England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th November 2005

Poole J:

1. In this case the Claimant seeks judicial review of a decision of the London Borough of Lambeth (LBL) on or about 15 November 2004 not to serve an abatement notice pursuant to s 80 of the Environmental Protection Act 1990 (EP A) requiring works in respect of noise insulation. We have received arguments both written and oral from the Claimant, from the Defendant (LBL) and from the Interested Party the London and Quadrant Housing Trust (LQHT).
2. Details of the remedy sought are these:-

a quashing order of the decision of the LBL's Regulatory Services, (Noise and Pollution Control) not to serve an abatement notice pursuant to s 80 EPA requiring works in respect of noise nuisance on the Claimant's landlords LQHT;

a declaration that the decision of the LBL's, Regulatory Services, (Noise and . Pollution Control) not to serve an abatement notice pursuant to s 80 EP A requiring works in respect of noise nuisance on the Claimant's landlords LQHT was unlawful;

a mandatory order that the LBL's Regulatory Services, (Noise and Pollution Control) do serve an abatement notice pursuant to s 80 EP A requiring works in respect of noise nuisance on the Claimant's landlords LQHT; or

a mandatory order that the LBL's Regulatory Services, (Noise and Pollution Control) reconsider serving an abatement notice pursuant to s 80 EPA requiring works in respect of noise nuisance on the Claimant's landlords LQHT.

The History

3. On 13^th December 2000, the Claimant became the tenant of LQHT of a flat at 25 Elmhurst Mansions, Edgeley Road, SW4 6ET.
4. 25 - 30 Elmshurst Mansions is a terraced property constructed of traditional brick. In about 1978, it was converted into 6 flats, on three floors, two on each floor. There is a communal entrance and hallway and a bare wooden staircase to the upper floors. No 25 is a ground floor one bedroom flat.
5. From January 2001 the Claimant has made complaints to LQHT about noise transference from the flat above his and the communal hallway and stairs.
6. The noise, it is said, is. not due to unreasonable behaviour but to inadequate sound insulation. He can hear footsteps, conversations, flushing toilets, activity with pots and pans in the kitchen, bed squeaks, and water running through the main pipes, as well as TV and radio. Dropped items create loud banging. The Claimant describes the noise as incessant.
7. By a report dated 21/8/02 and subsequently revised in May and June 2003, Mr MA Kenyon MSc BSc MIOA of Martec Environmental Consultants found that the ceiling/floor between the living rooms of the Claimant's flat and the flat above failed the airborne sound requirement under the Building Regulations 1976 and the current Approved Building Regulations 1992 and that the wall between the living room/hallway failed the airborne requirement that and the ceiling/floor between the kitchens in the Claimant's flat and the flat above failed the impact sound and airborne requirements. He concluded, "In my experience the poor sound insulation would render premises in such a state as to be prejudicial to health or a nuisance [s 79(1) Environmental Protection Act (EP A) 1990]". He recommended further testing and upgrading to meet the sound insulation requirements.
8. The noise is such that the Claimant complains he is compelled to stay out of the flat for long periods. A report by Dr Dwyer MB BS (Psychiatrist) concludes, "the environmental noise pollution he reports is a significant perpetuating factor in his depressive illness".
9. In correspondence with LQHT between June and September 2003 the Claimant's solicitors warned of prosecution under s 82 EP A 1990 for permitting a statutory nuisance. That was not pursued.
10. In parallel correspondence with the Defendant Council the Claimant's solicitors requested that the Council investigate the Claimant's complaint of a statutory nuisance pursuant to s 79(1) of the EP A.
11. Eventually officers of the Council visited the flats to carry out a "subjective assessment of the noise" on 22/7/04 and 27/7/04.
12. The Council's decision following the assessment was received on 15/11/04. By that stage the Claimant's solicitor had sent a further report dated 25/10/04 to the Council made by Richard· Buckley BSc MSc MIOA which was also critical of sound insulation at the premises.
13. By the letter dated 15/11/04 the Council stated amongst other matters:- "Whilst we agree with the [Claimant's] scientific assessment, we do not believe that Mr Vella's premises can be classified as a statutory nuisance by virtue of it being in such a state as to be prejudicial to health or a nuisance. Accordingly we can see no legal justification in serving an abatement notice on either Mr Vella's landlord or his neighbour. We base our view and conclusion on the advice and opinion given us by our legal department".
14. By letter dated 31/1105 pursuant to the judicial Review pre-action protocol the Claimant's solicitors put to the Council the argument that it had misdirected itself essentially as set out below under "The Law and Submissions" ..
15. By an e-mail dated 1/2/05 the Council replied, amongst other matters:- "I have considered your arguments very carefully and re-examined the opinion and advice given by our legal department. Clearly we are at odds and I am unsure how we can reach a satisfactory conclusion without your client having to resort to judicial review proceedings".

Claimant's first submissions of law in outline were these:-

16. A statutory nuisance within the meaning of s 79 (1)(a) of the EPA includes "premises in such a state as to be prejudicial to health or a nuisance". "Prejudicial" is further defined as "injurious or likely to cause injury to health" (s 79 (7)). Under s 80 the Council shall serve an abatement notice if "satisfied that a statutory nuisance exists". The Defendant is "the person responsible for the nuisance" defined as "the person to whose act, default or sufferance (permission) the nuisance is attributable" s 80 (2)(a) and s 79 (7). The owner of the premises is the proper defendant if the person responsible cannot be found - s 80 (2)( c).
17. The reason for the Council's decision, as the decision letter makes plain, is because of the legal advice the Officer had received from the Council's legal department.
18. That advice is recorded in a letter of 15.11.04 concluding in a refusal to serve an· abatement notice.
19. Firstly, submits the Claimant, the Council has misdirected itself by assuming a link between the "nuisance" limb of s 79 (1 )(a) and the "prejudicial to health" limb.
20. A nuisance must be caused to neighbouring property (LB Southwark v Mills 2000 32 HLR 148 at 159 - Lord Hoffman). It is for that reason he argues that the many prosecutions against landlords for the state of residential property leading to excessive condensation damp have been under the "prejudicial to health" limb (eg Birmingham DC v Kelly 1985 17 HLR 572) and not the nuisance limb as the occupiers could not prosecute in nuisance in respect of the property they themselves occupy.
21. However here, it is argued, the premises are "in such a state" by reason of inadequate sound insulation that they are prejudicial to health as the Claimant's evidence shows it . is prejudicial to hi~ health. Accordingly it is submitted that, properly directing itself the Council should have decided that it could have proceeded under the "prejudicial to health" limb.
22. In the original formulation of his Claim the Claimant added an argument in nuisance. This has now been abandoned.

Alternative Remedy.

23. Faced with the argument that an alternative remedy is open to the Claimant ie by himself prosecuting the Interested Party under s 82 of the EP A, as at one stage he proposed to do, the Claimant submits that for a number of reasons this would not be as "equally effective and convenient a remedy" as Judicial Review (see R v Birmingham City Council ex p Ferrero Ltd [1993] 1 All ER 530 at 536f). Firstly, this is a case requiring expert evidence from those holding noise nuisance or Environmental Health qualifications. It would be strenuously defended because of the financial implications of an order should other tenants decide to take the same course at the Claimant. The Interested Party is obviously better placed in terms of access to expert and legal advice and representation than he is. Moreover the Claimant does not have the financial resources to fund a private prosecution himself. These are, he argues, severe limitations to such a prosecution.
24. In his written submissions of20 September 05 amplified before us in the course of the hearing, Mr Watkinson for the Claimant added these submissions:-

The essential issue of the Claim was whether "statutory nuisance" within s 79 can include premises which are "in such a state as to be prejudicial to health or a nuisance" by reason of inadequate sound insulation; if so, then whether LBL decision not to serve an abatement notice erred in law;

and finally, whether relief should be refused as a matter of discretion as the Claimant has an "equally effective and convenient remedy" by way of a private prosecution by himself under s 82 of the EP A.

He added this:-

Amongst the matters which constitute "statutory nuisances" under s 79 (1) are:

i) any premises which are in such a state as to be prejudicial to health or a nuisance; and

ii) noise emitted from premises so as to be prejudicial to health or a nuisance, "prejudicial to health" being defined as "injurious or likely to cause injury to health".

25. Conceding that the Claimant cannot succeed on the "nuisance" limb of s 79 (1)(a), he submits that the Claimant is, however, entitled to rely on the "prejudicial to health" limb. The two limbs are quite clearly contrasted in s 79(1) (a) and (g) and LBL erred he argues in assuming a link between them. Moreover in two cases in the Divisional Court, London Borough of Southwark v Ince 21 (1989) 21 HLR 505 and Network HA v Westminster (1995) 27 HLR 189, premises have been held to be statutory nuisances, in particular in Ince, under the "prejudicial to health" limb, by reason of noise which penetrated an applicant's flat because of inadequate sound insulation'.
26. Neither LBL nor the Interested Party contests the Claimant's account of the noise he experiences, nor its effect on him, his expert evidence or his medical report. Accordingly applying the facts to the matters set out in s 79 as constituting "statutory nuisance", it is submitted that the Claimant's flat, alternatively the flat above are "premises in such a state" by reason of inadequate sound insulation, "as to be prejudicial to health". Mr Watkinson cites Savile J (as he then was) in Ince, "It seems to me that the words in the Act are quite general in this sense, that the enquiry is whether (for whatever reason) the premises are in such a state as to be prejudicial to health" (page 506). He then notes that by their Grounds for Contesting the Claim dated 7 April 05 and 12 September 05 respectively LBL and LQHT rely upon Birmingham City Council v Oakley 2001 1 AC 617 and R v Bristol CC Ex p Everett 1999 31 HLR 1102 for the proposition that the statutory scope of s 79 (1) does not extend to the effect of noise caused by inadequate sound insulation.
27. That proposition he notes is based on 2 platforms:-

(a) the legislative history of s 79, which is said to show that the phrase "prejudicial to health" refers to a threat to health in the sense of disease, vermin and the like in the sense of public health or "sanitary matters", and to "premises which are noxious, insanitary or productive of disease"; and

(b) the fact that problems of sound insulation have been dealt with under other, including recent, legislation, and initiatives.

28. As to the legislative history he says the Claimant does not dispute the legislative history as set out at 630 B - H in Oakley and 1108 - 9 in Everett. But it is submitted that the findings in Oakley and Everett do not bear on the present case. In Oakley it was held that s 79 (l)(a) did not extend to the layout of premises, in that case the absence of a wash hand basin in the wc. Lord Slynn he concedes made this observation:- "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 wash hand 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 He prejudicial to health that the lavatory and the wash basin are in separate rooms or that 10 get from one to the other it is necessary to pass through the kitchen". Lords Hoffmann and Millett concurred.
29. But the essence of their Lordships' findings in Oakley, he submits, is to be found in the opinion of Lord Hoffmann in this passage: "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" @ 631 A. It is therefore the "state" of the premises that is crucial as to whether it is "prejudicial to health".
30. As to Everett, he submits, it was a case that essentially concerned whether s 79 (1)(a) covered potential physical injury caused by a steep internal staircase. It was that specific proposition that the Court rejected. That is not this case. For this is a case concerning not physical injury but ill health, and he cites Buxton LJ @ 1113 "The limitation of the reach of this Statute to disease and ill-health is too long standing and deep rooted to be susceptible now to any different interpretation", He submits therefore that what the statute covers is "premises in such a state as to be prejudicial to health" having regard to its own terms, the legislative history, and the case-law. Moreover, he says, it is indicative that prejudice to health caused by excessive condensation has been held to be within 79 (l)(a) despite this being a feature of types of construction used in the post war period.
31. As to the relevance of other legislation, he submits that· the existence of other statutory remedies (including Building Regulation provision) in relation to inadequate sound insulation does not prevent a remedy under the EPA. He cites here the opinion of Lord Slynn in Oakley @ 624D - 625A "In considering the meaning of the relevant words in the 1990 Act, the complainant's case is, in my view, not precluded by the fact that any other regulatory powers exist .... The 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 in 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 s 79 (l)(a) ".
32. Similarly in Ince, Savile J @ page 506: "I am not persuaded that because there is now the Control of Pollution Act and there was previously the Noise Abatement Act that therefore lends any support to the construction [that the Public Health Act 1936 did not apply to premises whose standard of noise insulation was such as make the premises prejudicial to health). Under s 92 (l)(a) [now s 79 (l)(a)] the question is not whether the noise itself is a statutory nuisance but whether the premises are in such a state as to be prejudicial to health. "
33. The Housing Act 2004 did not he observes repeal or amend ss 79-82 of the 1990 Act.
34. In Haringey LBC v Jowett 1999 32 HLR 308, he observes, it was held that s 79 (1)(a) .did not cover noise nuisance caused by street traffic. However, such noise was expressly excluded from the scope of s 79 by 79(1) ga (added by the Noise and Statutory Nuisance Act 1993 s 2) and could not be re-included by s 79 (1 )(a). But that he submits does not affect the construction of 79 (l)(a) so far as the noise caused by the inadequate sound insulation in this case is concerned.
35. Turning to cost implications and the witness statement of Mr Loveday on behalf of the Interested Party, he observes that such factors themselves cannot be regarded as part of the history of the relevant legislation, and that works to remedy the conditions of premises which are found to be prejudicial to health, and which would involve cost (and depending on the case, considerable cost) must have been contemplated by successive legislators.
36. The Claimant then makes no secret that he places his main reliance on Ince and perhaps to a lesser extent on Network HA v Westminster in support of his proposition that the section on which he relies covers such noise due to inadequate sound insulation as is prejudicial to health, distinguishing Oakley, as I understand it, as establishing merely that the section does not extend to the layout of the premises, and Everett on the grounds that it was a case based on its peculiar facts concerning danger of physical injury caused by steep stairs.

The Replies

37. The replies of LQHT and of LBL cover much the same ground as each other, as is hardly surprising.
38. Mr Baker, for LQHT, points out first that the case is one that has serious implications for social and local authority landlords of older housing stock lacking in sound .insulation to current standards. It is LQHT's case that as a matter of law and statutory construction neither the premises nor any adjoining premises have been "in such a state as to be prejudicial to health or a nuisance" within the true meaning of s 79 (1)(a). LBL's decision was therefore correct.
39. After a brief survey of the factual background he turned to the legislation, pointing out first that the prohibition of statutory nuisance is backed by the use of the criminal law (see EPA s 80 (4) - (6)) and that there is accordingly a need for legislation to be very clear if it is to be held to cover a particular case. He cites R v Parlby (1889) LR 22 QB 520 where the court held (at 527):

"The very magnitude of the authority conferred upon justices by the sections under consideration affords a powerful argument that they are intended for ordinary and comparatively simple cases... ..."

40. S 79 (1)(a), by contrast, is not at all clearly geared toward noise occurring on or emanating from premises and/or transmitted to other premises. I agree. He points out, too, that Parliament has felt it necessary to make separate provision in s 79 (1) for two specific cases involving noise: ss (1)(g), concerning noise emitted from premises; and ss (1)(ga) concerning noise from vehicles etc in a street.
41. Turning to the claim, the sole ground on which the Claimant now proceeds, he notes, is that LBL misdirected themselves by assuming a link between the 'nuisance' limb of s 79 (1)(a) and the 'prejudicial to health' limb. But this he says is to misrepresent what LBL were saying. LBL's point was that it was difficult to see how the noise of ordinary domestic use could fail to give rise to a nuisance at common law (because of Southwark & Tanner) yet at the same time be prejudicial to health. This did not assume a "link" between the concepts of nuisance and "prejudicial to health": rather it was a matter of continuing the argument to a logical conclusion. LBL's reasoning might be said to be a reflection that, as a matter of fact, if the lower level of the test for common law nuisance failed to be satisfied it was difficult to foresee how the' higher hurdle of prejudice to health could be cleared.
42. Mr Baker set out his core submission thus:

EPA, s 79 (1)(a), must be read in the context of the underlying statutory purpose, namely to remedy premises which are noxious, insanitary or productive of disease. That purpose is evident from considering the statutory history, and from the decisions in Oakley and R v Bristol City Council ex p Everett [1999] 1 WLR 1170, CA. When read in this way, it is clear that the present case does not fit within the scope of the legislative provisions.

The origins of EPA, s 79 (1) (a) can be traced back to the temporary Act of 1846 (9 & 10 Vict c96). The title to the 1846 Act described it as being "an Act for the more speedy Removal of certain Nuisances, and to enable the Privy Council to make Regulations for the Prevention of contagious and epidemic Diseases ..... ".

In Oakley, Lord Hoffman explained at 6301B - C that the 1846 temporary emergency legislation was "rushed through Parliament in August of the unusually hot summer of 1846, when rumours of cholera and typhoid were rife".

The 1846 Act was renewed and amended by the Nuisance Removal and Diseases 'Prevention Act 1848 (11 & 12 Vict c123), the title to which described it to be "for the more speedy Removal of certain Nuisances, and the Prevention of contagious and epidemic Diseases".

The 1848 Act was itself consolidated with amendments by the Nuisance Removal Act for England 1855, (18 & 19 Vict el21) s8 of which defined "nuisances" in the Act to include "Any Premises in such a State as to be a Nuisance or injurious to Health".

In short, he traced the origins of EPA s 79 (1)(a) and through to the Public Health Act 1936.

43. The exact form of words presently contained in EPA 1990 s 79 (l)(a), he pointed out can be traced back directly to the Public Health Act 1936 s 92 (1)(a), which included among other statutory nuisances

"(a) any premises in such a state as to be prejudicial to health or a nuisance".

44. Furthermore, he argued, there are now provisions in EP A, s 79 (1) which deal specifically with noise, though no such provisions were contained in the Public Health Act 1936 or previous public health legislation; but as he argues the presence of such provisions does not assist the Claimant's case on EPA s 79 (l)(a).

(a) EPA, s 79(l)(g) deals with noise emitted from premises so as to be prejudicial to health or a nuisance.

(b) EP A, s 79 (l )(ga) deals with some cases of noise emitted from vehicles etc in a street which is prejudicial to health or a nuisance, but excluding for example traffic noise (see s 79 (6A)(a)). These provisions were added by the Noise and Statutory Nuisance Act 1993, s 2 (2)(b).

(c) But the above provisions in the EPA cannot, he argues, have enlarged the meaning to be given to s 79(l)(a); to the contrary, it has been held that the 1993 amendments limited the ambit of s 79 (l)(a): see Haringey LBC v Jowett (2000) 32 HLR 308, QBD, which proceeded on the basis that Ince was correctly decided, a conclusion challenged by both Mr Baker and Mr Arden: The correct interpretation they submit is that the presence of s 79 (l)(g) and (ga) contradicts the Claimant's assertion that s 79 (l)(a) was intended to cover noise at all.

45. Both LBL and LQHT place considerable and in my judgment justified reliance on Oakley. In Oakley, Lord Slynn (with whom Lord Millett agreed) held (at 627.B-D): "I am influenced in the first place by the fact that earlier statutes were dealing with a 'filthy and unwholesome condition' of a house or the collection of noxious matter or afoul or offensive drain or privy. All 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".
46. Lord Slynn also held (at 628/A, having referred to a number of previous decisions including Everett): "The object of section. 79 as with the earlier provisions was to provide a means for the summary removal of noxious matters."
47. Lord Hoffmann (with whom Lord Millett also agreed) held that Everett was "authority for the proposition that the language of section 79 (l)(a) must be construed in the light of its legislative history" (at 629.H). He went on to hold (at 6311A-B):

"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."

48. The majority (Lords Slynn, Hoffmann and Millett) accordingly held that the layout of the premises (ie a wc without a washbasin on one side of a kitchen, with the bathroom on the other side of the kitchen) did not give rise to a statutory nuisance under EPA s 79(1)(a). Lord Millett held (at 637. B-C), and 637/ G-H) respectively): "In my view the Public Health Acts are concerned with the state of the premises, not with the 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 is 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", and

"Whether the law should require washbasins to be installed in or 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 construction and old."

49. Accordingly, as both LBL and LQHT argue, any actual or likely injury to health caused by noise disturbance (either generally or· in the circumstances of the present case) does not fall within EPA, s 79(1)(a) because:

(a) such disturbance consists of the presence of noise, which is not itself a "state" of the premises, because it relies on some activity to be creating the noise; and/or

(b) such disturbance is not within the kinds of "state" which Parliament intended to tackle, because for premises to be "in such a state" denotes a steady condition or continuing state of affairs in contrast to' the occurrence of noise which by its nature may well be intermittent: compare the emission of smoke etc under s 79 (1 )(b) and (c); and/or

(c) the state of the premises (ie lacking sufficient sound insulation) is not such "as to be prejudicial to health", because the mere lack of such a facility or feature in premises is not without more (ie without the additional factor of the activity creating the noise) prejudicial to health; and/or

(d) Parliament has recognised that disturbance from noise is a conceptually different problem from that for which the legislation was originally designed, and, (to the extent that it had chosen to apply the scheme of statutory nuisance to it) has accordingly made specific provision for it in certain limited respects, ie under EP A s 79 (1 )(ga).

50. Further reliance is placed by LBL and by LQHT on Everett. The Court in Everett held that s 79 (l)(a) did not extend to the danger of accidental physical injury from falling down a steep staircase. In reaching this decision, the Court undertook a detailed analysis of the legislative history, context and content, confirming the need to confine EPA s 79 (l)(a) within the scope which Parliament originally intended for it. Mummery LJ held (at 1177E): "The important point to note from the legislative history is that the expression, which now falls to be construed in section 79 of the 1990 Act, has been repeatedly used by Parliament in the context of what have been characterised as 'sanitary statutes'. There are distinct statutory provisions relating to dangerous and, dilapidated buildings."
51. Mr Baker further argues that if Parliament had intended that EPA s 79 (1)(a) should cover noise, it is unlikely (given the clarity required in legislation creating criminal offences) that it should previously have provided for substantially overlapping liability by the provisions in the Noise Abatement Act 1960 and the Control of Pollution Act 1974; and that it should now have EP A, s 79 (1 )(g) or (ga) to cover cases of emitted noise. It is the Claimant's case that either his flat or the flat above are statutory nuisances. But if the flat above is a statutory nuisance for emitting noise, there is no role left at all for s 79 (l)(g). He again cites Par/by in support.
52. At the very least, he argues, the Court should be slow to interpret EPA, s 79 (I)(a) in a manner which either leaves it unclear whether a particular set of facts falls under one provision rather than another, or which involves an extension of provisions which are unclear. Again, I agree.
53. The above approach is not, he argues, inconsistent, as the Claimant seems to infer, with cases on condensation dampness. In Birmingham v Kelly (1985) 17 HLR 572 DC, for example, it is clear there was mould growth within the premises themselves which was prejudicial to health (P577), and that accordingly the premises could be said to be in a "state" which was a statutory nuisance under the Public Health Act 1936 s92 (I)(a) (now EPA s 79 (l)(a)).
54. Mr Baker and Mr Arden were unsparing in their attack on Ince which if not wrongly decided no longer they say represents good law after the decisions in Everett and Oakley. In Oakley Lord Hoffmann said (at 6311c-D): "Southwark London Borough Council v Ince 21 HLR 504 is not directly in point but I would wish to preserve my position on whether ·it was correctly decided. Agreeing with Lord Hoffmann, Lord Millett (at 638/A-B) said that Ince "may require reconsideration".
55. Even on its own terms, they argue, Ince is not a strong decision on which to base potentially wide-ranging criminal liability for common sound insulation problems. Woolf LJ emphasised the significance and particularity of his findings (p511), and expressed the view that "The facts of this case may therefore be extremely unusual and ones which are unlikely to re-occur" (P511). Woolf LJ also recognised at the beginning of his judgment (P510) that it was "possible to have come to a different conclusion as to the proper interpretation of the relevant provisions contained in Part III of the Public Health Act 1936"
56. Ince was decided without any consideration of the legislative history of what is now EPA, s 79 (1)(a), which was found to be fundamental in both Everett and Oakley. It also brushed aside the relevance of provisions in the Noise Abatement Act 1960 and the Control of Pollution Act 1974 (Savile J at 506, Woolf LJ at 510 - 511), whereas in both Everett and Oakley (per Lord Hoffmann arid Lord Millett), the existence of other legislation to deal with the problems under consideration was considered material. Ince was furthermore decided before Parliament re-cast the public health legislation in what is now EPA s 79 (1)(a), and before the additions of ss(l)(g) and (ga) which create specific categories of cases dealing with noise.
57. The reasoning in Ince they conclude cannot withstand the undermining of it by reasoning and result in Oakley and Everett.
58. The decision in Network they argue (which was a decision under s 79 (l)(g) and pre-Oakley) is flawed in a similar way to that in Ince. Buckley J held (at 192, with which Simon Brown LJ, as he. then was, agreed): I~ is not the noise per se that is in question; it is the lack of sound proofing which combines to create the nuisance to Flat C". Under EPA s 79 (1)(g), however, it was the noise which in itself had to be prejudicial to health or a nuisance. The same approach as under s 79 (l)(a) ought to apply; under s 79 (1)(g) it is the activity of creating and emitting a noise which is in point, whereas under s 79 (1)(a) it is the state of the premises themselves.
59. Accordingly, the Court's reasoning in Network as to the person responsible, and the person on whom the abatement notice was to be served, proceeded on a mistaken view of the law.
60. Mr Baker concludes that it is not appropriate for the courts to strive to interpret EPA s 79 (1)(a) so as to cover the present case, because this is an area which the courts should leave to be decided by the democratic process, national and local.
61. Mr Arden for LBL addressed the court with arguments parallel to those of Mr Baker on the legislative history and on Everett, Oakley, Ince and Jowett.
62. The Claimant's reliance on Jowett is misplaced, he argued. Jowett was a case concerning traffic noise following the amendments to the EP A, introduced by the Noise and Statutory Nuisance Act 1993. Because Parliament had legislated, following Ince, to introduce a new provision (s 79 (l)(g» dealing with noise from vehicles but expressly excluding traffic noise, the court concluded that s 79 (1)(g) was no longer available to a person complaining of inadequate sound insulation to protect against noise from traffic in the street. The court concluded that the effect of the statutory amendments was, unusually, to restrict the ambit of s 79 (l)(a), from that which it had had at the time of Ince.
63. This conclusion, however, was premised on Ince being correctly decided. If, as now seems clear from Everett and Oakley, Ince was wrongly decided, it was not necessary to attribute to the statutory amendments an odd effect; they merely (and conventionally) extended the ambit of statutory nuisance in relation to noise in the street in. the same way that s 79 (1 )(g) had extended the ambit in relation to noise emitted from premises.
64. If, on the other hand, Ince was correctly decided, then Jowett - on which the Claimant relies - is authority for the proposition that the addition of s 79 (1 )(g), after Ince, means Ince can no longer be relied on as an authority on the meaning of s 79 (1)(a). There is no mention of s 79(1 )(g) in Jowett, let alone of its addition in 1990. On this approach, therefore, if noise from other premises was not at all times prior to 1990 excluded from s 79 (l)(a), it was excluded from then on.
65. Mr Arden also points out that quite apart from the Building Regulations which, since 1991, have required sound insulation to be installed in new flat conversions, the 2005 version of which increases the level of insulation to be provided, Parliament has intervened to create a new regime for dealing with complaints of noise penetration. Mr Arden provided the Court with particulars of the regime.
66. In Oakley, the combination of the legislative history and the separate statutory code dealing, with the subject matter of the complaint "threw a clear light" for Lord Hoffman on what Parliament intended by the words it used in s 79 (l)(a) of the EPA. Lord Slynn of Hadley also regarded the existence of a separate statutory scheme as relevant to the construction of s 79 (1)(a) - albeit not conclusively so (at 624H). Lord .Millett also agreed (at 637H).

Conclusions

67. In my judgment, as both Mr Arden and Mr Baker have argued, the contention that a lack of adequate sound insulation can cause premises to be in such a state as to be prejudicial to health for the purposes of s 79 (1 )(a) is no longer sustainable following Everett and Oakley.
68. I am satisfied that the Claimant cannot as he seeks to do properly distinguish the Everett and Oakley decisions as having no bearing on the current case on the basis that Everett decides only that a risk of personal injury is beyond the purview of s 79 (1)(a), and, likewise, that Oakley decides no more than the layout of premises falls out with the same statutory provision.
69. The reasoning of the Court of Appeal in Everett and the majority of the House of Lords in Oakley is as compelling on the facts of this case as it was on the facts of those. It is that reasoning which caused Lords Hoffmann and Millett to express reservations as to the correctness of Ince. If the words used in s 79 (1)(a) can be given no wider meaning than that which has attached to the same words since the enactment of the "sanitary statutes" of the mid-nineteenth century, there can be no room for holding that a lack of sound insulation sufficient to comply with current standards renders premises in such a state as to be prejudicial to health.
70. Moreover, as Mr Arden points out, other factors considered important by Lord Hoffmann are also present here. Parliament has provided for a separate statutory code under which local authorities have express powers and in. the most serious cases duties to deal with sound insulation. In addition, government has, by means of the decent homes standard, introduced a scheme by which planned improvements to the social and private housing stock in this country will be made by 2010.
71. The immense financial burden that would be imposed on social and private landlords if the court were, by the statutory nuisance route, to require the immediate upgrading of properties generally to a standard of sound insulation not' required when they were constructed or adapted, is also very real (see the statement of John Loveday, para 13). As Lord Hoffmann recognised, imposing burdens on this scale is a matter of housing management not environmental health.
72. The premises in this case are not themselves in such a state as to be injurious or likely to cause injury to health. They are not defective, unwholesome, filthy, verminous etc. It is simply that, when noise is caused in adjoining premises, they do not prevent the transmission of that noise.
73. The Claimant's reliance on Birmingham CC v Kelly (1985) 17 HLR 572 QBD and Greater London Council v Tower Hamlets LBC (1983) 15 HLR 57 is misplaced. In those cases, as was pointed out by Lord Slynn in Oakley, the premises were seriously affected by mould growth which was prejudicial to health. In Tower Hamlets the property was soaking wet and affected by mould growth (Griffiths LJ at 60). The state of the premises in those cases was therefore entirely different from that in this case - and from that in Ince.
74. Mr Arden too points out that in the sixteen years since Ince was decided, it has been expressly doubted by Kennedy LJ in Jowett and by Lords Hoffmann and Millett in Oakley. Moreover the analysis of the Court of Appeal and House of Lords in Everett and Oakley concerning the legislative history of the provisions, . and the impermissibility of extending the meaning of the words used in s 79 (1), which points appear not to have been argued before the court in Ince, strike at the root at the legal underpinning of the judgments of Savile J and Woolf LJ.
75. I agree. Furthermore, as it seems to me, there is the problem implicit in the Claimant's argument of a conclusion that all noise excluded by ss (I )(g) and (I)(ga) is included in ss (I)(a), including for example aircraft noise, as being injurious to health, - a conclusion that like the remainder of his argument I find it difficult to accept. In my judgment LBL's decision not to serve an abatement notice on LQHT was not merely lawful, but legally correct, and should be upheld. I would dismiss this claim.

Keene LJ:

76. I agree that this claim for judicial review should be dismissed. The issue is whether the local authority was legally obliged to serve an abatement notice under section 80(1) of the 1990 Act, because it should have been satisfied that a statutory nuisance existed or was likely to occur or recur. That in turn depends upon whether the premises in question were

"in such a state as to be prejudicial to health or a nuisance": section 79(1)(a).

Indeed, the matter can be put yet more narrowly, since the claimant does not contend that the case falls within the "nuisance" limb of that paragraph. Nor does he rely on section 79(1)(g), under which noise "emitted from premises so as to be prejudicial to health or a nuisance" amounts to a statutory nuisance. Were, therefore, the premises "in such a state" as to be prejudicial to health?

77. At first blush, the evidence as to the effect of the noise on the claimant's health would seem to bring the case within the wording of section 79(1)(a). The lack of adequate noise insulation might seem to constitute "a state" in which the premises were, and this broad approach to the meaning of this provision is the one which found favour in Ince, to which my Lord has referred.
78. However, I am persuaded that a narrower construction of the statutory language is appropriate, in the light of the legislative history of this provision so helpfully examined in the judgments in R v. Bristol City Council, ex parte· Everett [1999] 1 WLR 1170: see in particular Mummery LJ at 1176A and Buxton LJ at 1181A. While the issue in that case was not the same as that before this court, the approach to the construction of the section is relevant and persuasive. Moreover, the importance of the legislative history was subsequently re-emphasised in Oakley, especially by Lord Slynn at page 627 C-F and Lord Hoffmann at page 630H - 63 JB. As Lord Slynn said at page 627C, the words "such a state" 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." (emphasis added)

Lord Millett likewise regarded the words in section 79(1)(a) as dealing with cases where the state of the premises itself gave rise to a health risk (page 63 7B)and he, like Lord Hoffmann made the point that Ince may need reconsideration.

79. It would in my judgment be a considerable extension of the long-established meaning of this provision to regard it as encompassing a situation where the state of the premises does not itself cause a risk to health but merely fails .to prevent external activities from causing such a risk. In the present case, the inadequate sound insulation did not itself threaten the claimant's health in the way in which, for example, an accumulation of debris would have done. It was the activities of other tenants which gave rise to the prejudice to the claimant's health, and those do not constitute "the state" of the premises. If the claimant were right in his interpretation of section 79(1 )(a), it would produce a situation where statutory nuisances would exist on an enormous scale throughout the towns and cities of this country, not only because of noise from neighbouring occupiers but also because of noise from other sources. I note that, whereas noise caused by aircraft (other than those of the model variety) is excluded from section 79(1)(g) by virtue of section 79(6), no such exclusion applies to section 79(1)(a). Mr Watkinson conceded that it would be consistent with his argument for a statutory nuisance to arise under paragraph (a) where inadequate sound insulation gave rise to prejudice to health because of aircraft noise. That seems to me to have been a proper concession.
80. I find it impossible to accept that this was Parliament's intention when it re-enacted this well-worn phraseology. Moreover, the comment by Lord Hoffmann in Oakley at page 632 D-F applies as much to the present case as it did to the situation with which he was there dealing:

"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 1990 Act a sensible modem interpretation. But I do not think that it is either sensible or in accordance with modem notions .of democracy to hold that when Parliament re-enacted language going back to the 19^th 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."

81. There is a further consideration which supports this narrower construction: Section 80, which imposes the duty on local authorities to serve an abatement notice in respect of a statutory nuisance, is providing for a summary remedy. That can readily be illustrated. Under section 81(3), where an abatement notice has not been complied with, the local authority may itself step in and abate the nuisance, and then it can recover the reasonable expenses of so doing from the person who caused the nuisance: see section 81 (4). Moreover, it is a criminal offence under section 80(4) to contravene or to fail to comply with an abatement notice without reasonable excuse. These provisions indicate that the statutory nuisance machinery is intended to deal with situations requiring a quick remedy because of the threat to health or the nuisance. As Lord Hoffmann said in Oakley, the provisions are dealing with a threat to health "which requires summary removal": page 631A. In such a context, the courts should be slow to adopt an enlarged interpretation of the statutory wording.
82. I too would dismiss this claim.