Ferko v Ealing Magistrates Court & Ors (2024) EWHC 2592 (Admin)

This was an appeal by case stated to the High Court from a decision of Ealing Magistrates Court on a statutory nuisance/section 82 Environmental Protection Act 1990 prosecution. It is also a remarkable illustration of just how wrong the Magistrates can get such a prosecution, as well as being a helpful primer to constituent elements of an EPA prosecution case.

This was the second hearing in the appeal. The first, which can be found here, was entirely taken up with correcting and rephrasing the case stated that had been sent by the Magistrates, which remarkably contained ‘after the event’ findings and reasonings which were not in the Magistrates’ original decision, as well as asking the wrong questions. The second hearing was nearly a year later…

Mr Ferko was the assured shorthold tenant of a flat. The prosecution was brought against the owners of the flat, and the property management company which was the intermediate lessee of the flat. In January 2022, Mr F’s solicitors wrote to the Respondents by way of notice under section 82 and 79 EPA, stating that they were responsible for:

a) A nuisance, due to the presence of damp and mould in the property;
b) Condensation associated mould growth in the back addition bedroom, bathroom, kitchen and living room;
c) A damp stain to the landing ceiling adjacent to the back addition bedroom;
d) A defective bathroom extractor fan which was exacerbating condensation and contributing to mould growth in the property;
e) A lack of insulation in the loft which was exacerbating condensation and associated mould growth;
f) A failed sealed glazing unit to the landing window.

Nothing was done and the information was laid. The defendants pleaded not guilty, so it went to trial.

There were two expert reports in evidence, from March and July 2022. The first report stated

The occurrence of condensation and the associated mould growth is dependent upon a number of factors and the most important of these are the amount of moisture generated within the dwelling, the provision for ventilation and the use made of it, the thermal properties of the structure and the provision for space heating and the use made of it. An imbalance in these factors can lead to condensation and mould growth and with respect to this dwelling I advise causal factors include;
i) inadequate insulation to the back addition bedroom left wall which is not dry-lined so it will be a colder wall, the dry-lined walls are not significantly mould affected.
ii) some areas of missing or disturbed loft insulation, the ceiling surfaces under these areas will be colder which increases the condensation risk.
iii) inadequate ventilation, in particular the bathroom extractor fan is defective and there is window disrepair which means the windows will be difficult to open and close and ventilation is likely to be reduced.”
(…)
“7.1 There is a well documented association between the dampness and mould growth and respiratory ill-health and therefore I considered this dwelling to be prejudicial to health. If a dwelling is not free from dampness prejudicial to the health of the occupants then it may also be considered unfit for human habitation.
8.2 There is a well-documented association between dampness, mould growth and the proliferation of house dust mites and respiratory illness. Therefore I am satisfied the condition of the dwelling was prejudicial to health and a Statutory Nuisance as defined by Section 79 (1)(a) of the Environmental Protection Act 1990.
8.3 Having regard to the Homes (Fitness for Human Habitation) Act 2018 I consider that this dwelling was unfit for human habitation because it is not free from dampness prejudicial to the health of the occupants.”

The expert also gave evidence at trial, as did the tenant, whose witness statement was in evidence, including photos and whatsapp messages of notice of the mould problems.

Somewhat surprisingly, the defendants submitted that there was no case to answer. Even more surprisingly, the Magistrates agreed and discharged the defendants. THis was stated to be on the basis of ‘insufficiency of evidence’ and (in relation to the first defendant)

We have also heard from the Prosecution expert Mr Lawrence, had benefit of reading his report and also considered his oral evidence, we are aware that burden lies with the prosecution to prove their case to the criminal standard which is Beyond Reasonable Doubt, Mr Lawrence gave evidence about relationship between moisture and mould. And whilst he made references to the bathroom fan that did not work, indicated that bedroom wall was not dry-lined, and windows were not been able to open or close easily, Mr Lawrence also confirmed that there is no significant structural disrepair and all the mould caused by the condensation. He said that the damp on the ceiling did not contribute to the condensation. We believe that his report did not provide conclusive evidence regarding damp and mould and whether what has been referred as a structural defect was only factors contributing to the mould or there were significant factors attributable to the damp and mould in the flat.

Mr F appealed.

On the questions in the thoroughly amended case stated.

Were we wrong to announce in court in relation to each Defendant that we found that there was no case to answer without giving further reasons as to why we had formed that conclusion?

The High Court said yes, this was wrong in law as against the second and third defendants for inadequacy of reasons given.

Was it lawful for us to provide additional reasoning for our judgments (1) by adding text to our judgment after the hearing and/or (2) by providing the text contained at parts 7 and 8 of this case stated?

The answer to this question is ‘no’; where magistrates are required to, but fail, to provide substantive reasons for a decision when it is delivered then it is procedurally improper to seek to provide reasons later. In such circumstances the particular mischief of retrospective reasoning is that it may be based upon post-rationalisation or may appear to be.

In relation to determining causation as to whether the Respondents were responsible for the statutory nuisance at the premises:

i. Was it necessary in law for the Prosecution to establish that “but for” the conduct of a defendant a statutory nuisance would not arise or would have been sufficient for the Prosecution to establish that a defendant’s act or default was such that it materially contributed to the statutory nuisance arising?

The High Court replied

The answer to the question is ‘no”, causation under the statutory provisions does not involve a “but for” test. The EPA does not explicitly require “but for” causation to establish a statutory nuisance under section 85(1)-(4). Causation is a requirement but a defendant maybe liable for a statutory nuisance even if they are not the sole cause of the nuisance, as long as they have made a significant or material contribution to it. The mere fact that a tenant may have contributed to a statutory nuisance does not exonerate others who have also caused the nuisance. The tenant’s conduct is only relevant insofar as it casts doubt upon the culpability of others or suggests that the tenant was the sole source of the nuisance.

The Magistrates had set the wrong test.

ii. Were we entitled to conclude based upon the evidence that we had read and heard, that the causal link between the mould and condensation and the state of the property had not been established and so there was no case for the respondents to answer?

The High Court said no, firmly. Such a conclusion was wrong in law and on the evidence.

Mr Lawrence attributed mould and condensation to inadequate ventilation and inadequate insulation; the latter attributable to a failure to dry line one of the walls and the absence of loft insulation; the former to a broken, bathroom fan and defective windows. This undoutedly established a connection between the condition of the building and the construction or maintenance of its fabric, for which the Defendants were responsible, and the appearance of mould and condensation. There was therefore expert evidence to support the prosecution case which could not sensibly be described as tenuous or weak.

It would have been sufficient for the prosecution to establish that a Defendant’s act or default was such that it materially contributed to a statutory nuisance. The Magistrates’ conclusion that the expert made no causal link between the property issues (fan, windows, insulation) and the mould was incorrect. Mr Lawrence explicitly stated that these factors were causal factors in relation to condensation and mould growth; there was no foundation for rejecting that evidence, which was uncontested, at the close of the prosecution case.

(…)

There was ample unchallenged evidence which demonstrated the defendants’ knowledge of the damp and mould problem. It would have been evident on inspection. The expert’s evidence clearly established that condensation occurred despite the appellant’s normal use of the property and that there was adequate heating. That evidence also directly contradicted any express or implicit case that the appellant was the sole cause of the problems.

Were we entitled to conclude in this matter that the fact that there was no structural disrepair at the property would prevent a tribunal from finding that the Respondents were responsible for the statutory nuisance at the premises?

You may be able to guess the answer given by the High Court…

The issue was not whether there was structural disrepair, it was whether the matter identified is ‘prejudicial to health or a nuisance’. The presence of otherwise of structural disrepair was not a threshold question.

The expert’s evidence clearly set out his opinion as to the cause of the condensation and mould. THis did not depend on whether the causes could be said to be ‘structural or otherwise.

Notice by the tenant did not require a diagnosis of the cause, just notification of the problem.

Was it correct in law for us to not consider or address the fact that the property was unfit for human habitation in determining whether the Respondents were responsible for the statutory nuisance at the premises?

The High Court found:

It was an implied statutory condition that the property let to the Claimant should be fit for human habitation during the term of the lease. Whether the property met this requirement had been raised clearly in the prosecution case. Mr Lawrence’s opinion in his initial report was that, having regard to the Homes (Fitness for Human Habitation) Act 2018, the premises were unfit for human habitation.

The Magistrates fell into error in focusing solely on the Defendants’ potential breach of repairing obligations. The property’s condition was capable of constituting a breach of the implied statutory obligation under section 9A of the Landlord and Tenant Act 1985. Thus a reasonable tribunal properly directing itself on the law could have concluded on the prosecution evidence that the defendants had failed to meet this standard of fitness for human habitation. Whilst magistrates may rely on their own experiences when determining certain factual questions, when they are assessing whether premises are detrimental to health, they require expert evidence. Magistrates cannot arbitrarily replace expert opinions with their own judgments when deciding such a question (see Patel v Mehtab (Queen’s Bench Division) 5HLR 78).

So, no, it was not correct in law to fail to consider fitness for human habitation in the light of the case advanced by the appellant as prosecutor and the evidence he relied on.

To what extent was it necessary, if at all, for the Applicant to provide notice of particular defects at the premises prior to providing a notice pursuant to s.82(6) EPA for the Respondents to be held responsible for the statutory nuisance at the premises?

A notice did not require a schedule of defects or specification of works, Pearshouse v Birmingham City Council (1999) Env LR 536. The purpose was to enable the receipient to inspect and remedy the complaint.

A notice of a statutory nuisance must provide sufficient details to inform the landlord of the issues requiring attention, but it does not need to be overly technical or comprehensive. The primary purpose of the notice is to enable the landlord to inspect the property and take appropriate corrective action. The notice should broadly outline the nature of the complaint, such as “dampness in the premises.” Even if the tenant misidentifies specific defects or omits significant ones, the notice may still be valid if it adequately conveys the general nature of the nuisance. That requirement was more than satisfied in this case.

And finally

Whether it was correct at law for the Magistrates to conclude that there was no case to answer in relation to each Defendant given the evidence available to the tribunal?

To which the only possible conclusion open to the High Court, given the above, was no.

The undisputed evidence established that the defendants had been aware of the persistent damp and mould problems in the property over an extended period, and certainly over 21 days before the information was filed.

The expert evidence relied on by the prosecution identified the root causes of the mould and damp as inadequate insulation, a non-functioning extractor fan, and the poor condition of the windows. These were matters for which the Defendants were responsible, either as owners or landlords and in respect of which they were subject to contractual and statutory obligations.

The expert evidence was to the effect that that the mould and damp constituted a statutory nuisance, posing a significant health risk to the occupants. The only reasonable conclusion for the Magistrates was to allow the case to proceed because there was a case for the Defendants to answer.

Decision of the Magistrates set aside and a new trial at Magistrates’ Court ordered.

Comment

The High Court is clearly right on all counts but this does all rather highlight the question of whether matters needing this degree of being able to grasp and understand the technical issues involved, let alone the legal complexities, should be in front of of the Magistrates in the first place, let alone as a private prosecution (which will be unusual and uncomfortable for the Magistrates Court). Clearly the Magistrates here fell back on vague ideas about disrepair and landlord’s section 11 obligations, and whose ‘fault’ the problem is, rather than grappling with the evidence and the law.

Poor Mr F will be heading back for trial, again, three years after that first (completely sufficient) notice.