R v Bristol City Council, Ex parte Everett (Everett, Ex parte)

Premises are not prejudicial to health under section 79 of the Environmental Protection Act 1990 merely because their condition creates a risk of accidental physical injury. The statutory nuisance regime addresses disease and ill-health, rather than physical danger standing alone.

The language must be construed in its legislative context. Parliament repeatedly re-enacted expressions which had long formed part of sanitary legislation and had received a settled judicial interpretation. The principle that legislation is always speaking cannot extend an enactment beyond that legislative purpose. Physical dangers in buildings may instead fall within distinct statutory regimes concerned with dangerous premises.

A local authority served an abatement notice requiring the owner of a terraced house to replace its steep internal staircase. The tenant later experienced difficulty using the staircase after a back injury. Having received legal advice that an excessively steep staircase could not constitute a statutory nuisance, the authority withdrew the notice.

Richards J dismissed the tenant's application for judicial review: [1998] 3 All ER 603. He held that premises presenting only a risk of accidental physical injury could not fall within section 79(1)(a) of the Environmental Protection Act 1990. Alternatively, he held that the authority possessed and had lawfully exercised an implied power to withdraw the notice.

The tenant appealed. The principal issue was whether premises likely to cause accidental bodily injury were thereby injurious, or likely to cause injury, to health within sections 79(1)(a) and 79(7).

1. Appeal dismissed unanimously. Mummery LJ and Buxton LJ delivered reasoned judgments. Hirst LJ agreed with both.

2. Per Mummery LJ, section 79(1)(a) of the Environmental Protection Act 1990, read with section 79(7), does not extend to premises whose condition creates only a likelihood of an accident causing physical injury. Part III is directed to injury to health in the sense of disease or ill-health. A steep staircase and its attendant danger of a fall therefore could not constitute a statutory nuisance on that ground.

3. The statutory language had repeatedly appeared in sanitary and public health legislation since the nineteenth century. Great Western Railway Co v Bishop (1872) LR 7 QB 550 and Coventry City Council v Cartwright [1975] 1 WLR 845 treated the regime as protecting health against disease and similar conditions, rather than preventing accidental bodily injury. When Parliament restated the same expressions in 1990, it probably intended similar cases to produce the same result and left physical danger to other statutory powers, including those under the Building Act 1984.

4. Buxton LJ additionally considered the proposed wider meaning unnatural as a matter of ordinary language. The references to animals prejudicial to health and the separate statutory regimes for nuisances and dangerous buildings reinforced the distinction between ill-health and physical danger. Although borderline cases might arise, that possibility did not affect the general rule that physical injury standing alone does not engage section 79.

5. The always-speaking principle could not be used to depart from the long-standing legislative purpose. Any gap in protection was a matter for Parliament.

6. The validity and exercise of an implied power to withdraw a valid abatement notice did not require decision. Mummery LJ nevertheless stated that, had the principal conclusion been wrong, the authority clearly possessed that implied power and had exercised it lawfully.

• Court of Appeal: The tenant's appeal was dismissed unanimously. The court upheld the conclusion that the staircase could not constitute a statutory nuisance under section 79(1)(a) of the Environmental Protection Act 1990.
• High Court, Queen's Bench Division: Richards J dismissed the application for judicial review: [1998] 3 All ER 603. He held that the risk of accidental physical injury fell outside section 79(1)(a). Alternatively, the authority had lawfully exercised an implied power to withdraw the abatement notice.