Statutory nuisances and the definition of an owner

Part III of the 1990 Act replaced previous provisions concerning statutory nuisances under the Public Health Act 1936 and the Control of Pollution Act 1974, and gives local authorities broad powers to deal with a wide range of defined nuisances which encompass many types of environmental pollution.

For the most part, nuisance abatement notices are served on the person "responsible" for the nuisance - an open-ended concept which itself has given rise to a considerable amount of litigation, including a High Court decision only the other month (ENDS Report 293, pp 49-50 ). Where that person cannot be found, or the nuisance has not yet occurred, notice can be served on the owner or occupier.

Section 80 of the Act, however, provides that where a nuisance arises from a defect of a structural nature, then notice must be served on the "owner of the premises". It was the meaning of this phrase that was the subject of the Court's decision in the Gunby case.

The case concerned premises in north London which were alleged to be in a state prejudicial to health and therefore a statutory nuisance. The freehold owner was a company, Bankway Properties Ltd, but at all material times the premises has been managed by a firm of surveyors of whom Mr Gunby was a partner.

Before serving the notices, the local authority had sought information from Mr Gunby and Bankway Properties concerning responsibilities for the building, and had been informed by Mr Gunby that the firm of surveyors was responsible for works to common parts of the property.

The 1990 Act contains no definition of an "owner". But the local authority argued that the historical predecessors to the 1990 legislation, starting from the Public Health Act 1848 and including the 1936 and 1974 Acts, had all defined owner to include "the person for the time being receiving the rack rent of the premises?whether on his own account or as agent or trustee for any other person." A rack rent means the commercial rent, and such a definition would clearly include the managing agents in this case.

The council argued that this definition should be implied in the legislation. The purpose of the statutory nuisance controls was to allow local authorities to deal quickly and effectively with problems, and permitting them to serve notices on the person receiving the rent rather than to attempt complex searches looking for the true owner assisted that purpose.

The problem for the local authority with this argument was that section 81A of the 1990 Act, introduced under 1993 amending legislation, contains an express definition of "owner" in different terms. This section deals with the situation where a local authority carries out remedial works itself, and seeks to recover costs from the person by whose act or default the nuisance was caused, including the owner.

The 1993 amendments were aimed to improve the position of the local authority and allowed it to place a land charge on the property where its expenses had not been paid. The section defines "owner" to mean a person who is entitled to receive the rack rent or would be so entitled if the property was let, whether in his own right or as trustee for any other person. A trustee is not the same as an agent, and the definition would not have included the managing agents in this case.

The local authority argued that this narrower definition was expressly confined to section 81 of the Act and should not be carried through into the other sections. It was quite possible to have two distinct definitions of an owner within the same provisions, and the rationale for section 81 excluding agents was that it was concerned with land charges and the land itself rather than overall responsibilities for nuisance abatement.

The Court agreed with the local authority. The fact that section 81 confined the narrower definition of an owner to that section meant that there was a question mark raised as to the definition in section 80. Given that, according to Lord Justice Rose, a court "is entitled to resolve that ambiguity by recourse to the overwhelming legislative history." He noted that the wider definition had been used for over 150 years, and even later legislation such as the Clean Air Act 1993 had also used the broader definition.

The court's interpretation was reinforced by the fact that agents who felt they had been unjustly served with a notice could, under the appeals regulations, appeal on the grounds that the notice should have been served on another person. Or they might invoke the statutory defence of "reasonable excuse" to any criminal action.

It remains unclear whether the lack of the definition of an owner under the main provisions of the 1990 Act was simply a legislative oversight. Nevertheless, the Gunby decision accords with practical sense, and any other conclusion could have made effective enforcement of the statutory nuisance provisions considerably more difficult for local authorities in many cases.