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Premises prejudicial to health
The Environmental Protection Act 1990 gives a remedy to any person ‘aggrieved’ by a ‘statutory nuisance’. The Act defines ‘statutory nuisance’ to cover a range of matters. For people who live in defective premises, the most relevant of these is ‘any premises in such a state as to be prejudicial to health or a nuisance’.1s79(1)(a) EPA1990 Whether you qualify as a ‘person aggrieved’ is a question of fact and degree.
Severe damp, including condensation, is generally accepted as being prejudicial to health for the purposes of the Act. Loose or exposed wiring and draughty windows and doors are other examples.2But see R v Bristol City Council ex parte Everett 13 May 1998 - a dangerous staircase is not a statutory nuisance Health is distinguished from accidental physical injury and would cover, for instance, health problems triggered by gas leakage. There may be grey areas such as cracked electrical fittings which might result in electrical shocks.
A ‘nuisance’ is anything coming from neighbouring property which causes substantial interference with your use and enjoyment of your home.3National Coal Board v Neath BC [1976] 1 WLR 543
Local authorities have a duty to investigate complaints of statutory nuisance. The local authority may serve a notice requiring any ‘nuisance’ to be ‘abated’ – ie, put right. If the notice is not appealed against or complied with, the local authority can prosecute the person who was sent the notice and/or do the works itself. Where the offending landlord is the council itself, it may also be prosecuted under these provisions by you taking a private prosecution.
You can take your landlord to the magistrates’ court or, in Scotland, the sheriff court.4s82 EPA1990 Legal advice should be obtained. You must give 21 days’ written warning to your landlord that you are going to take proceedings. You then ‘lay an information’ at your local magistrates’ court giving details of the defective premises and why they are prejudicial to your health and/or that of any other occupier of the premises. In Scotland, the procedure is by ‘summary application’ at the local sheriff court.5r4 Sheriff Court Summary Application Rules 1993 No.3240 At the subsequent hearing, you must prove the existence of the statutory nuisance and that your landlord is responsible. Environmental health officers can give evidence of the existence of a statutory nuisance. Expert evidence on the state of premises is sufficient to find that premises are prejudicial to health, without having to prove that you are suffering from a condition. A doctor’s report explaining the danger to health may be used, and in some cases it may be useful to call the medical practitioner or other expert as a witness.
The proceedings in the magistrates’ court follow the rules for criminal procedure, and a finding that a statutory nuisance exists ranks as a criminal conviction6Herbert v Lambeth LBC (1991) The Times, 21 November 1991 – an outcome which most landlords will wish to avoid.
The court can make an order that your landlord must ‘abate’ the nuisance. The court has wide discretion over what work it may order a landlord to do,7Whittaker v Derby Urban Sanitary Authority [1885] LJMC 8 although it must be for abating the nuisance. As explained above, repairing obligations can be limited, so this kind of action can be useful if something additional, including improvements, is needed – in some cases courts have ordered the installation of central heating, double glazing and mechanical ventilators. Where a person contravenes any requirement or prohibition imposed by an order, a fine of up to £5,000 may be imposed, together with a fine at a rate of £200 a day for each day on which the offence continues after conviction.8s82(8) EPA1990
In England and Wales, the magistrates’ court can make a compensation order.9s35 Powers of Criminal Courts Act 1973 The order can be for up to £5,000 for things such as damaged belongings and discomfort and inconvenience, although only if the loss was suffered after you sent the 21-day notice.10R v Liverpool Crown Court ex parte Cooke [1996] 4 All ER 589 If a court refuses to make a compensation order, it must give reasons. In Scotland, the proceedings are civil, not criminal, and the court has no power to award compensation.
There is a small risk that you might have to pay the defendant’s legal costs if you lose,11s18 Prosecution of Offences Act 1985 so take legal advice before starting a prosecution. However, so long as the statutory nuisance existed at the time you started the court proceedings, you can ask for your reasonable costs to be paid by your landlord.12s82(12) Environmental Protection Act 1990 Also, lawyers can represent you in court on the basis that they will only be paid if the case is successful.13Thai Trading v Taylor [1998] The Times, 6 March 1998 Therefore, although financial assistance is not available, if you can find a lawyer who will take the case on such a ‘no win, no fee’ basis, then it need not cost you anything. Costs are at the discretion of the court.14Southampton City Council v Oddyseas (Op co) Ltd [2017] EWHC 2783
1     s79(1)(a) EPA1990 »
2     But see R v Bristol City Council ex parte Everett 13 May 1998 - a dangerous staircase is not a statutory nuisance »
3     National Coal Board v Neath BC [1976] 1 WLR 543 »
4     s82 EPA1990 »
5     r4 Sheriff Court Summary Application Rules 1993 No.3240 »
6     Herbert v Lambeth LBC (1991) The Times, 21 November 1991 »
7     Whittaker v Derby Urban Sanitary Authority [1885] LJMC 8 »
8     s82(8) EPA1990 »
9     s35 Powers of Criminal Courts Act 1973 »
10     R v Liverpool Crown Court ex parte Cooke [1996] 4 All ER 589 »
11     s18 Prosecution of Offences Act 1985 »
12     s82(12) Environmental Protection Act 1990 »
13     Thai Trading v Taylor [1998] The Times, 6 March 1998 »
14     Southampton City Council v Oddyseas (Op co) Ltd [2017] EWHC 2783 »
Condensation dampness causes severe problems for many people. The dampness and consequent mould growth can be damaging to health and can destroy clothing and furnishings. Attempts to heat damp premises can lead to high fuel bills. The causes of, and remedies for, condensation are complex. Most remedies are beyond the means or control of tenants, involving substantial expenditure on, for example, structure and heating systems.
Legal remedies for condensation
In Scotland, the obligations on a landlord under the Repairing Standard (see here) are wide enough to cover condensation. This means your landlord has to make sure that there is no condensation problem when your tenancy starts and that, if it arises during the tenancy and you report it, s/he must carry out whatever works are necessary to solve the problem. Condensation and dampness are not limited to physical dangers, regard should also be given to your comfort.1Agnes Fife Pursuer v Scottish Home Defenders (1995) SCLR 209, 26 January 1994
In England and Wales, for condensation to come within a landlord’s repairing obligations you must show that there has been ‘damage to the structure and exterior which requires to be made good’.2Dillon LJ in Quick v Taff Ely BC [1985] 18 HLR 66 This has to relate to the physical condition of the structure or exterior. Unless condensation has occurred over a long time and plaster has perished or window frames are rotten as a result, it may be hard to show this.
If the condensation damage is caused by inherent defects in the building (eg, because of defective materials) and if the only way to correct this is to carry out improvements, this can be ordered by the court. A landlord will not, however, be ordered to renew a building completely or to change it substantially – what will be required is a question of degree.3Ravenseft Properties Ltd v Davstone Holdings Ltd [1979] 1 All ER 929 It is very unlikely that a court would order installation of a different heating system or the full range of works necessary to remedy condensation.
Therefore, in England and Wales, it is normally more effective to prosecute under the Environmental Protection Act 1990 for a ‘statutory nuisance’ (see here). It is not necessary to prove a breach of any contractual or statutory duty to use this remedy. This means that a court can hold a landlord liable even if s/he is not in breach of her/his responsibilities for repairs. A court can also order works of improvement if these are necessary to abate a nuisance.4Birmingham DC v Kelly [1985] 17 HLR 572
Landlords sometimes argue that tenants could avoid the nuisance by changing their lifestyle or by heating premises properly. This is rarely correct. If your landlord provides ventilation or a heating system, you are expected to use it,5Dover DC v Farrar [1980] 2 HLR 32 but you are not required to use ‘wholly abnormal quantities of fuel’.6GLC v LB Tower Hamlets [1983] 15 HLR 54
In a private civil claim arising from nuisance caused by another tenant rather than the premises, the landlord is only liable to the extent that s/he ‘must either participate directly in the commission of the nuisance’ or has ‘authorised it by letting the property’. Merely being aware of a tenant creating a nuisance is not sufficient to ground a claim.7Southwark LBC v Mills [2001] 1 AC 1; Lawrence and another v Fen Tigers Ltd and others [2014] 2 All ER 622
1     Agnes Fife Pursuer v Scottish Home Defenders (1995) SCLR 209, 26 January 1994 »
2     Dillon LJ in Quick v Taff Ely BC [1985] 18 HLR 66 »
3     Ravenseft Properties Ltd v Davstone Holdings Ltd [1979] 1 All ER 929 »
4     Birmingham DC v Kelly [1985] 17 HLR 572 »
5     Dover DC v Farrar [1980] 2 HLR 32 »
6     GLC v LB Tower Hamlets [1983] 15 HLR 54 »
7     Southwark LBC v Mills [2001] 1 AC 1; Lawrence and another v Fen Tigers Ltd and others [2014] 2 All ER 622 »