|Judgments - Oakley (A.P.) (On Appeal From A Divisional Court of The Queen's Bench Division) On 29 November 2000
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  1 W.L.R. 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  A.C. 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  1 W.L.R. 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  3 W.L.R. 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.
I would therefore allow the appeal and dismiss the complaint.
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  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.