Tinkler v The Board of Works for the Wandsworth District

JDEQ. &J. 281. TINKLER!1. WANDSWOETH DIST. BOARD OF WORKS 989 [261] tinkler v. the board of works for the wandsworth district. Before the Lords Justices. Jan. 26, 27, March 12, 1858. [S. C. 1 Giff. 412 ; 27 L. J. Ch. 342. See Ashwmth Hebden Bridge Local Board, 1877, 47 L. J. Ch 199 ; Vestry of St. James, &c., v. Feary, 1890, 24 Q. B. D. 711.] A District Board of Works acting under the Metropolis Local Management Act, 18 & 19 Viet. c. 120, made an ex parts order on the Plaintiff to turn into water-closets the privies attached to certain cottages belonging to him, and, on his failing to do so, they proceeded to enter upon the premises for the purpose of doing it themselves. The order appeared to have been made, not with regard to the state of this particular property, but in consequence of a previous determination to substitute water-closets for privies throughout the district. Held, that the Board were exceeding their statutory powers and ought to be restrained from entering on the Plaintiff's property for the purpose of making the alteration. Per the Lord Justice Turner. Assuming that the Act authorizes a Board to require such an alteration as the above in particular cases, still the Board is bound to exercise its discretion in each particular case, and is acting ultra vires, if, without exercising such discretion, it proceeds to make the alteration in pursuance of a determination to require it to be made in all cases. The question in this case was as to the right of the Defendants the Wandsworth Board of Works to enter npon property belonging to the Plaintiff, for the purpose of changing into water-closets certain privies attached to the cottages on the land, and alleged by the Defendants to be nuisances. The following statement of the facts of the case is taken almost entirely from the judgment of the Lord Justice Turner. The Plaintiff held under a lease for lives a piece of land situate within a district of the Wandsworth Board of Works, and upon which there stood a block of thirty-nine cottages called Ford's Buildings. On the 27th of January 1857 he was served by the Defendants the Wandsworth District Board of Works with the following notice : - "Metropolis Local Management Act, 18 & 19 Viet. c. 120; Nuisances Removal and Diseases Prevention Act, 18 & 19 Viet. c. 121. The Board of Works for [262] the Wandsworth District. Offices, Bolingbroke House, Wandsworth Common. " Whereas at a meeting of the Board of Works for the Wandsworth District, holden on the 24th day of December 1856, it was duly made to appear to the said Board of Worka, that the houses and premises situate and being as hereinafter mentioned require certain works to be executed thereto, which are more particularly set forth in the schedule hereunto annexed, and which works are requisite and necessary for the removal and abatement of the nuisance now existing, and which is injurious to the health of the persons dwelling in or near unto the said houses and premises ; and whereas it was duly ordered by the said Board of Works, that notice in writing be given to the owner or occupier of the said houses and premises, requiring him to do, perform and execute the works, matters and things hereinafter mentioned or enumerated, and that the said owner or occupier do commence the execution of the said works, matters and things on or before the day mentioned in the said schedule, I am directed to inform you that unless the said works are commenced on or before the day mentioned in the said schedule, and forthwith completed to the satisfaction of the said Board, that compulsory proceedings will be taken under the above-mentioned Acts of Parliament for executing the said works, and for the recovery from y ou of all coats and expenses incurred thereby. " Dated this 27th day of January 1857. " By order of the Board of Works for the Wandsworth District. "samuel steel, Inspector of Nuisances to the Board of Worka for the Wandsworth District." 990 TINKLER V. WANDSWOBTH DI8T. BOARD OF WORKS SBBO,*J.28S. [263] The schedule annexed to this notice was in these terms:- "Nuisances now existing upon the said houses or premises:- " Cesspool overflowing and no dust bins. " Works required to be done for the removal and abatement of the nuisance :- " Cesspools to be emptied and filled up. " Drains from privies and sinks constructed. " Privies to be panned, trapped, and water-supply apparatus provided. " Cisterns to be provided. "Lime-white where necessary. " Pavements to be made good. " Dust bins to be provided." In consequence of this notice the Plaintiff executed some of the works mentioned in the schedule, but he did not pan or trap the privies or provide water-supply apparatus, or so far as appeared, cisterns; in other words, he did not convert the privies into water-closets. It was not clear upon the evidence whether ha completed all the other works required by the notice : there was a dispute as to whether he completed the dust bins. No order from Justices of the Peace had been obtained by the Defendants under 18 & 19 Viet, o, 121. The privies not having been converted into water-closets, the Defendants on the 8th of June 1857 served upon the Plaintiff the following notice :- "Metropolis Local Management Act, 18 & 19 Viet. c. 120; the Nuisances Removal and Diseases Prevention Act, 18 & 19 Viet. c. 121. The Board of Works for the Wandsworth District. Offices, Bolingbroke House, Wandsworth Common. " No. 64. To Mr. Bacon of Ford's Buildings. [064] "Notice having been served upon you by order of the Board of Works for the Wandsworth District to do certain works upon the premises situate Ford's Buildings, York Road, in the parish of Battersea, and the time mentioned in such notice having expired without such works having been completed, the Board of Works for the Wandsworth District hereby give you notice, that their workmen, or the workmen of their contractor, will enter upon the said premises to commence and forthwith execute the said works on or after the expiration of seven days from the service hereof, and that the Board will then adopt the course which the law provides for enforcing the payment of all costs and expenses thereby incurred. "Dated the 8th day of June 1857. " By order of the Board of Works for the Wandsworth District. " samuel steel, Inspector of Nuisances for the parish of Battersea, No. 3 Somerset Terrace, Church Road. " Notice of your intention to commence these works must be given in writing at least twenty-four hours before commencing." The Plaintiff, upon the receipt of this second notice, placed the matter in the hands of his solicitors, who immediately wrote to the Defendants to the effect that the Plaintiff considered that he had done all that the premises required, or the law rendered imperative; but the Defendants in reply insisted that the terms of the notice should be strictly complied with, and on the 7th of November they entered on the premises, commenced removing the earth at the rear of one of the cottages, and deposited a number of pans, and a quantity of piping, in some of the cottage gardens, and on the 9th of November [265] their workmen commenced the works necessary for converting the privies into water-closets. The Plaintiff then, on the llth of November 1857, filed the bill in this cause, praying, that the Defendants, and all persons acting under their orders or directions, might be restrained by the injunction of the Court from entering or digging in or upon the premises, or any part thereof, or removing the earth therefrom, and also from interfering with, pulling down or converting the privies attached to the cottages, or any of them, into water-closets, and that the Defendants might pay the Plaintiff his costs of the suit. It was alleged by the fifth paragraph of the bill, that in consequence of the IDBO.ftJ.2M. TINKLER V. WANDSWORTH DIST. BOARD OF WORKS 991 notice of January 1857, the Plaintiff, upon the 4th of February 1857, went to the Defendants, and stated to them that no inconvenience, unwholesomeness or nuiaance arose from the privies, that the occupiers of the cottages were satisfied with them, and that the conversion of them into water-closets would, in all probability, occasion unpleasant smells and be found inconvenient, and be far worse than the privies ; that water-closets would be perpetually getting out of order, and, moreover, there was no sewer for the drains required by the notice to fall into; that the Defendants, by their chairman, then stated to the Plaintiff, that it was their intention to do away with all privies whatsoever, and that they...