Who can complain of statutory nuisance?

The question in the rather wonderfully titled Watkins v Aged Merchant Seamen’s Homes & Anor (2018) EWHC 2410 (Admin) was whether a former licensee who remained in occupation after a possession order could bring a complaint of statutory nuisance under Environmental Protection Act 1990 and ‘prove’ the condition of the property at the time of the hearing in the Magistrates Court. There are all sorts of things flying about in the background of this judgment, including off stage judicial review proceedings, but the key issue is what sort of status an occupier has to have to bring (and continue)  an EPA 1990 prosecution.

There is clearly a lot of other things going on with the facts in this matter, including ongoing judicial review proceedings as to the status of Ms Watkins’ occupation – a licence or a tenancy – but this is an outline of the relevant facts for the issues.

Ms W occupied an almshouse owned by the respondent charity. For present purposes, this was under a licence. In January 2017 Aged Merchant Seaman (AMS), served notice to quit, expiring a month later in February 2017. Ms W began withholding rent.

In September 2017, Ms W laid an information before the Magistrates Court complaining of a breach of section 79 Environmental Protection Act 1990 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)’.

The hearing was listed for December 2017. Meanwhile AMS had brought possession proceedings. In November 2017, a possession order was made requiring Ms W to give up possession on 1 December 2017 (before the Mags hearing). Ms W remained in occupation after 1 December.

At the Magistrates hearing of the EPA prosecution, the magistrates dismissed the case, stating

‘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’.

Ms W appealed by way of case stated. In the meantime, her appeal against the possession order was dismissed, and the suspension of warrant pending appeal would end in April 2018.

So, the question for the High Court was stated as:

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?

The High Court distinguished Birmingham District Council v McMahon (1987) 19 HLR 452, DC, in which Kennedy J found, in relation to a block of flats

‘it 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.’

What was at issue here was a specific property, not all the almshouses.

It was common ground that the question was standing when the complaint was made.

The way the Magistrates had put the case did not make sense:

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.
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

But, turning to the core issue of who could, as occupier, bring a complaint to the Magistrates under s.79 EPA 1990

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.
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.

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.

Moreover, the court did not

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.

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.

So, the answer to the Magistrates question was

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.

Appeal allowed.

Comment

This makes sense for statutory nuisance (as opposed to common law nuisance, which is tied to interest in and enjoyment of the land). Occupation is very likely required, but not an interest in land, or even ongoing lawful occupation after the complaint. Whether this would extend to a person who had entered as a trespasser and remained a trespasser, we will have to see, though my feeling it that it is unlikely.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Nuisance.

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