Statutory nuisances and the objective test

In Cunningham v Birmingham City Council (High Court, 6 May 1997), an occupier of premises had claimed that they were in such a condition that a statutory nuisance existed. Section 79 of the Environmental Protection Act 1990 defines a number of categories of nuisance, including "premises in such a state as to be prejudicial to health or a nuisance." The local authority offered to carry out remedial works to abate the nuisance, but the occupier had claimed that they were insufficient due to the autism of one of her children.

The definition of the statutory nuisance followed a familiar two-limb approach, the first referring to prejudice to health and the second to a nuisance. Long-standing case law has established that where the second limb is relied upon, courts must refer to general common law principles of nuisance to determine whether the conditions were satisfied.

Under these principles, courts consider to what extent the amount of interference with the enjoyment of property can be considered unreasonable, essentially asking what would be acceptable or unacceptable to "ordinary" people. If the person bringing the action can be considered oversensitive in comparison to others, either because of personal characteristics - such as a particularly acute sense of smell or hearing - or because of a particularly sensitive type of occupation, this will not amount to a nuisance in law.

In the present case, the occupier relied on the first limb, and claimed that if the state of the premises was in fact prejudicial to the health of her children, however sensitive, this should be sufficient.

The court disagreed. If an objective test was to be applied to the nuisance limb of the definition, it did not make sense that a subjective test should be applied to the other limb. The obligation on landlords, who are often held responsible for nuisances, would, the court held, be enormous if they had to take into account the health of individual occupants. The magistrates who made the original order were therefore wrong to relate the duty of the local authority to the particular health requirements of the occupier in question.