before the magistrates.
The relevant facts are found in the judgment of Hutchison J. (1989) 22 H.L.R. 87, 88-89:
"The material facts, which I take from the case stated by the justices, are as follows:
1. Mrs. Bujok and her family live in a house, 100, Slatch House Road, Warley, as tenants of the council.
2. Among the written terms of the tenancy is an obligation on the part of the tenant to give immediate notice to the Director of Housing of any defect or damage to the premises: and one entitling the council by their officers, etc., and after giving reasonable notice, to enter and inspect the state of repair, etc., of the premises and to execute any repairs therein.
3. On 26 September 1988, Mrs. Bujok (the respondent) laid an information against the council alleging the existence and continuance on the premises of a statutory nuisance as defined by section 92(1)( a) of the Public Health Act 1936. The information alleged that the council, being owners of the premises, were the persons by whose act, default or sufferance that statutory nuisance arose and continued, and sought a nuisance order pursuant to section 99 of the same Act.
4. Mrs. Bujok had not, prior to the laying of the information, served an abatement notice upon the council or informed them of the alleged defects in the premises. It is implicit in the justices' findings that at the date of the information the council were unaware of the defective state of the premises.
5. The information was served by post, the letter of 28 September 1988, which accompanied it enclosing also a copy of an inspection report by the Sandwell Housing Aid Centre recording the results of an inspection on 12 September 1988.
6. It will be apparent therefore that what happened was that, having had the premises inspected on 12 September and received a report about their condition, Mrs. Bujok (who was of course being advised at the time) did not take any steps to inform the council of the condition of the premises or the nature of her complaints but on 26 September laid the information which, with the report enclosed with it, constituted the first the council knew of the alleged statutory nuisance.
The justices state the following question for the opinion of this court:
'Should the tenant be required to ensure that the council had been made aware of the state of the property prior to laying an information alleging a statutory nuisance as defined by section 92(1)( a) of the Public Health Act 1936 as under section 93 of the said Act the tenant must prove that the statutory nuisance has arisen as a result of the council's act, default or sufferance?'
The justices, after hearing argument and being referred to authority, had given a negative answer to that question. Mr. Cherryman Q.C. on behalf of the council contends that they were wrong."
The Divisional Court upheld the judgment of the magistrates following previous decisions of the Divisional Court which had decided that a private individual could bring proceedings without first serving an abatement notice, see Reg. v. Newham East Justices, Ex parte Hunt [1976] 1 W.L.R. 420 and Warner v. Lambeth London Borough Council (1984) 15 H.L.R. 45. And on the authority of the decision of the Divisional Court in Coventry City Council v. Doyle [1981] 1 W.L.R. 1325, that the magistrates were compelled to award costs against the local authority. The council now challenge the correctness of these decisions of the Divisional Court.
Part III of the Public Health Act 1936 places a duty upon a local authority to detect statutory nuisances within its district and provides a procedure by which the local authority is required to deal with them. In broad outline this procedure requires a local authority to serve an abatement notice on the person responsible for the nuisance requiring him to abate it. If that person fails to abate the nuisance then the local authority makes a complaint to the magistrates who issue a summons requiring the person served with the abatement notice to appear before a court of summary jurisdiction. If at the time the complaint is heard by the magistrates the nuisance has not been abated, the magistrates will make a nuisance order requiring the defendant to abate the nuisance and may also impose a fine. Thereafter if the defendant fails to comply with the order there is provision for further fines to be imposed upon him and for the local authority to carry out the necessary work and recover the costs from the defendant.
Under this procedure no one will be taken to court by a local authority and accused of being responsible for a statutory nuisance unless he has first been given notice of the statutory nuisance and given an opportunity to abate it. It is only if he fails to act on the abatement notice that the sanction of the law will be used against him. This seems to be an eminently sensible procedure and it is the submission of the council that upon its true construction the Act of 1936 requires an individual to follow the same procedure.
Again I will take from the judgment of Hutchison J. the citation of the relevant statutory provisions, 22 H.L.R. 87, 89–90:
"Section 91 [provides]:
'It shall be the duty of every local authority to cause their district to be inspected from time to time for the detection of matters requiring to be dealt with under the provisions of the Part of this Act as being statutory nuisances within the meaning of the next succeeding section.
92(1) Without prejudice to the exercise by a local authority of any other powers vested in them by or under this Act, the following matters … are in this Part of this Act referred to as "statutory nuisances," that is to say: ( a) any premises in such a state as to be prejudicial to health or a nuisance …
93. Where a local authority are satisfied of the existence of a statutory nuisance, they shall serve a notice (hereafter in this Act referred to as "an abatement notice") on the person by whose act, default or sufferance the nuisance arises or continues, or, if that person cannot be found, on the owner or occupier of the premises on which the nuisance arises, requiring him to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose: provided that — ( a) where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises …
94(1) If the person on whom an abatement notice has been served makes default in complying with any of the requirements of the notice … the authority shall cause a complaint to be made to a justice of the peace, and the justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction. (2) If on the hearing of the complaint it is proved that the alleged nuisance exists … then, subject to the provisions of subsections (4) and (5) of this section the court shall make an order (hereafter in this Act referred to as "a nuisance order") … ( a) requiring the defendant to comply with all or any of the requirements of the abatement notice, or otherwise to abate the nuisance within a time specified in the order, and to execute any works necessary for that purpose … (3) Where on the hearing of a complaint under this section it is proved that the alleged nuisance existed at the date of the service of the abatement notice and that at the date of the making of the complaint it … still existed … then, whether or not at the date of the hearing it still exists … the court shall order the defendant...
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