Birmingham City Council v. Oakley [2000] UKHL 59 (29 November 2000)

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The Act requires a local authority to investigate complaints of a statutory nuisance and itself to inspect premises in its area; it is empowered to serve an abatement notice, a failure to comply with which is an offence. In addition, by Section 82, a person who is aggrieved by the existence of a statutory nuisance may bring a complaint before a magistrates' court which, if the nuisance exists, is to make an order requiring the defendants to abate the nuisance and "to execute any works necessary for that purpose"; it may further or alternatively prohibit a recurrence of the nuisance and require the carrying out of any works to prevent the recurrence. To make the order is obligatory though what is ordered to be done is discretionary.

On 18 May 1996 Mr Oakley preferred an information that the appellant had failed to abate a statutory nuisance at 40 Hunslett Road, Quinton, Birmingham which is owned by the appellant and of which he was a tenant.

The magistrates heard the case on five different days. They found that the appellant and his wife with three children aged 18, 9 and 4 years respectively and a grandson of 17 months had lived in the premises for 3 years, though it seems that they no longer do so. The ground floor of the house included a bathroom with a washbasin next to a kitchen which had a sink. On the side of the kitchen opposite the bathroom was a door which led into a lavatory. There was no washbasin in the lavatory and no room to put one. Anyone using the lavatory who wanted to wash his hands would have to do so in the kitchen sink or he would have to go through the kitchen to the bathroom.

The magistrates ordered that the lavatory be moved into the bathroom with an extractor fan and that the door into the bathroom be re-sited.

On an appeal by way of case stated the magistrates asked "(a) Whether we were correct to find a statutory nuisance existed at [the house] by reason of the absence of a hand basin within the WC compartment" and if so whether the Justices were correct to hold that the Council was responsible and that the nuisance arose from a structural defect. They also asked whether their findings were justified on the evidence.

The Divisional Court dismissed the appeal. Simon Brown L.J. (with whom Astill J. agreed) concluded "not without hesitation" that

The Divisional Court dismissed the appeal but certified that a question of general public importance was involved, namely

The facts are simple and homely but the question is important to the individual family and to the local authority. Your Lordships have been told that there are throughout the country, tens of thousands of homes (and 20,000 in the appellant's area alone) where the separate lavatory has no washbasin and that the decision of the justices and the Divisional Court will cause great financial problems and interfere with the planned upgrading of older houses. I do not attach too much importance to the number as it stands. Your Lordships are only concerned with a case where the access to washing facilities is in the kitchen or through the kitchen. The absence of a washbasin in a lavatory in other parts of the house—a separate lavatory without a basin next to a bathroom or opposite to a bathroom on a bedroom floor—does not necessarily provide the same hygienic problems. Moreover the immediate problem for local authorities, great as it is, need not be as great as is suggested if regard is had to the judgment of Lord Widgery C.J. in Nottingham City District Council v. Newton [1974] 1WLR 923 at pages 929-930 (as approved by Lord Wilberforce in Salford City Council v. McNally [1976] AC 379 at pages 389-390 where he stressed the discretion of the justices in what and when they ordered work to be done and the need to exercise common sense.

The arrangements found by the magistrates are by modern standards plainly unsatisfactory. The absence of a washbasin in the lavatory means that children (and others) are less likely to wash their hands. The need to wash in the kitchen sink or to go through a place where food is being prepared, to find a washbasin, carries obvious hygienic risks. It is surprising, not that the Building Regulations of 1991 made the provisions of a washbasin obligatory in new houses, but that it was not done earlier. None of this, however, resolves the present question. Although there can be no doubt that if "the state" of the premises includes the arrangement in this house, the magistrates were fully entitled to the opinion they expressed and in particular to their conclusion, that the arrangements were prejudicial to health. Moreover if there was a statutory nuisance it was clearly caused by the appellant Council, and not by the respondent, as the magistrates found. The question, and I have found it difficult, is whether the arrangements here fall within the words the state of the premises.

Taken literally, it can be said that "the state of the premises" is capable of a broad meaning to include a consideration of the layout, even unavoidable use within the layout. But a narrower meaning is equally possible. One must therefore look at the purpose of the legislation and for that to consider the history of the legislation and the context of these words in the Act of 1990 together with previous judicial interpretations.

The story begins with the temporary Act of 1846 (9 and 10 Vict. c 96) "For the more speedy removal of certain nuisances". Prosecution could follow a certificate by two doctors

and that "the same is likely to be prejudicial to the health of the occupiers [or neighbours]." The Nuisance Removal and Diseases Prevention Act 1848 (11 and 12 Vict. c 123) was concerned inter alia with "any dwelling house……….[which] is in such a filthy and unwholesome condition as to be a nuisance or injurious to the health of any person".

It seems to me clear that the facts of the present case would not have fallen within either the 1846 or the 1848 Acts.

But the legislation continued to develop. In the Nuisances Removal Act 1855 (18 and 19 Vict. c 121) as repeated in the Public Health Act 1875 (38 and 39 Vict. c 55) nuisances were defined as including "any premises in such a state as to be a nuisance or injurious to health". There is thus a change from "condition" in 1848 to "state" in 1855 and 1875. I accept that "state" may be wider than "condition" in this context. It is also to be noted that in the Acts of 1846 and 1848 the premises had to be in such a "filthy and unwholesome condition" as to be injurious to health. The 1855 and 1875 Acts are more general. For there to be an offence, the premises have to be simply "in such a state" as to be injurious to health.

Finally, in this particular legislation, the Public Health Act 1936, like the 1990 Act, defined statutory nuisances in Section 92(1)(a) as including "any premises in such a state as to be prejudicial to health or a nuisance" and defined "prejudicial to health" in Section 343(1) of the 1936 Act as "injurious, or likely to cause injury, to health", the latter again being an extension of previous legislation.

In considering the meaning of the relevant words in the 1990 Act, the respondent's case is in my view not precluded by the fact that other regulatory powers exist—e.g. Section 604 of the Housing Act 1985 which provides that a house is not fit for habitation if it does not have a "suitably located water closet"; Section 64(1) of the Building Act 1984 which empowers a local authority to require a closet to be provided if it appears that closets in the building are "in such a state as to be prejudicial to health or a nuisance and cannot without reconstruction be put into a satisfactory condition". Similarly in Section 1(1) of the Building Act 1984, the Secretary of State is empowered for the purpose inter alia of "(a) securing the health, safety, welfare and convenience of persons in or about buildings" to make regulations "with respect to the design and construction of buildings and the provision of services, fittings and equipment in or in connection with buildings". In the Building Regulations 1991 (SI 1991/2768) replacing the Building Regulations 1985 (SI 1985/1065) which came into force on 1 June 1992 in relation to the erection or extension of a building, "Part G Hygiene" in Schedule 1 provided as follows:-

These various statutory provisions are clearly dealing with the matters in dispute in the present case and they may be some indication as to the scope of the provisions of the 1990 Act, but in no way can it be said that they are conclusive that the facts of the present case cannot fall within Section 79 (1) (a). It is noted that in Salford City Council v. McNally [1976] AC 379, Lord Wilberforce distinguished between the test under the Public Health Act and the question under the Housing Act, as to whether a house was "unfit for human habitation". The two tests are not the same.

Nor does it seem to me to be in any way relevant whether the landlord is in breach of his contractual obligations to the tenant.

In The Queen v. Parlby [1889] XXII QBD 520 the Queen's Bench Division said in relation to "premises in such a state as to be a nuisance" in the 1875 Act

In Coventry City Council v. Cartwright [1975] 1WLR 845, where it was said that a pile of refuse and building waste constituted a nuisance under Section 92 (1) (c) of the 1936 Act as being "any accumulation or deposit which is prejudicial to health or a nuisance", Lord Widgery C.J. said at page 849

In Coventry City Council v. Doyle [1981] 1 WLR 1325 the Divisional Court held that a statutory nuisance could exist even if at the relevant date (the hearing before the justices) the premises were unoccupied.

In Birmingham District Council v. Kelly 17 HLR 572 the Divisional Court accepted that a statutory nuisance could exist even if there was no breach of building regulations or other statutory requirements. There each of the flats was found to be seriously affected by mould growth. The Court accepted that mould growth, because of inadequate heating, could constitute a statutory nuisance though it referred to Dover District Council v. Farrar [1980] 2HLR 32 where a claim failed because the tenant did not make adequate use of the heating system so as to prevent condensation which caused the mould.

In London Borough of Southwark v. Ince [1989] 21 HLR 504 the Divisional Court accepted that a failure properly to insulate against noise made the premises "in such a state as to be prejudicial to health" because of the entry of noise. Saville J. said that premises may be in such a state as to be prejudicial to health "for a whole variety of external factors, be they weather, noise, the incursion of sewage, or indeed anything else". A claim under the Public Health Act 1936 was still maintainable even if others had other legislative powers and duties to deal with the matter.

Turning to the recent cases in Regina v. Bristol City Council, Ex parte Everett [1998] 1WLR 92 and [1999] 1WLR 1170 Richards J. and the Court of Appeal held that in the light of earlier statutory provisions in identical terms, the danger of accidental or physical injury resulting from a steep staircase did not fall within the provision of Section 79 (1) (a) as being injurious to health. Richards J. said at page 102

A case said to be near to the present one is ex parte Saunders (1882/3) 3 XI QBD 191. There "defective water closet" existed in the centre of a house. The sanitary authority under Section 94 of the 1875 Act required the nuisance to be abated and for that purpose required the owner to remove the closet from the centre of the house and to place it near the outer wall where there might be efficient ventilation; the soil pipe, drains and flushing arrangements were to be altered. Some of the work was done but the closet was left where it was and the soil pipe was not fixed on the outer wall. The justices found that although the nuisance had abated it was likely to recur and they ordered the water closet, soil pipe and drains to be moved and they further ordered that efficient ventilation be provided. The question in issue was not as to whether the premises were in such a state as to be a nuisance but whether the justices had power to order the particular works to be done. The Court held that the justices had such power, distinguishing re Whitchurch 6QBD 545 where the justices had not merely required the nuisance to be abated but had also required a different type of closet to be built which it was held went beyond their powers.

For my part I do not think that Saunders really assists the respondent. The nuisance clearly came from the smells and risks to health existing in the premises due to the defective drains, the lack of ventilation and the defective flushing facilities. There was no nuisance when the justices heard the case (i.e. they did not base their decision on the layout) but they thought that the nuisance (i.e. the smells and risk of disease) would recur and that the right way to prevent this was to move the closet.

The appellant relies on the distinction in Section 268(2)(a) of the 1990 Act between "state" and "use" in Section 268(2)(b) in relation to tents or vans used for human habitation. I do not get any assistance from that Section which is dealing with a very special situation.

Section 79(1) of the 1990 Act lists other matters which constitute "statutory nuisances"—smoke, fumes or gases emitted from premises, dust or effluvia from industrial premises, any accumulation or deposit, noise emitted from premises or caused by a vehicle in the street and any animal kept in a place, in each case so long as they could be shown to be "prejudicial to health or a nuisance".

If in this case "the state of the premises" could include the arrangement of the rooms or the lack of a washbasin in the lavatory it would be nothing to the point that in 1846, perhaps even in 1920 or 1940 most people would not have regarded this as being prejudicial to health. Standards and attitudes change and the contemporary insistence on "now wash your hands" would make the position clear as the justices found. The question is whether it is right to interpret the phrase in the way proposed on behalf of Mr Oakley.

I am influenced in the first place by the fact that the earlier statutes were dealing with a "filthy and unwholesome condition" of a house or the collection of noxious matter or a foul or offensive drain or privy. All of these were in themselves prejudicial to health because of germs or smells and the risk of disease. When the words "in such a condition" or "such a state" as to be prejudicial to health were added they are to be read as seeking to achieve the same objective. They are directed to the presence in the house of some feature which in itself is prejudicial to health in that it is a source of possible infection or disease or illness such as dampness, mould, dirt or evil-smelling accumulations or the presence of rats. The state of the house must in itself have been prejudicial to health. This it seems to me is what the Divisional Court was saying in Reg. v. Parlby (supra) and in Ince (supra) Woolf L.J. said "the important feature to note with regard to Section 92(1)(a) is that it is the premises which have to be in such a state as to be prejudicial to health or a nuisance".

In the more recent legislation, the premises are not limited to dwelling houses but the matters listed in Section 79 of the 1990 Act are still in themselves capable of being prejudicial to health—smoke or gases, dust or an accumulation or deposit. Subsection (1)(a) of course is not limited to the specific items listed in the other parts of the subsection but the other items do give an indication of the essential feature of the statutory nuisance which is being dealt with. There must be a factor which in itself is prejudicial to health. I do not think that the arrangement of the rooms otherwise not in themselves insanitary so as to be prejudicial to health falls within Section 79(1) (a).

There is in the present case nothing wrong with the lavatory nor is any defect in the drain suggested; there is no defect in the handwash basin. There is thus nothing in the premises themselves which is prejudicial to health. It is not sufficient to render the house itself "in such a state" as to be prejudicial to health that the lavatory and the washbasin are in separate rooms or that to get from one to the other it is necessary to pass through the kitchen where food is prepared. The prejudice to health results from the failure to wash hands or the use of the sink or the basin after access through the kitchen. Undesirable though this arrangement is, it does not seem to me that it is permissible to give an extended meaning to the words in Section 79(1)(a) however socially or hygienically desirable this might be. By reference to the building regulations there is much force in Mr Oakley's criticism of the arrangements but it is for parliament, the government or the local authority to take steps to remedy the problem and not for the courts to give an unjustified extension to words which have a different meaning and a different context. The object of Section 79 as with the earlier provisions was to provide a means for the summary removal of noxious matters. The fact that to achieve that structural alterations may have to be made does not mean that in the absence of such noxious matters the premises before the structural alterations are in such a state as to be prejudicial to health. In Birmingham District Council v. Kelly (supra) it was the mould which needed to be remedied by the provision of central heating and not the absence of central heating per se which made the state of the premises prejudicial to health. Where there is a defective drain or privy it is obvious that that in itself could constitute a statutory nuisance and render the premises in such a state as to be prejudicial to health. That is not the present case.

I have carefully studied the opinions of the majority. On balance I am not persuaded by their reasoning. Like Lord Clyde I take the view that, in the context of section 79(1)(a) of the Environmental Act 1990, the positioning of facilities, or the lack of a facility, may depending on the circumstances cause the premises to be in "such a state as to be prejudicial to health" and therefore a statutory nuisance. The appeal to Victorian social history, and legislative history going back more than a 150 years, is in my view not appropriate to the context. The Act of 1990 must be given a sensible interpretation in the modern world. The distinction between layout and state of the premises is not to be found in the statute, and it is certainly not indicated by the language of the provision or the context. It is on analysis no more than a verbal technique to cut down the generality of the wording of the modern statute. The justices were entitled to find that the premises were themselves inadequate so far as health and hygiene were concerned. Acknowledging that it is not an easy question, I prefer the broader approach of Lord Clyde to the narrow view of the majority. For the reasons Lord Clyde gives I would dismiss the appeal.

On the surface, this does not look like a very momentous case. The question is whether Mr and Mrs Oakley's landlord should have provided her with a basin in the WC. The statute which they say made it necessary to instal one is ambiguous. The language is capable of bearing such a construction. On the other hand, it is very unlikely that this was what Parliament intended. So the courts have a choice. If they say that Mr and Mrs Oakley should have had a basin, landlords of old houses and flats all over the country will have to instal them. Local authorities and housing trusts will have to incur very considerable expense. Under the surface, therefore, the case raises a question of great constitutional importance. When it comes to the expenditure of large sums of public and private money, who should make the decision? If the statute is clear, then of course Parliament has already made the decision and the courts merely enforce it. But when the statute is doubtful, should judges decide? Or should they leave the decision to democratically elected councillors or members of Parliament?

My Lords, the facts of the case are very simple. In 1996 Mr and Mrs Oakley were tenants of the Birmingham City Council. They lived with their children in a three-bedroomed house. But Mrs Oakley was dissatisfied with the kitchen and toilet facilities. Access to the bathroom was from one side of the kitchen and access to the tiny WC from the other. There was no basin in the WC. Anyone who used it had then to cross the kitchen to wash his hands in the bathroom or the kitchen sink. It was difficult to ensure that the children could not contaminate the food.

Mr Oakley made a complaint to the Birmingham Magistrates' Court alleging that the premises were in "such a state as to be prejudicial to health" and therefore a statutory nuisance within the meaning of section 79(1)(a) of the Environmental Protection Act 1990. The justices found that they were. They held that it was unacceptable in the interests of hygiene to expect a person who has used the lavatory to pass through the kitchen to wash his hands. It gave rise to a risk of cross infection. So the absence of a hand wash basin in the WC meant that the state of the premises was prejudicial to health.

If a statutory nuisance is found to exist, section 82(2) of the Act of 1990 requires that the magistrates should make an order for its abatement. The justices found that it was not possible to install a basin in the existing WC. It was not big enough. So they made an order requiring the WC to be moved into the bathroom.

The Council regarded the decision as having serious implications for its housing budget. It says that it has many other old houses in which the toilet facilities are similarly arranged. So do many other local authority and private landlords up and down the country. It appealed to the Divisional Court (Simon Brown L.J. and Astill J.). The Council argued that section 79(1)(a) applies only when the "state of the premises" is prejudicial to health. But the premises themselves were no danger to health. They were not dirty or damp or verminous. The risk of infection arose from the use of the premises by the tenants. Simon Brown L.J. rejected this distinction, which he said was a "most imperfect antithesis". The reason why the use of the premises by the tenants and their children created a risk to health was not because they were doing anything unusual but because of the absence of a wash basin in the WC. And the absence of that facility, or the fact that the bathroom and WC were laid out in such a way that a basin was not readily accessible, was properly described as the "state of the premises".

Before your Lordships Mr Straker QC presented the argument for the Council slightly differently. He challenged the premise on which the conclusion of the Divisional Court was based. He said that upon the true construction of section 79(1)(a), the term "state of the premises" did not refer to the facilities provided or their layout. It meant that the premises were in an unhealthy state. They were, to quote the adjectives of Victorian legislation on the subject, filthy, unwholesome, offensive, foul, noxious, verminous or damp. Mr Straker said that section 79(1)(a) was part of a complex structure of statutory provisions on housing and public health which went back more than 150 years. That legislation dealt separately with the state of the premises and the facilities which had to be provided. It was true that as a matter of ordinary language, the absence of a wash basin in the WC could be said to be the state of the premises. But the words had to be read against the legislative background which pointed to a narrower meaning.

The recent case of R. v. Bristol City Council, ex parte Everett [1999] 1 WLR 1170 is authority for the proposition that the language of section 79(1)(a) must be construed in the light of its legislative history. In that case the words which fell to be interpreted were "prejudicial to health". Mrs Everett complained that a steep staircase in her house was prejudicial to her health because she had an injured back and might stumble and fall. The Court of Appeal examined the legislative antecedents of section 79(1)(a) and said that although as a matter of ordinary language it could be said that something which created a risk of accidental injury was prejudicial to health, the history showed that Parliament was concerned solely with the spread of disease. Accidental injury was altogether outside the scope of the mischief at which the legislation was directed.

So Mr Straker says that the words "state of the premises" should be construed with regard to the legislative background. Section 79(1)(a) can be traced back to temporary emergency legislation rushed through Parliament in August of the unusually hot summer of 1846, when rumours of cholera and typhoid were rife. The long title of the Act (9 & 10 Vict. c. 96) said that it was to make provision for "the more speedy removal of certain nuisances". It gave power to magistrates upon complaint to make abatement orders if two medical practitioners certified the "filthy and unwholesome condition of any dwelling house or other building, or…the accumulation of any offensive or noxious matter, refuse, dung, or offal, or…the existence of any foul or offensive drain, privy, or cesspool" and that the same was "likely to be prejudicial to the health of the occupiers, or of the persons whose habitations are in the neighbourhood…" The Act of 1846 was renewed by the Nuisance Removal and Diseases Prevention Act 1848 (11 & 12 Vict. c. 123) and consolidated with amendments by the Nuisances Removal Act 1855 (18 & 19 Vict. c. 121). The Act, by section 8, defined "nuisance" as, among other things, "any premises in such a state as to be a nuisance or injurious to health." This is substantially the same as the current definition in section 79(1)(a) of the Act of 1990, the precise language of which dates back to the consolidation effected by the Public Health Act 1936.

Statutory requirements as to the toilet facilities to be provided in dwelling houses date back to the Public Health Act 1848 (11 & 12 Vict. c. 63). Section 51 provided that it should not be lawful "newly to erect any house…without a sufficient watercloset or privy and an ashpit, furnished with proper doors and coverings." Later legislation gave local authorities power to make regulations or byelaws specifying the hygiene facilities to be installed in new houses. When the house occupied by Mr and Mrs Oakley was built, there was no requirement that the WC should have a wash basin. The Building Act 1984 transferred the power to make regulations to the Secretary of State, who made the Building Regulations 1985 (S.I. No. 1065). They provided in paragraph G4 of Schedule 1 that new houses should have sufficient sanitary conveniences "in rooms separated from places where food is stored or prepared." But there was no requirement that they should have washbasins. Such a requirement was introduced for the first time by the Building Regulations 1991 (S.I. 1991 No. 2768), Schedule 1, paragraph G1. And they do not of course apply to existing houses. Section 604 of the Housing Act 1985, which contains the criteria for determining whether an existing house is fit for human habitation, does not require the provision of a wash basin in the WC.

In my opinion Mr Straker is right in saying that the statutory origins of section 79(1)(a), together with the separate statutory code dealing with the toilet facilities required to be provided in dwelling houses, throw a clear light on what Parliament meant by the premises being "in such a state as to be prejudicial to health". The section contemplates a case in which the premises as they stand present a threat to the health of the occupiers or neighbours which requires summary removal. The person responsible may be served with an abatement notice under section 80(1) and commits a criminal offence if, without reasonable excuse, he fails to comply. But the facts found by the justices in the present case are consistent with the premises being in the highest state of disinfected cleanliness. What they lack is a facility which, if used, would make it more convenient for the occupants to avoid the risk that they might transmit infection from their own urine or faeces to the food which they or other members of the household eat. In my opinion the absence of such a facility, or the layout of the premises so that it is not readily accessible, does not mean that the state of the premises is prejudicial to health. London Borough of Southwark v. Ince (1989) 21 H.L.R. 504 is not directly in point but I would wish to reserve my position on whether it was correctly decided.

Mr Supperstone QC, who appeared for the respondent, was unable to refer to any case in which the absence of some toilet or other facility which would enable the occupants to avoid a risk to health was held in itself to make the state of the premises prejudicial to health. In Birmingham District Council v. Kelly (1985) 17 H.L.R. 572 the Divisional Court upheld an abatement order which required the Council to install central heating. But the magistrates did not find that the absence of central heating was prejudicial to health. That finding was based upon the presence of mould growth which was liable to cause health problems and food poisoning. The installation of central heating was a way to remove the threat to health created by the mouldy state of the premises.

Mr Supperstone argued that section 79(1)(a) must be construed in the light of modern conditions. When it speaks of a "state . . . prejudicial to health", this does not mean a state which would have been so regarded in 1846. It requires the application of modern knowledge and standards of hygiene. The words must be construed as "always speaking" in the sense used by Lord Steyn in R. v. Ireland [1998] AC 147, 158-159. I quite agree that when a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood. The content may change but the concept remains the same. The meaning of the statutory language remains unaltered. So the concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days. The same is true of social standards. The concept of cruelty is the same today as it was when the Bill of Rights 1688 forbade the infliction of "cruell punishments". But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today.

This doctrine does not however mean that one can construe the language of an old statute to mean something conceptually different from what the contemporary evidence shows that Parliament must have intended. So, for example, in the recent case of Goodes v. East Sussex County Council [2000] 1 WLR 1356, the House decided that the statutory duty of highway authorities to "maintain" the highway did not include the removal of ice and snow. Although the word "maintain" was capable of including the removal of ice and snow and such removal might be expected by modern road users, the contemporary evidence showed that the concept of maintenance in the legislation was confined to keeping the fabric of the road in repair. To require the removal of ice and snow would not be to apply that concept in accordance with modern standards (such as requiring a metalled surface instead of gravel) but would be using the word "maintain" to express a broader concept than Parliament intended. Such a change would not be in accordance with the meaning of the statute. Likewise it seems to me in this case that an extension of the concept of "premises in such a state as to be prejudicial to health" to the absence of facilities, as such, is an illegitimate extension of the statutory meaning.

My Lords, it seems to me that the temptation to make such an extension should be resisted for much the same reasons as your Lordships in Southwark London Borough Council v. Tanner [1999] 3 WLR 939 refused to extend the common law of nuisance and quiet enjoyment so as to require landlords to instal soundproofing. Parliament has dealt expressly with the obligation to provide toilet facilities in different sections and usually in different Acts. Until 1991 it did not require a basin to be installed in the WC even in new constructions. It has never done so in respect of existing buildings. For the courts to give section 79(1)(a) an extended "modern" meaning which required suitable alterations to be made to existing houses would impose a substantial financial burden upon public and private owners and occupiers. I am entirely in favour of giving the Act of 1990 a sensible modern interpretation. But I do not think that it is either sensible or in accordance with modern notions of democracy to hold that when Parliament re-enacted language going back to the nineteenth century, it authorised the courts to impose upon local authorities and others a huge burden of capital expenditure to which the statutory language had never been held to apply. In my opinion the decision as to whether or not to take such a step should be made by the elected representatives of the people and not by the courts.

The respondent in this appeal used to live at 40 Hunslett Road, Quinton, Birmingham, along with his wife, three children and a grandchild. He and his wife were the tenants of the house and the appellant was their landlord. The ground floor of the house comprised a living room, kitchen, bathroom and WC compartment. The latter was accessed from the kitchen through an intervening ventilated space. There was no wash hand basin in the WC compartment, nor was there space to fit one there. Anyone using the WC could only wash their hands either in the kitchen sink or in the wash hand basin in the bathroom, which was situated at the opposite side of the kitchen from the WC compartment. The matter came before the local magistrates' court following on a complaint by the respondent under section 82(1) of the Environmental Protection Act 1990 that he was aggrieved by the existence of a statutory nuisance. On 24 April 1998 the Justices found that the appellant's failure to provide a wash hand basin constituted a statutory nuisance under section 79(1)(a) of the Act as being prejudicial to health. The appellant appealed unsuccessfully to the Court of Appeal.

The appeal concerns the construction of section 79(1)(a). This provision forms part of the definition of what may constitute a statutory nuisance for the purposes of the Act and reads as follows: "(a) any premises in such a state as to be prejudicial to health or a nuisance". The phrase falls into three parts. First, it is necessary to identify the premises, and to be satisfied that one is dealing with premises for the purpose of the Act. The word is defined in section 79(7). But no question arises in the present case in that regard. Secondly the state of the premises has to be considered. That is the area of dispute in the present case and I shall return to it. The third matter is whether the state is such "as to be prejudicial to health or a nuisance". By subsection (7) "prejudicial to health" is defined as meaning "injurious, or likely to cause injury, to health". The Justices found in fact that the requirement to wash hands in the kitchen sink or to cross the kitchen to wash hands in the bathroom involved in each case the risk of cross infection and that the failure to provide a wash hand basin for those using the WC was prejudicial to health. That factual finding is not challenged. Having found that there was a statutory nuisance the Justices were bound to make a nuisance order, but they had a discretion as to the terms of the order which they could make (Nottingham City District Council v. Newton [1974] 1 WLR 923). There is no challenge to the terms of the order which was made in the present case. The sole issue accordingly relates to the construction of the word "state".

The appellant's first argument was that the word "state" meant solely the actual physical condition of the premises and not the manner in which they were used. Such a distinction is hard to draw in relation to this provision and it was rightly rejected by the Divisional Court. It would be wholly artificial to ignore the fact that the premises are being, or are to be, used, and, in so far as the statute is concerned with health of the occupiers, account must be taken of the fact that it is in the use by them of the premises that the injury to health may arise. Support for the proposed distinction was sought in section 268(2) of the Public Health Act 1936 as amended by the Environmental Protection Act 1990, Sch. 15, para. 4(4)(b), where in relation to tents, vans, sheds and similar structures used for human habitation a statutory nuisance shall exist if the structure is one:

It is true that this provision is made expressly for the purposes of Part III of the Environmental Protection Act 1990 but I do not consider that it supports the suggested distinction. Section 282(2) is dealing with certain kinds of structures which may or may not be used for habitation and the more elaborate provision for that class of subject becomes necessary for that reason. Nor does the suggested dichotomy appear clearly from the provision. Overcrowding, which is mentioned in the context of the state of the place, involves its use. And the absence of proper sanitary accommodation, which appears in the context of use, might be seen as a matter of the actual physical conditions. It is primarily the premises to which attention has to be directed, but in doing so the use that is made of them cannot be left out of account.

It is to the state of the premises themselves that attention is required to be paid and in approaching the matter of the state of the premises it is clear that an objective point of view is required. One should not be looking to the particular requirements of a particular occupier. Furthermore simply because premises may be considered to qualify as a nuisance does not bring them within the subsection. Thus in The Queen v. Parlby (1889) 22 QBD 520 it was recognised that "premises" could not be construed as to include any premises on which a nuisance existed, and in particular a sewage works. Otherwise the list of particular kinds of nuisances which followed in the subsection would be unnecessary. Wills J. observed (p. 525):

It is then to the premises themselves that attention is to be directed. There must be something about the state of the premises which is prejudicial to health or a nuisance. The provision is not concerned with matters of construction such as may give rise to accidental injury. In that respect the physical state of the premises is not relevant. Nor is it concerned with mere matters of comfort or convenience which do not relate to any danger to health. But while it is matters of illness and disease rather than accidental injury or mere comfort which are relevant, that does not require the exclusion of consideration of the way in which the premises will ordinarily be used. And while in many cases no doubt the state may be one which has developed by a process of deterioration, I see no reason for excluding the situation where the probability of injury to health has existed from the outset or been brought about by some deliberate change to the premises.

A second argument was, however, developed that the word "state" should be so construed as to exclude matters of layout or the lack of some particular facility. These, it was suggested, were matters for other legislation and were outside the scope of the Public Health Acts. The proposition was advanced that section 79(1)(a) was not concerned with the configuration or the layout of the house and the policy of the legislation did not require the movement of the lavatory in the present case. This may be seen as a narrow view of the scope of the legislation as compared with a broad view which would include the lack of facilities or the positioning of facilities which will or will be likely to cause injury to health.

In my judgment the broad view is to be preferred. It is important in the first place to take into account the purpose and intent of the legislation. One of the principal purposes of the public health legislation from the nineteenth century onwards has been to secure the prevention of illness and disease. As time has passed and new concerns have arisen regarding pollution and the protection of the environment the variety of the risks has increased but the basic purpose of ensuring that people may live and work in hygienic and sanitary conditions and that the risks of disease and ill-health may be minimised has remained unchanged. The concept of the "statutory nuisance" is designed to identify the situations where risks to health may occur and the machinery provided in the successive enactments is designed to effect a simple and swift remedy wherever such a risk may be found to exist. The definition of what may be "prejudicial to health" is formulated in wide terms. It covers what may be actually injurious as well as what may be likely to be injurious and in either case something over and above what may be seen as a "nuisance", since section 79(1)(a) includes not only what is "prejudicial to health" but also, in the alternative, what may be a nuisance. I find nothing in the Act which supports the adoption of a narrow construction of the word "state" and the whole purpose of the legislation seems to me to point to a broad construction in the interests of the good health of the public. A narrow construction which would exclude consideration of a layout which was injurious to health, or the absence of a facility without which a risk to health would be likely to arise, seems to me to run counter to the intent and purpose of the past and the present legislation.

It is of course important to take account of the history of the legislation and how it has been understood in the past. But I have not been persuaded that the past history of the legislation or its application by the courts justifies the proposed restriction. Two cases under the Public Health Act 1875, whose section 91(1) corresponds with section 79(1)(a) of the Act of 1990, may be mentioned. In The Queen v. Wheatley (1885) 16 QBD 34 although the actual order which was made was held in its terms to be invalid as too vague, the existence of an untrapped drain was recognised as a nuisance. The lack of a trap on the drains gave rise to a health hazard. Closer to the present case is that of Ex parte Saunders (1883) 11 QBD 191. In that case the nuisance arose from the existence of a water closet which was situated in the centre of the house. It seems that there was no, or at least inadequate, ventilation. The justices ordered that the closet be removed from the centre of the house and be placed near an outer wall where there should be efficient ventilation. As I read the report of the case, there appears to have been nothing defective about the closet other than its situation. The defect in ventilation was resolved by moving the same closet to another location. The court distinguished the case of Ex parte Whitchurch 6 QBD 545 where an order to substitute a different kind of closet had been held to be invalid and held that the order to move the water-closet was within the powers of the justices. A.L.Smith, J. observed (p.194) that the case would not have been arguable but for the decision in Whitchurch.

If the premises in these cases were viewed as new and unoccupied, even if they were spotlessly clean, it could be thought that they constituted no risk to health. But when account is taken of them being occupied and used the hazard becomes evident.

The more recent cases seem to me also to support the broader view. The failure to provide proper ventilation, insulation and heating was held in GLC v. London Borough of Tower Hamlets (1983) 15 HLR 54 to constitute a statutory nuisance. In Birmingham District Council v. Kelly (1985) 17 HLR 572 a nuisance order was approved which required the provision of fixtures, fittings and facilities not present at the commencement of the tenancy. It seems to me that a failure to provide adequate washing facilities for use with a WC, or the failure so to site the WC as to enable the user to have proper access to a hand basin are within what has always been recognised to be the scope of the statutory provision and a proper subject matter for an order by the justices. The order in the present case does not involve any new or enlarged meaning to be given to the word "state" but is in line with the broad meaning which has earlier been recognised.

Concern for public health in general and the prevention of illness and disease in particular lies behind a variety of legislative measures even although their principal focus may be directed to different topics. The Building Act 1984 is an obvious example. More particularly under section 1 of that Act regulations may be made for the purposes of securing the health, safety, welfare and convenience of persons in or about buildings. So it is not surprising that there should be an overlap of statutory provisions which may be directed to the avoidance of some recognised potential cause of ill-health. The precise provisions and the statutory procedures for the achievement of the common aim will differ, but I see no necessity to allocate a particular situation to some particular statutory provision where the language of several provisions is reasonably capable of embracing it. That a particular situation is or is not matter of express provision in the current building regulations does not assist in determining whether or not it falls under the public health legislation. In the present case the fact that a requirement for a wash-hand basin in a room containing a water-closet originally was not, but then came to be (in SI 1991/2768), a matter of express requirement under the Building Regulations should not in my view determine the question whether the absence of such a wash basin can or cannot qualify as a factor in the state of premises for the purposes of section 79 of the 1990 Act. The same situation may rank both as a statutory nuisance and as a failure in meeting the standards of a building regulation. In London Borough of Southwark v. Ince (1989) 21 HLR 504 the existence of special legislation dealing with the problems of noise did not exclude the application of the legislation on public health in the provision of a remedy.

The remedy which was invoked in the present case under section 82 is designed as a summary proceeding and the room for fine distinctions should avoided so far as may be possible. Eventually the issue comes to be one of fact on which the good sense of the justices may be relied upon for a sensible and practical conclusion. In the ordinary use of language it seems to me that the state of premises may include a deficiency due to the absence of a facility or a particular positioning of the facilities. In the present case the use of one or other of the washing facilities in the kitchen or the bathroom was inevitable so far as anyone using the WC was concerned. Thus there was clearly something inadequate with the premises themselves so far as health and hygiene were concerned. The remedy was to do something to the premises. It was a matter for the Justices to determine whether the risk was sufficient to constitute a statutory nuisance. In the circumstances it seems to me that the Justices were entitled to hold that the risk of cross infection which they feared was due to the state of the premises. I would dismiss the appeal.

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann, with which I am in full agreement. In my view the Public Health Acts are concerned with the state of the premises, not with their layout or with the facilities which ought to be installed in them. In the present case the risk to health can be variously ascribed to the layout of the premises (because the lavatory was poorly sited) or to the absence of a desirable facility (a washbasin in reasonable proximity to the lavatory). But it does not derive from the state of the premises.

The cases on which the respondent relied do not, in my opinion, support his argument. Reg. v. Wheatley (1885) 16 Q.B.D. 34 was concerned with untrapped drains. The drains formed part of the premises and constituted a health risk. The case is quite different from the present. The health risk derived from the presence of the drains, not from the absence of a trap. That was not in itself a health risk, but it made the drains one. A modern lavatory in good working order is not a risk to health, and the absence of a washbasin in the vicinity does not make it one. Ex parte Saunders (1883) 11 Q.B.D. 191 and Ex parte Whitchurch (1881) 6 Q.B.D. 545 were both concerned with defective privies which were themselves a risk to health.

In Saunders the privy was situated in the centre of the house and lacked ventilation. The justices ordered it to be removed, placed near an outer wall and provided with efficient ventilation. They also ordered the soil pipe to be fixed outside the walls, the drains to be examined and if necessary re-laid, new joints to be provided and new flushing arrangements made. The privy and drains were expressly characterised as defective (see p. 191. It seems that the location of the privy was not the only risk to health, though it aggravated the problem and made it likely to recur.

I do not doubt that the presence of a defective drain or lavatory lacking ventilation on the premises is capable of rendering the state of the premises a danger to health. But I do not consider that the complete absence of a lavatory (or a bath or kitchen), however inconvenient, could be said to render the state of the premises injurious to health. There was nothing wrong with the lavatory in the present case except its location. It was not a danger to health. Any danger to health arose from the absence of a washbasin in its vicinity. Whether the law should require washbasins to be installed near lavatories is a matter for Parliament, but the Public Health Acts are not a suitable vehicle. They are concerned with the state of premises and not with their physical layout or the facilities to be provided in them. These are matters for building regulations, which can distinguish between new constructions and old.

It is, of course the case that, where the state of the premises is prejudicial to health, the danger may sometimes be remedied by the provision of additional facilities not already present. Premises which lack proper ventilation are damp. Premises which are damp are in a state which is injurious to health. This may be remedied by the provision of ventilation or the installation of heating appliances. But it does not follow from the fact that the risk to health in a particular case may be remedied by the provision of additional facilities that the risk is due to the state of the premises.

I agree with my noble and learned friend Lord Hoffmann that the decision in London Borough of Southwark v. Ince (1989) 21 H.L.R. 504 (absence of sound insulation) may require reconsideration.

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Birmingham City Council v. Oakley [2000] UKHL 59 (29 November 2000) URL: http://www.bailii.org/uk/cases/UKHL/2000/59.html Cite as: [2001] 1 All ER 385, [2000] UKHL 59, [2000] 3 WLR 1936, [2001] 1 AC 617, [2001] LGR 110

United Kingdom House of Lords Decisions