Birmingham City Council v Oakley

Premises are in a state prejudicial to health under section 79(1)(a) of the Environmental Protection Act 1990 only where some feature of the premises is itself a source of infection, disease or illness. An inconvenient layout or the absence of a desirable facility does not suffice merely because the occupants’ ordinary use of the premises may create a health risk.

Legislation may be applied in the light of modern knowledge and social standards. That principle does not permit a court to enlarge the statutory concept beyond the meaning shown by its legislative history and context. Whether existing homes should be required to have washbasins near lavatories is therefore a matter for legislation, rather than an extended construction of the statutory nuisance provisions.

The respondent was a council tenant in a house whose ground-floor lavatory contained no washbasin and was separated from the bathroom by the kitchen. The magistrates found that users would have to wash in the kitchen sink or cross the kitchen, creating a risk of cross-infection. On a complaint under section 82 of the Environmental Protection Act 1990, they found a statutory nuisance and ordered alterations.

The Divisional Court dismissed the council’s appeal by case stated. The council appealed to the House of Lords. The central issue was whether the layout and absence of a conveniently accessible washbasin could place the premises in “such a state as to be prejudicial to health” within section 79(1)(a).

1. Appeal allowed by a majority of three to two. Lord Slynn of Hadley and Lord Hoffmann delivered the principal majority speeches. Lord Millett agreed with both. The magistrates’ order was set aside and the complaint dismissed.

2. Per Lord Slynn, the legislative history and statutory context showed that section 79(1)(a) of the Environmental Protection Act 1990 addresses premises containing a feature which is itself prejudicial to health. Examples include damp, mould, dirt, offensive accumulations, rats and defective drains. Structural alterations may be required to remove such a feature, but the need for alterations does not itself establish a statutory nuisance.

3. Per Lord Slynn, the lavatory, drain and washbasin were not defective. The health risk arose from a failure to wash, or from washing after passing through an area where food was prepared. The separation of the lavatory and washing facilities, although undesirable by modern standards, did not make the premises themselves prejudicial to health.

4. Per Lord Hoffmann, with Lord Millett agreeing, statutory language may be applied according to current knowledge and standards where the content of an existing concept changes. That principle cannot be used to substitute a concept broader than Parliament originally intended. The legislative history and the separate statutory regulation of sanitary facilities demonstrated that section 79(1)(a) concerned the unhealthy state of premises, rather than their layout or absent facilities.

5. Per Lord Hoffmann, imposing a general obligation to alter existing houses would create substantial public and private expenditure. In the absence of clear statutory language, that policy decision belonged to elected institutions. Lord Millett similarly considered that layout and required facilities were matters for building regulations.

6. Dissenting: Lord Clyde would have construed “state” broadly and objectively, taking account of the premises’ ordinary use. A layout or missing facility capable of causing illness could qualify. Lord Steyn agreed with Lord Clyde and considered that the statutory language did not support a distinction between layout and the state of premises.

1. House of Lords: By a majority of three to two, allowed the council’s appeal, set aside the nuisance order and dismissed the complaint.
2. Divisional Court of the Queen’s Bench Division: Simon Brown LJ, with Astill J agreeing, dismissed the council’s appeal by case stated and certified a question of general public importance.
3. Magistrates’ court: Found a statutory nuisance under section 79(1)(a) of the Environmental Protection Act 1990 and ordered the lavatory to be moved into the bathroom, with associated works.