Responsibility for statutory nuisances
Legal action in respect of noise from road traffic or railways is notoriously difficult, but a recent decision of the Divisional Court now offers some relief in this area. The case also has significant implications for landlords of property affected by noise of this type, and possibly by other forms of pollution.
Southwark London Borough Council v Ince and another (Independent Law Reports, 19 April 1989) concerned a block of converted flats owned and let by the local authority. Traffic at the front of the flats and from trains on railway lines at the rear produced substantial noise.
Tenants eventually brought proceedings under section 99 of the Public Health Act 1936 in the magistrates court against the local authority, complaining that there was a statutory nuisance under section 92(1)(a) of the Act since the premises were "in such a state as to be prejudicial to health." The tenants argued that the flats had not been adequately insulated, and hence that the local authority, as landlords, should be responsible in accordance with section 93 of the Act, as being the person by whose act, default or sufferance the nuisance had arisen or continued.
The magistrates upheld the complaint, and made an order requiring the authority to abate the nuisance. On appeal, the Divisional Court held that noise could be prejudicial to health, and that the magistrates were justified in this case in finding that the premises fell within the terms of section 92(1)(a).
The fact that there was other specific legislation dealing with noise did not prevent the 1936 Act being applicable. Furthermore, because of the poor sound insulation, the magistrates had more than sufficient material to satisfy themselves that the nuisance arose or continued by the act or default of the landlords, even though the noise was caused by external factors.
Lord Justice Woolf, however, emphasised that in determining the terms of an abatement notice, magistrates should not place unreasonable burdens on a local authority, and should take into account its obligations to its tenants and the extent of its resources. Such considerations would presumably apply equally to private landlords. He also noted that this case differed from the situation where flats had been constructed properly and insulated adequately but noise still penetrated.
The result is in line with a decision of magistrates in 1986 involving the same local authority, but not appealed (ENDS Report 132, p 17 ). In that case, however, the noise was caused by other tenants and the complaint was made by a tenant under section 57 of the Control of Pollution Act 1974, dealing specifically with statutory noise nuisances. There, again due to poor insulation, the local authority was held "responsible" for the nuisance in accordance with the terms of the Act.
Despite the observations of Lord Justice Woolf, the Ince case could have major financial implications for local authorities and other landlords of property seriously affected by noise, and should encourage the provision of adequate sound insulation.
But the ramifications of the decision are potentially wider. The provisions of the Public Health Act are not restricted to cases of severe noise. Any type of external pollution could give rise to a statutory nuisance if it resulted in premises being in a state prejudicial to the health of the occupiers.
Where such effects could reasonably be mitigated by preventive measures on the property itself, a landlord could now find himself legally liable to take such steps. Furthermore, the terms of section 93 of the Act are not confined to landlords, and potentially an architect, designer or even vendor of property could be considered a person by whose act or default the nuisance has arisen. That point, though, has yet to be decided by case-law.