England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Sitting at Leeds)
IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED FROM
THE SUNDERLAND MAGISTRATES' COURT

		Leeds Combined Court Centre The Courthouse, 1 Oxford Row Leeds LS1 3BG
		17th April 2018

No reporting restrictions apply to this judgment.

MR JUSTICE KERR:

1. This case is about who can bring a complaint of statutory nuisance in respect of premises. Such a claim must be, and can only be "made by any person on the ground that he is aggrieved by the existence of a statutory nuisance". (section 82(1) of the Environmental Protection Act 1990 (the 1990 Act)). The appellant claims that she fits that description and has standing to complain of statutory nuisance against the respondents. The magistrates in Sunderland decided otherwise. She appeals against that decision.

1. The appeal is by case stated from the Sunderland Magistrates' Court. Nothing that I say in this judgment should be taken as expressing any concluded view on issues that remain live in parallel judicial review proceedings, which I have today transferred to this court; nor do I intend in this judgment to influence in any way the determination of the issues in that separate case. The decision of the magistrates' court was made on 11 December 2017.
2. They dismissed the complaint of statutory nuisance brought by the appellant in respect of an almshouse in Sunderland, which she still occupies: Flat 12, Trafalgar Square, Sunderland (the property). The appeal is against two named respondents. The first respondent is the owner of the property and a charity. The second respondent is engaged by the first respondent to undertake property maintenance work and renovation in respect of this and other almshouses at the same site.
3. In June 2016, a structural report on the property was obtained. Certain works were recommended. In August 2016, the appellant entered into occupation of under what was described as a licence. I will refer to it as such, without prejudice to Ms Watkins' contrary contention in the judicial review proceedings that it was a tenancy. On 26 January 2017, the first respondent served notice to quit requiring the appellant to vacate the property with effect from 26 February 2017, a month later.
4. The appellant did not leave the property but began to withhold rent. Mr Fowler, for the first respondent, supported by Ms Vodanovic for the second respondent, contended that the appellant therefore became a trespasser from 26 February 2017. The appellant, for her part, certainly did not accept that proposition at the time and, in the judicial review proceedings, continues to contest it.

6. An application of some kind was brought in a county court in connection with the property and was dismissed in March 2017. I do not have details of that matter and whether the application was made by one or other of these parties. What I do know is that on 5 September 2017, the appellant laid informations before the justices in Sunderland complaining of a breach of section 79 of the Environmental Protection Act 1990 (the 1990 Act) that the premises were in a state of the type referred to in section 79(1)(a), i.e. "in such a state as to be prejudicial to health or a nuisance".

5. The complaint was, as it is stated, brought under section 82 of the 1990 Act. According to summonses issued a short time later by the Magistrates' Court for the City of Sunderland, the complaint against the first respondent was as follows:

'Complaint for an order to abate or prohibit a statutory nuisance, namely as licensor of Flat 12; pursuant to section 79(1)(a) the premises are in such a state as to be prejudicial to health or a nuisance as the flat has damp; the chimney is required to have corrective works for safety reasons which have not been undertaken within 12 months as recommended by an independent report dated 24 June 2016 by Structural and Civil Consultants Limited to the Defendant and there is evidence of pests present in the property. [I]n respect of premises at Aged Merchant Seamans' Home, Flat 12, Trafalgar Square, Sunderland, …. : in accordance with section 82 of [the 1990 Act]'.

8. A similar but not identical complaint was made against the second respondent in the following terms the same day; it referred in addition to section 79(1)(g) and (ga), which relate to noise emitted from premises or caused by a vehicle, machinery or equipment in a street. That complaint was in the following terms:

'Complaint for an order to abate or prohibit a statutory nuisance, namely in relation to the Defendant as builders conducting works to Trafalgar Square, Sunderland …. pursuant to section 79(1)(a) in respect of their actions contributing to the damp and section 79(1)(g) and (ga) in respect of noise. [I]n respect of premises at Aged Merchant Seamans' home, Flat 12, [same address]. In accordance with section 82 of [the 1990 Act]'.

6. On 26 September 2017, the magistrates' court issued the summonses to the two respondents. After that, the case was managed and a hearing arranged over two days, on 11 and 12 December 2017. According to the documents I have, that hearing was arranged on or about 18 October 2017. In the course of managing the case, it was established that both respondents denied liability and intended to oppose the complaints.
7. In parallel possession proceedings, DJ Malik heard a claim for a possession order brought by the first respondent in the Sunderland County Court under case number D00SR176. In that claim the first respondent sought possession of Flat 12. The claim came before the district judge on 17 November 2017. That date fell between the laying of the informations and the effective hearing thereof in the magistrates' court.
8. On 17 November 2017, District Judge Malik made a possession order requiring the appellant to vacate Flat 12 by 1 December 2017. I have seen a transcript of his judgment and it appears from it that he was satisfied that the appellant's licence had been properly terminated and the notice to quit validly served, on the basis of what was termed 'misconduct' by the appellant. Well, 1 December 2017 came and went without the appellant vacating the property.
9. On 11 December 2017 with the appellant still in occupation, the present matter came before the magistrates. Preliminary submissions were made by counsel for the parties on the question of standing. The decision of the magistrates' court on that issue was as follows. Reference was made to the contentions of the parties and various cases on which they had relied.
10. The magistrates continued, according to a note of the "[b]ench decision" given orally on 11 December 2017, following advice from the clerk to the justices:

'We also note that Ms Watkins is appealing the decision of the county court and remains on the premises that are the subject of this complaint. The landlord does not seem to be allowing her to do so, and the appeal to the county court will resolve her status as far as those provisions are concerned.

In dealing with the application for remedy under the statutory nuisance provisions, we have noted that we have to be certain that the nuisance exists at the time of the hearing i.e. from today. It is up to Ms Watkins to prove that the nuisance exists and the need for remedies to be ordered by the court along with other sanctions if needed. Having heard the arguments we take the view that because Mrs [sic] Watkins has no right to remain on the premises she would not be able to prove that the nuisance that she is complaining about exists as of now. We therefore uphold the defendant's request and dismiss the complaint without hearing any further evidence about the state of the building or needing to consider whether that or the contractor's actions are amounting to a nuisance against her'.

11. The following day, 13 December 2017, the appellant requested that the justices state a case for the opinion of this court. With assistance from their clerk the justices obliged, producing a written case stated on 22 January 2018. On 9 February 2018, the appellant brought the present appeal. It was out of time but Lavender J extended time in an order made on 21 February 2018. On 26 February, respondent's notices were filed by the two respondents.
12. While the appeal was awaiting determination in this court, an application in the parallel possession proceedings in the County Court for permission to appeal was entertained by HHJ Kramer on 8 March 2018. He gave a reserved judgment on 12 March 2018. He refused permission to appeal. He did not determine the level of the rent arrears payable by the appellant, a matter that had been stayed pending the hearing the application for permission to appeal. In addition, he decided that the suspension of a warrant for possession should come to an end on 10 April 2018.
13. Pausing there, that decision shows that the first respondent included within its possession claim a monetary claim for what are called mesne profits, representing the notional rent that would have been payable had the occupation been lawful. Although the stay of enforcement of the possession order remained in place until 10 April 2018, a week ago, the appellant has in the parallel judicial review proceedings (assisted by myself temporarily in the course of managing these proceedings) managed to stay in occupation of the property. Interim relief is in place until tomorrow permitting that, subject to further order.
14. In the case stated the question for the High Court is as follows:

'Where, pursuant to EPA 1990, ss. 82, a complaint is made to a Magistrates' Court in respect of premises alleged to amount to a statutory nuisance as defined in ss. 79(1)(a) can a person only be a "person aggrieved by the existence of [that] statutory nuisance" for the purpose of EPA 1990, ss. 82(1), and thus have locus to make a complaint, if they have some form of interest in the premises?'

15. The provisions of the 1990 Act I have mentioned are successors to earlier ones in the Public Health Act 1936, in particular section 99 under which a number of cases cited to me were decided. It is not disputed that the approach of the court in considering whether a person is a 'person … aggrieved' for a particular statutory purpose depends both on the statutory context and the factual context, in accordance with the exposition of Lord Reed in Walton v The Scottish Ministers [2012] UKSC 44, [2013] PTSR 51, at [83]ff, reviewing earlier authority, notably the judgment of Lord Denning in Attorney-General of the Gambia v N'Jie [1961] AC 617, 634 (PC) and that of Lord Fraser in Arsenal Football Club Limited v Ende [1979] AC 1, 32, among other cases. The same contextual approach can be found in the entries for the phrase 'person aggrieved' in Stroud's Judicial Dictionary, 9^th Edition (2017) and Jowitt's Dictionary of English Law, 4^th Edition (2015).
16. In the 1990 Act, the relevant provisions are those already mentioned. Section 79(1) states what matters constitute statutory nuisances and they include relevantly for this case at (a) 'any premises in such a state as to be prejudicial to health or a nuisance'; at (g) 'noise emitted from premises so as to be prejudicial to health or a nuisance'; and at (ga) 'noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street … .' Those were the matters complained of by the appellant.
17. Local authorities are equipped by various provisions, which I need not recite, with public powers to serve abatement notices, which must be obeyed on pain of criminal proceedings. By section 79(7) prejudicial to health means 'injurious, or likely to cause injury, to health'. By section 82(1) a magistrates' court 'may act under this section on a complaint … made by any person on the ground that he is aggrieved by the existence of a statutory nuisance'. By section 82(2):

'If the magistrates' court … is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises or, in a case of a nuisance within section 79(1)(ga) above, in the same street … the court … shall make an order for either or both of the following purposes-

(a) requiring the defendant … to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant … within a time specified in the order, to execute any works necessary to prevent the recurrence;

and, in England and Wales, may also impose on the defendant a fine … .'

21. By section 82(6):

'Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of.'

22. Although I do not have details I infer that such notice may have been given in this case. By section 82(8), contravening a requirement or prohibition imposed in an order under subsection (2) is an offence. That is subject to a statutory defence under section 82(9) where a person can 'prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance'.

18. By section 82(12):

'Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint or summary application, then, whether or not at the date of the hearing it still exists or is likely to recur, the court … shall order the defendant … (or defendants … in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court … considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.'

19. Ms Polimac for the appellant submitted that the wording of section 82(1) of the 1990 Act leaves no doubt that a person can be 'aggrieved' whether or not enjoying any proprietary interest in the premises in question. She pointed out that some instances of statutory nuisance are not dependent on occupation of the premises at all; for example, a statutory nuisance could arise on the highway. She relied on various cases to support her proposition that the statutory purpose is to protect ordinary persons against bad housing management, to require abatement of statutory nuisance and to provide effective remedies for those affected.

25. I do not propose to go through all the cases cited to me. Ms Polimac placed particular reliance on Waller LJ's judgment in Lambeth London Borough Council v Stubbs (1980) 89 LGR 650, DC; the decision of Ackner J (as he then was) in Turner v Secretary of State for the Environment (1974) 28 P&CR 123; and Sedley LJ's observation in Quigley v Liverpool Housing Trust [2000] EHLR 130, at the end of his judgment, that these statutory provisions 'serve as a very valuable protection both against bad housing management and for the protection of public health among, in general, the very poorest people in this country.' She also submitted that the question of standing arises at the date the complaint is made and that it is sufficient if a complainant is aggrieved in the ordinary sense of the word.

20. For the respondents Mr Fowler, tacitly supported by Ms Vodanovic, countered those arguments as follows. He submitted that the cases relied on by the appellant did not bear on the question in dispute here, namely whether a person in unlawful occupation of premises can be aggrieved for the purposes of bringing a complaint under section 82(1). He pointed out that in Lambeth London Borough Council v Stubbs there was no issue as to standing since the complainants were, when the proceedings began, in lawful occupation of the premises in question; and that in ex parte Sidebotham (1880) 14 Ch D 458, the court had held (per James LJ at 465) that:

'… the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something'.

21. Mr Fowler commended that narrow approach as appropriate to the present statutory context in order to avoid a situation in which unworthy persons such as squatters or busybodies could vex or harass property owners with a litany of complaints. I was also referred to two other cases worthy of mention, Sandwell Metropolitan Borough Council v Bujok [1990] 1 WLR 1350, HL, and Birmingham District Council v McMahon (1987) 19 HLR 452, DC. In the latter case, Kennedy J at 455 agreed with the propositions that 'in order to determine whether an informant is a person aggrieved within section 99, it is necessary first to identify the nuisance' and 'there is no reason why a whole building cannot be in such a state as to be prejudicial to health and hence a statutory nuisance'.
22. In the same case, he rejected (at 456) the proposition that 'the state of the building as a structure, by generating damp in the dwellings in it, was prejudicial to the health of those living there'. He decided that 'it was not the state of the block as designed, constructed and weather which was prejudicial to the health of any individual flat dweller, but the condensation and the mould on the walls of the flat in which he or she lived' and:

'[i]t was that personal link between the danger of health and the person exposed to the danger which, in my judgment, would have entitled each respondent separately to describe himself for the purposes of section 99 as a person aggrieved by a statutory nuisance, namely, condensation and mould growth on the walls of his or her flat.'

23. Mr Fowler submitted that while it was not necessary for a person to have a proprietary interest in the property in question in order to be a person aggrieved in this context, the person must have some personal right to occupy it. Thus, he said, the children of tenants in lawful occupation would qualify but subtenants renting, even if in good faith, in breach of a covenant against subletting in the home would not; nor, he argued, would a pure squatter who had come to the defective premises without permission.
24. Mr Fowler allowed that a bare licensee about to be served with a notice to quit that had not yet been served at the date of the complaint, would qualify. As for a tenant not in physical occupation of the property, he argued that such a person would normally qualify as a person aggrieved, but subject to a fact specific examination of the context.
25. I come to my reasoning and conclusions. In my judgment, none of the cases cited to me provides a clear and conclusive answer to the question I have to decide. The complaints here relate to the appellant's occupancy of the property, i.e. Flat 12. I do not read the two complaints as relating to all the almshouses at the site. The reasoning in Birmingham District Council v. McMahon, an unusual decision which I regard as turning on its particular facts, is therefore not in point here.
26. Next, I make the following observation. The written decision of the magistrates' court included the proposition that 'because Mrs [sic] Watkins has no right to remain on the premises she would not be able to prove that the nuisance that she is complaining about exists as of now'. That proposition is plainly not literally correct. She might in principle be able to prove the nuisance whether in the premises lawfully or unlawfully, and whether or not in the premises at all.
27. What the magistrates must have meant, in order to make sense of that passage, is that she should not be permitted to prove the nuisance, having no right to remain on the premises. Although the phrase "would not be able to prove" is an odd use of language, the court below must have been accepting Mr Fowler's proposition that some kind of right to occupy is needed to confer standing; and must have rejected the proposition that Ms Watkins had any such right, since District Judge Malik's deadline for vacating the property having (on 1 December 2017) expired 10 days before the hearing before the magistrates.
28. The next point is an obvious one: it is not sufficient for a person merely to be subjectively aggrieved about the state of particular premises. Such a person might come across the premises by chance on a visit from a region hundreds of miles away, and might become upset and, in ordinary language, aggrieved at their condition. The person's subjective feeling of being aggrieved would not suffice for standing. That is clear from the references in the authorities to busybodies and persons interfering in things that do not concern them.
29. I bear in mind that this legislation was enacted in the public law sphere and is not part of our landlord and tenant law. The predecessor provisions in the Public Health Act 1936 make this particularly clear. The statutory scheme must be approached in that light. I go back to the wording of section 82(1) of the 1990 Act. The magistrates' court 'may act under this section on a complaint', but only if the complaint is 'made by any person on the ground that he is aggrieved by the existence of a statutory nuisance'.
30. Although section 82(1) states that the court 'may act' in those circumstances, section 82(2) then requires that it 'shall' make an order if 'satisfied that the alleged nuisance exists', etc. Where jurisdiction is conferred by subsection (1) and the court is satisfied the nuisance exists, it has no discretion to withhold relief and must make an order. The wording of section 82(1) makes clear that the issue of the court's jurisdiction arises when the complaint is made.
31. The court must examine the nature of the complaint made and the context in which it is made to determine under section 82(1) whether it 'may act under this section'. I agree with all counsel that the question of standing must be considered at the point where the complaint is made and that if the complainant has standing at that point it is not lost by subsequent developments. In this case, the complaints were made before District Judge Malik made his order for possession in the contested possession proceedings.
32. During the course of argument, two forms of possible abuse of the statutory provisions were identified. On the one hand, a landlord might be tempted to use the expedient of eviction in an attempt to avoid the statutory duties under the 1990 Act to keep premises in good repair. On the other hand, a current or former tenant or licensee, or someone in unlawful occupation, might resort to the expedient of a statutory complaint in an attempt to avoid lawful eviction.
33. I think the spectre of such abuse is more apparent than real. If a person properly brings a complaint as a person aggrieved, evicting or attempting to evict the complainant will not avail the landlord because it will not deprive the complainant of standing to bring the complaint. Standing will have been established at the start of the case and will remain. I agree, in that respect, with Ms Polimac's invocation of Waller LJ's observation in Lambeth Borough Council v Stubbs that premises may be injurious to health even if unoccupied.
34. The second form of potential abuse is that of an occupant seeking to outflank eviction by bringing a statutory complaint under the 1990 Act. But by making such a complaint, the complainant can gain no better right to occupy premises than she would have if the complaint were not made. Making the complaint does not enhance any right to occupy the property in question, nor undermine any right of the person complained against to evict the complainant by obtaining an order for possession.
35. With those observations in mind, I come to the question at the heart of this case, namely the scope of the phrase 'person … aggrieved' in the present statutory context. In my judgment, the question is always one of fact and degree; but ordinarily, a person in actual occupation when the complaint is made would be aggrieved for the simple reason that she is occupying the premises and at risk of prejudice to her health if they are in a state that constitutes a statutory nuisance.
36. Having said that, a person in actual occupation might in an unusual case be treated as a mere busybody and not a person aggrieved. For example, the grievance might be found not to be genuine if a complaint were made for obviously tactical or abusive reasons; for example, in the full knowledge that the property in question is about to be demolished; or, possibly, where the occupier is shown to be about to leave the property permanently and has no genuine concern about its condition.
37. I do not think that this is such a case. Here, the appellant when she made her complaints to the magistrates had not yet been ordered to vacate the property. She was disputing (and in the judicial review proceedings continues to dispute) the first respondent's proposition that she was a trespasser. It is not said that she was disputing that proposition in bad faith when she made her complaints. She was withholding rent, but the claim against her that was pending when she made her complaints, included a claim for the equivalent of rent in respect of her occupation, unlawful though the first respondent said it was.
38. In addition, if there was any tactical element to her complaints, which I doubt, it will avail the appellant nothing. She will have to leave the property very soon unless she meets with success in her hitherto unsuccessful judicial review permission application. I have no difficulty with the proposition that though her victory may be pyrrhic as regards her personal interests, the complaints can survive and enure for the benefit of subsequent occupiers or the public. Where, as here, the legality of occupation is in dispute when the complaint is brought, the magistrates should not have to decide that issue, which is the province of the county court, in order to determine standing.
39. Nor do I accept that a complaint brought by a person aggrieved with standing to make it, cannot pursue it to its conclusion on the basis that the proceedings become academic if and when she moves out. The premises, as I have said, may remain injurious to health. If they are, the relevant local authority should also act under section 80 of the 1990 Act, but I do not think there should be any need to await that happening. It might not happen. There should be no need to await an abatement notice from a relevant local authority if the magistrates' court is already seised of a properly made complaint.
40. I therefore do not accept, in the present statutory context, that the narrow reading of 'person aggrieved' alluded to in the Sidebotham case is appropriate here. The statutory scheme itself recognises in section 82(12) that the premises may have been put right between the complaint and the hearing. The claim nonetheless survives, as that subsection makes clear, for the purpose of enabling compensation to be awarded for expenses properly incurred.
41. As for the example of squatters who come to defective premises without permission, I accept that it is probable they would properly be regarded as mere busybodies, subject to an examination of the specific facts. If they were tolerated to some degree by the landlord, they might be found to have standing but would doubtless be refused compensation and costs.
42. For those reasons, I will answer the question asked by the magistrates' court as follows. Whether a complainant is a 'person aggrieved' for the purposes of section 82(1) of the 1990 Act is always a question of fact and degree. It is normally, although not necessarily in every case, sufficient for a complainant to be a 'person aggrieved' if the complainant is in actual occupation, whether or not lawful occupation. If the legality of the occupation is a matter of bona fide dispute at the time the complaint is made, then it is likely, though not axiomatic, that the complainant will be found to be a person aggrieved.
43. I will set aside the decision of the magistrates' court and remit the matter to a differently constituted magistrates' court. The appeal is therefore allowed.
End of Judgment Judgment based on transcript of a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com
(This transcript has been approved by the judge)