June Adams -v- City of Glasgow Council

Sheriff McCallum, Glasgow Sheriff Court, 28 July 1999

The Sheriff having resumed consideration of the cause repels plea-in-Law 1 for the Defenders; reserves Plea-in-Law 1 for the Pursuer; allows parties a Proof before Answer of their respective averments; meantime reserves the question of expenses.

NOTE:

I heard Debate in this case on 22nd February and 11th June 1999. Mr. Collins of Counsel appeared for the Pursuer and Miss Williamson of Counsel for the Defenders. Both Miss Williamson and Mr. Collins helpfully lodged written submissions supplemented by their oral addresses to me. I have perused my notes and am satisfied that the written submissions fully reflect the oral addresses and I have accordingly annexed to this Interlocutor and Note the written submissions rather than repeat them ad longum. However, I will summarise the arguments presented.

The Pursuer has lodged a Summary Application under Section 82 of the Environmental Protection Act 1990 (“the Act”) as the tenant of the dwellinghouse at 24 Gorebridge Street, Carntyne, Glasgow (“the subjects”) against the Defenders as Landlords seeking inter alia an Order under Section 82(2)(a) of the Act requiring the Defenders to abate an alleged noise nuisance at the subjects. All future references are to Sections of the Act. Section 79(1) (a) to (h) lists nine statutory nuisances. This Application concerns 79(1)(a) which relates to “any premises in such a state as to be prejudicial to health or a nuisance” and (g) “noise emitted from premises so as to be prejudicial to health or a nuisance”.

Miss Williamson submitted that Section 79(1) listed a series of individual self contained statutory nuisances and that a statutory nuisance under Section 79(1)(a) could not be relied upon in the same application in conjuction with any other statutory nuisance and, in particular, in this case under Section 79(1)(g). Section 80 imposed a duty on the Local Authority where a statutory nuisance existed to take steps to have the nuisance abated and in terms of Section 80(4) makes it a criminal offence for anyone without reasonable excuse to contravene or fail to comply with any requirement of prohibition imposed by an abatement notice. Section 82(8) sets out the penalties for contravening an order issued under Section 82(2) by the Sheriff. Accordingly, said Miss Williamson, very careful scrutiny of an action raised under Section 82 is essential. Section 82(6) which Miss Williamson submitted was critical to the case provides that before instituting proceedings under Section 82(2) the person aggrieved by the nuisance shall give to the person against whom proceedings are intended “such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of”.

A notice was served by the Pursuer on the Defenders on 30th January 1998 (5.1 of Process). This notice stated that the nuisance was “noise” and constituted a statutory nuisance in terms of Section 79(1)(g) and further stated “the noise from the property below the subjects is causing stress to the aggrieved person, her elderly mother and young children. It interferes with their sleep and as such interferes with their physical and mental health”. The notice further stated that remedial works that may be employed to abate the nuisance include “upgrade the sound insulation between the ceiling of the downstairs property and floor of the subjects to modern standards”. The notice is signed by the Pursuer’s Solicitor. On 17th August 1998 the Pursuer lodged the present application in Court averring the existence of a nuisance in terms of Section 79(1)(g). On 12th December 1998 the Pursuer adjusted the writ to bring in a case under Section 79(1)(a). There was further adjustment by both the Pursuer and the Defenders and a Record was lodged on 22nd January 1999. Miss Williamson submitted that the Pursuer could not by way of adjustment or amendment competently seek to introduce a case based upon a statutory nuisance not identified within the original notice served under Section 82(6). The basis upon which the Pursuer sought to found liability has altered substantially, shifting the emphasis of her complaint to the condition of the premises at 24 Gorebridge Street from a complaint regarding the premises at 22 Gorebridge Street. The Section 82(6) notice gave no notice of an intention to raise proceedings under Section 79(1)(a) of the Act. Such a fundamental omission could not cured by way of adjustment or amendment.

Miss Williamson referred me to the case of East Staffordshire Borough Council -v- Fairless (The Times 22.10.98) which concerned the validity of a notice under Section 82(6) which had not specified all the works necessary to abate a statutory nuisance. In that case at page 8 of the transcript the Court stated that an over technical approach to Section 82(6) notices could not be taken and stated that ordinary members of the public, such as tenants, should not be deterred from pursuing complaints, well founded on the merits by over technical requirements. However, Miss Williamson submitted that the Court had accepted that a Section 82(6) notice must specify the matter complained of and accordingly no new matter could be introduced by way of adjustment or amendment of the present writ.

I was then referred to the case of Pearshouse -v- Birmingham City Council, 4.11.98 unreported, a case involving facts very similar to those in the East Staffordshire case and there Mr. Justice Collins held that the purpose of Section 82(6) was to give the recipient an indication of what is the subject matter of the complaints. “What is necessary in my judgement is for the tenant to indicate very broadly the nature of the complaint”. The Lord Chief Justice agreed with Mr. Justice Collins’ opinion. Despite these dicta Miss Williamson submitted that the cases showed that it is necessary to identify the statutory nuisance upon which the action is raised and that it was not competent to introduce an alternative case based upon a different statutory nuisance not specified in the notice. Miss Williamson then referred to R –v- Birmingham City Council ex parte Kelly (The Times 9.2.99) which was a case concerning the address at which a Local Authority can be served with a Section 82(6) Notice. There it was said that Section 82 was “intended to provide ordinary people with a speedy and effective remedy for circumstances which will often have an adverse effect or a potential adverse effect upon their health and the health of their children” and that this intention should not be frustrated by any technical obstacle. Miss Williamson then pointed out that these dicta related to ordinary people without legal advice and should not extended to cover a case such as this where the notice had been drafted and signed by a Solicitor.

Mr. Collins in answer moved me to allow a Proof of the Pursuer’s averments in respect of both Section 79(1)(a) and (g) of the Act. He submitted that the Section 82(6) notice sufficiently specified the matter complained of and accordingly there was no bar to introducing averments in respectof a nuisance within Section 79(1)(a). There was no provision in Part III of the Act making it incompetent to amend a Summary Application brought under Section 82(1). If Parliament had intended this it could have provided for it. The question of whether amendment of the Pursuer’s case should be allowed to include averments relating to 79(1)(a) was not one of competency but a matter of judicial discretion. It was in the interests of justice to allow the amendment to determine the real question and controversy between the parties. There was nothing in Section 79(1) which provided that the same set of facts could not give rise to a nuisance under more than one of the sub-sections (a) to (h). I was referred to the cases of London Borough of Southwark -v- Innes 1989 21.H.L.R. at 504 and Network Housing Association -v- Westminster City Council 1994 27.H.L.R. 189 where noise nuisance had been held to be capable of falling under either 79(1)(a) in the first case or 79(1)(g) in the latter. There was nothing to prevent pleading that the same set of facts constituted a statutory nuisance under either 79(1)(a) or (g) as alternatives.

This had been done here. In any event the Local Authority had a duty to inspect its area from time to time to detect any statutory nuisance and to investigate a complaint of a statutory nuisance. There was no duty as submitted by the Defenders that the tenant, had to direct their attention to a particular defect (paragraph 10 of Defenders’ submissions). There was no need for any particularly careful scrutiny of the Section 82 action because criminal liability followed failure to obtemper an order. This would require a prosecution where a standard of proof would be as in any other criminal prosecution. The proceedings in Scotland in contrast to England were civil in nature.

Mr. Collins referred me to the Housing (Scotland) Act 1987 Section 47 and compared this section to Section 82 of the Act. In terms of Section 47(2) of the Housing (Scotland) Act a notice required to be served before recovery of possession of a secured tenancy which, in terms of 47(3) required to specify the ground in Schedule 3 to the Housing (Scotland) Act on which proceedings were to be raised and prohibited the granting of the order by the Sheriff on any ground other than that specified in the Section 47 notice (Midlothian District Council -v- Tweedie (unreported 3rd March 1993 by Sheriff Principal Nicholson at page 10 of the transcript). If parliament had intended a similar prohibition in Section 82 it could have done so but it had not and accordingly such restrictions could not be implied. Mr. Collins then referred to the cases of East Staffordshire Borough Council, Pearshouse and R -v- Birmingham City Council. The whole tenor of these cases was that a non technical approach to the procedure under Section 82 was to be taken and I refer to Mr. Collins’ written submissions for the specific passages to which he referred.

The Defenders’ submission was that the Section 82(6) notice served in this case did not suggest that it was the Pursuer’s premises which was the cause of the statutory nuisance and accordingly there was no notice of an intention to bring proceedings in respect of 79(1)(a). This was not so. The notice gave reasonable notice that the Pursuer’s complaint was of noise nuisance at the subjects; that the nuisance was prejudicial to the Pursuer and her family’s physical and mental health; that remedial work might include upgrading of the sound insulation separating her flat from the flat downstairs and that she would be entitled to raise proceedings under Section 82 within 21 days, (i.e. the period relative to Section 79(1)(a) and not 79(1)(g) which was three days) and that the Defenders were called upon as owners of the subjects, that is 24 Gorebridge Street, to remove the nuisance in terms of Section 82(4)(b). Application under Section 82(2) may only be brought against the owner of the premises where the nuisance arises from a defect of a structural character. The Defenders accordingly had reasonable notice of the Pursuer’s complaint and of a possible remedy and that the complaint was of noise nuisance in her flat. Esto the notice did not meet the requirements of Section 82(6) in respect of Section 79(1)(a) nevertheless there was no bar to allowing amendment of the action and I should allow such amendment. I should note the Defenders had 21 days in terms of the notice to inspect the subjects but no inspection was carried out until after the Initial Writ was lodged.

Further inspections as specified in his written submissions were made at the Pursuer’s flat showing that the Defenders were well aware that an issue arose about the state of the subjects as opposed to the flat downstairs. It would be a waste of time and public money to refuse amendment as the Pursuer could simply serve a further notice referring to Section 79(1)(a), raise a further, action and conjoin it for Proof with the existing action. Finally Mr. Collins pointed out that in the cases of East Staffordshire, Pearhouse and R -v- Birmingham City Council all the notices had been issued by Solicitors and accordingly Miss Williamson’s argument that the dicta in these cases should not apply where Solicitors were involved could not stand. Expenses should be reserved.

I will surnmarise what I understand to be the submissions in law made by Miss Williamson:

1. That the Section 86(2) notice refers to noise from the flat below the subjects and accordingly there was no notice in terms of Section 79(1)(a) of the Act that the subjects were such a state as to constitute a statutory nuisance. In my view there is no merit in this argument. The notice clearly states that the nuisance is a noise nuisance at the subjects, the noise emanating from the property below the subjects. It is a matter of law for the Sheriff to decide whether the nuisance falls under 79(1)(a) or 79(1)(g).

2. That particularly careful scrutiny of Section 82 of the Act is required because of the criminal liability if an Order under that Section made by the Sheriff is not obtempered. Again I see no merit in this argument. There is no direct criminal liability in respect of the Section in Scotland and the notice and application are civil proceedings.

3. That it is not competent to plead that a nuisance exists under alternative subsections of Section 79 of the Act. No authority was put forward for this proposition and in the cases of London Borough of Southwark, Network Housing Association, noise nuisance has been held to be capable of falling under either sub-section 79(1)(a) or sub-section 79(1)(g). In my view alternative cases can be pled and it is a matter for the Sheriff to decide under which, if any, of the sub-sections the nuisance falls.

4. The principal submission of the Defenders was that the Pursuer was not entitled to alter her pleadings by adjustment or amendment to bring in the case under 79(1)(a) when the Section 86(2) notice did not refer to that section. I respectfully adopt the view taken in the English cases that a non-technical approach is appropriate to Section 86(2) notices and that all that it required of the person giving notice is to indicate broadly the nature of his or her complaint. This the notice given on behalf of the Pursuer clearly does. It is not of consequence whether that complaint falls under 79(1)(a) or 79(1)(g). Indeed in my view if there had been no reference to any Section of the Act the notice would have been valid. Like Mr. Collins I think it significant that the provisions of Sections 47 and 48 of the Housing (Scotland) preclude reference to any grounds other than those stated in the notice whereas there is no such provision in the Act. I do not consider that the non-technical approach is in any way invalidated by the fact that the notice was drafted and signed by a Solicitor. The notices in the three English cases of East Staffordshire Council, Pearshouse and K -v- Birmingham City Council were drawn and signed by Solicitors.

Accordingly in my view the case made by the Pursuer under Section 79(1)(a) of the Act is competent and relevant and I have repelled the Defenders’ first Plea-in-Law. I should add that if I were wrong in holding the notice valid I would have allowed the amendment of the pleadings by the Pursuers as there is no prejudice to the Defenders who have been since at least the service of the Section 82(6) notice been aware of the nature of the complaint. As agreed I have reserved the Pursuer’s first Plea-in-Law and accordingly have allowed a Proof before Answer. Again as requested I have reserved the question of expenses.

Act: Collins, Advocate; instructed by Brown & Co., at Legal Services Agency.

Alt: Williamson, Advocate; instructed by Legal Services Department, Glasgow City Council.