Statutory Nuisance and Residential Property

Environmental Health Problems in Housing

Stephen Battersby, John Pointing

• Editore: Routledge
• Anno: 2019
• ISBN:
  9780429807473
• Edizione: 1
• Argomento: Derecho
• Categoria: Ley de vivienda y urbanismo

Statutory Nuisance and Residential Property: Environmental Health Problems in Housing examines the statutory nuisance provisions in the Environmental Protection Act 1990 pertaining to the condition of premises and related problems in housing and compares these with the provisions of the Housing Act 2004. The book discusses the separate development of statutory nuisance and housing legislation in an historic context, which provides a useful basis for the understanding and interpretation of legislation and the different remedies available today. The work includes a chapter on actions by "persons aggrieved" using section 82 of the Environmental Protection Act 1990 and also considers remedies provided in the Anti-social Behaviour, Crime and Policing Act 2014.

This book:
• investigates housing problems in the context of the relevant law; and
• demonstrates how to use the legal framework appropriately and be able to decide on the most appropriate provision for dealing with environmental health problems associated with residential property.

This is an essential and practical book for environmental health and housing professionals, as well as for advisers and lawyers in the private and public housing sectors.

1
Introduction

1.01 The work of environmental health and housing practitioners, including advisers, often means that they are facing problems and issues that potentially have several routes by which a remedy can be found. It is a general claim that environmental health officers (EHOs) or environmental health practitioners (EHPs) are public health “problem solvers”. Practitioners working for and on behalf of local authorities need to have a legal basis for any actions to resolve these problems; at the same time, there are overlaps and contradictions between different pieces of legislation. This can lead to dilemmas as to what is the most appropriate course of action. It can also lead to confusion and indeed errors when aspects of the different legal provisions become combined or confused and the correct procedure not followed. In many, if not most cases, it is not possible for a practitioner to “read across” from one legal provision to another. This means that the practitioner and environmental health manager needs a clear understanding of the relevant legal provisions both to ensure that the appropriate basis for action is chosen but also to ensure that there is no mixing of different legal procedures (although, as will be shown later, there is nothing to prevent the different provisions being used for different problems in the same premises, where appropriate).

1.02 It has also often been argued that EHOs choose to resolve problems by persuasion and by taking an “informal” approach. Whatever the merits of this – and for residential property there will be a concern that this approach can leave vulnerable tenants exposed to unresolved issues for long periods – should such efforts fail, then recourse to legal remedies will become necessary.

1.03 This monograph is aimed at helping practitioners investigate problems associated with residential property, in particular, conditions in and around dwellings. It also aims to help practitioners use the legal framework appropriately and to be able to choose the most appropriate provision for enforcement. It also provides legal practitioners and housing advisers with an overview of the relevant legal provisions.

1.04 One might ask, why is this work needed – given that since the mid-nineteenth century, EHOs have traditionally used statutory nuisance to deal with a range of problems, including those in and around premises? For a start it is apparent that the housing market has undergone substantial changes in recent years. For example, since 2011, the number of households in the private rented sector (PRS) has increased by about 30%, and the private rented sector is now substantially larger than the social housing sector.¹ This change has occurred to such an extent that it could be argued that parts of the PRS fulfil some of the same functions as the social housing sector. The distinction is becoming blurred, given that local authorities can meet their duties under homelessness legislation by way of a PRS offer, which may not even be in the same borough.

1.05 At the same time, a recent study² has found that a surprisingly large minority of local authorities do not employ any qualified EHOs for inspecting dwellings. In many authorities, even where EHOs are employed, other officers carry out much of this work. The qualifications of these non-EHOs, their experience and knowledge are unknown and are likely to vary from council to council. Whether or not these less qualified officers are working under the direction of an EHO who understands the legal provisions available to them, this monograph aims to help them in practical ways. It is also hoped that it will help others who advise on housing problems. Action is required to address poor housing conditions, for it has been estimated that poor housing costs the NHS in England £1.4 billion per year,³ and this is without including “exported” and social costs due to days off work or out of school. This figure is probably an underestimate as it takes little account of the effects of poor housing on mental health and wellbeing.

1.06 An analysis of statutory nuisance is provided in this work. Although an old concept, it has value in certain situations, though it is apparent that many environmental health practitioners are not using or are unaware of the statutory nuisance provisions provided in Part III of the Environmental Protection Act 1990 (EPA 1990). In particular, s.79(1)(a) of the EPA 1990 is important for dealing with nuisance and health risks associated with premises, particularly domestic premises. An assumption is often made that any issue associated with housing is solely a matter for the Housing Act 2004 (HA 2004). But there is a clear overlap between this legislation and the statutory nuisance provisions of the EPA 1990 and related provisions. As an illustration of a “siloed” approach, there have been times when how a local authority dealt with a complaint depended on which department had received it. A selective policy on which legislation to use has subsisted even where EHOs have been employed in both “housing” and “environmental health” departments. EHOs employed in the former would think solely in terms of Housing Act remedies, whilst only those in the latter departments might consider whether statutory nuisance provisions should be used. Budget cuts and restructuring might have encouraged some changes to this situation, but the trend towards employing less qualified staff makes this monograph particularly timely.

1.07 The legislative background to this book is complicated. We start from the position that statutory nuisance has for many years been the only area of environmental health practice that explicitly addresses the problem of premises that pose a risk to health. Even when housing legislation introduced a definition of fitness (unfitness) in the 1950s, the standard of fitness did not mention health. It was down to the courts to determine what was meant by “reasonably suitable for occupation”. Nowadays, EHOs have the HA 2004, which in Part 1 is specifically concerned about how housing affects the health and safety of occupiers. So the question can arise, when domestic premises are considered to be prejudicial or a risk to health, which provision should be used? We will examine, therefore, how EHOs should consider how that decision can best be made and, more importantly, the procedural matters that need to be borne in mind in making such a decision. For both approaches, best practice requires starting with the collection of good-quality evidence. And this requires a proper inspection of the property to be made and a thorough investigation of its problems – even though only a non-intrusive inspection can be undertaken.

1.08 This work is different from other works that have considered statutory nuisance alone in that it focuses on one particular aspect, that of domestic premises.⁴ There will be other statutory nuisances that affect the residential setting, such as noise nuisance, which we also consider. Again, one must be careful to avoid mixing up regulatory approaches. Where a decision is made, for example, that noise emitted from premises amounts to a statutory nuisance, the local authority would be obliged to serve an abatement notice under s.80 of the EPA 1990 but could not serve a notice under the 2004 Act.

1.09 The statutory nuisance regime has the advantage that a “person aggrieved” by the nuisance, such as a tenant, may take their own action under s.82 of the EPA 1990. There is no equivalent route under the Housing Act. In this work, we will examine s.82 cases, some of which provide binding case law that EHPs have to bear in mind in carrying out their duties. Besides its capacity to deal with problems in the subject property, the statutory nuisance regime also allows enforcement action to be taken against the owner or occupier of a neighbouring property. If, for example, the source of dampness is the neighbour’s leaking gutter, then an abatement notice can be served on that neighbour as the person responsible for the statutory nuisance. There is no equivalent power on the face of the HA 2004.⁵

1.10 Despite the relevance of current legislation for the issue of health and safety risks in housing, there remain significant gaps in provisions to protect tenants and occupiers. A recent report from the Law Schools of Bristol and Kent Universities,⁶ following the Grenfell Tower tragedy, has suggested that the statutory nuisance provisions in s.82 of the EPA1990 relating to housing conditions should be repealed. A comprehensive reform of housing law is needed, they argue, which requires a clear focus on the health and safety of occupiers and visitors. This suggestion and its implications will be discussed in more detail later in this work.

1.11 It is necessary to have an understanding of the historical development of the legislation. This is particularly true of statutory nuisance because this has implications for interpreting the scope of provisions that originated when the first Public Health Act was enacted in 1848. The first two of the main chapters look briefly at the historical development of the law on housing conditions and statutory nuisance. We also consider more recent forms of statutory nuisance, such as those caused by noise and artificial lighting. This historical treatment helps to explain the differences in the legislative regimes governing statutory nuisance and housing and why they should not be confused.

1.12 Chapter 4 considers more specifically the idea of “nuisance” as a common law tort or wrong, and this leads into the analysis of what is meant by “statutory nuisance”. Here we discuss the distinction between the “prejudicial to health” and “nuisance” limbs of statutory nuisance in the EPA 1990.

1.13 The next two chapters discuss procedural and practice issues that arise from enforcing Part 1 of the Housing Act 2004 and Part III of the EPA 1990. These concentrate on dealing with problems associated with domestic premises and cover such topics as the investigation of complaints, the drafting and service of notices, defending appeals, and breach of notices.

1.14 In keeping with the tone of this work and trying to provide practical assistance to environmental health practitioners and others, Chapter 7 explores other remedies and powers that might be useful for addressing problems. Here we consider s.82 prosecutions by “persons aggrieved” under the EPA 1990 and the use of Community Protection Notices and injunctions made available by the Anti-social Behaviour, Crime and Policing Act 2014.

1.15 The penultimate chapter will look at how to resolve problems with residential property and will include examples of how things can go wrong and what can be done to avoid this. We also look at the differences (and similarities) in the powers available under the EPA 1990 and the Housing Act 2004. For example, where there is a problem of vermin in and around a property, the local authority has the option of using either of these Acts or even the Prevention of Damage by Pests Act 1949. So consideration needs to be given as to which power should be used as the basis for intervention.

1.16 The final chapter includes detailed case studies that illustrate the issues previously discussed and the dilemmas sometimes faced by local authority officers. Each case study provides a scenario, poses a number of questions, and finally provides some insight into possible solutions and responses. The aim here is to provide practical pointers as to how officers can decide on the best course of action when dealing with problems associated with domestic premises.

1.17 So this introduction explains the aims and structure of the monograph. We will also provide criticism of some current practices within local government and its approach to dealing with problems associated with residential property.

Notes

1 The MHCLG English Housing Survey Stock Condition Report reported that in 2016, of an estimated 23.7 million dwellings in England, 14.8 million (62%) were owner occupied, 4.9 million (20%) were in the private rented sector and 4.1 million (17%) were in the social rented sector.

2 Battersby SA, Private Rented Sector Inspections and Local Housing Authority Staffing Supplementary Report for Karen Buck MP (2018). Available at: www.sabattersby.co.uk/documents/Final_Staffing_Report_Master.pdf

3 Nicol S, Roys M, and Garrett H, The Cost of Poor Housing to the NHS – Briefing Paper (Watford: BRE Trust, 2015).

4 For a detailed analysis of statutory nuisance, see: Malcolm R and Pointing J, Statutory Nuisance: Law and Practice, 2nd edition (Oxford: OUP, 2011).

5 But see Wood v Kingston upon Hull [2017] EWCA Civ 364, in which Lord Justice Lewison said that: “(H)owever, the Deputy President’s overall conclusion that it was lawful for the Council to serve an improvement notice on Ms Peacock requiring her to carry out works to the ground floor flat (to address the hazard of fire in the flat above) was correct, although my reasoning has followed a different path”.

6 Carr H, Cowan D, Kirton-Darling E, and Burtonshaw-Gunn E, Closing the Gaps: Health and Safety at Home (University of Bristol and University of Kent, 2017). Available at: www.bristol.ac.uk/media-library/sites/law/Closing%20the%20gaps%20-%20Health%20and%20Safety%20at%20Home%20(amended).pdf

2
Historical development of statutory nuisance

Historical background

2.01 The origins of statutory nuisance date back to the Industrial Revolution in Great Britain as a regime for improving the public health conditions of towns and cities. The earliest legislation was enacted in the late 1840s and was intended as a short-term response to combat serious diseases, in particular outbreaks of cholera then occurring in major towns and cities. At the time, this legislation was controversial, and opposition to it was self-serving and based on a laissez-faire philosophy. The Economist spoke for those opposed to “state interference” in voicing its opposition to the Public Health Bill of 1848:

The bill is but the beginning of an attempt, under the pretence of providing for the public health, to regulate by legislation … every business in every town of the empire, just as working in factories and mines has been lately taken in hand by legislation … [Such legislation] will check enterprise and self-exertion; it will beget reliance on boards instead of reliance on self; and by weakening the intellect and...