LORD WIDGERY C.J.
This is an appeal by case stated by the stipendiary magistrate for Salford in respect of of his adjudication as a magistrates' court at Salford on April 16, 1974. Before him on that date was a complaint preferred by an occupier of premises, Mrs. McNally, as being a person aggrieved under section 99 of the Public Health Act 1936. The complaint was made against the local authority and stated that on February 1, 1974, a statutory nuisance contrary to section 92 of the Public Health Act 1936 had arisen and continued to exist at 20 Johnson Street, Salford, and the local authority being the owners of the property on which the nuisance had arisen, had been informed of the existence of the nuisance by letters from the occupier dated February 1, 1974, and February 26, 1974, specifying the defects complained of, namely, accumulation of refuse, dampness, defective sanitary fittings, unsealed drains allowing egress of rats, defective windows and/or doors, leaking rainwater goods, leaking roof, defective drainage, defective plasterwork and defective floors.
The complaint was made by the occupier pursuant to section 99 of the Public Health Act 1936, and before I turn to section 99 I should briefly review the scheme of that Act in regard to nuisance rendering premises unfit for habitation. Section 92 (1) of the Act defines as "statutory nuisance" a number of factors, one of which is that the premises are in such a state as to be prejudicial to health or a nuisance. Where a statutory nuisance is alleged to exist, the local authority, if satisfied of its existence, may under section 93 serve an abatement notice on the person by whose act, default or sufferance a nuisance arises or continues. On the service of that abatement notice if no action is taken in accordance with the notice to abate the nuisance, then by section 94 the matter can be referred to the court. Section 94 (1) provides:
"If the person on whom an abatement notice has been served makes default in complying with any of the requirements of the notice, or if the nuisance, although abated since the service of the notice, is, in the opinion of the local authority, likely to recur on the same premises, the authority shall cause a complaint to be made to a justice of the peace, and the justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction."
Thus what is contemplated in the ordinary situation, if one may so describe it, by the Act of 1936 is that the local authority, being apprised of the existence of a statutory nuisance, serve an abatement notice. If it is complied with, well and good. If it is not, then the local authority may follow the matter up by making complaint to a court of summary jurisdiction.
In section 94 (2) we find a direction to the court of summary jurisdiction as to how it is to deal with such a situation:
"If on the hearing of the complaint it is proved that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, then, subject to the provisions of subsections (4) and (5) of this section the court shall make an order (hereafter in this Act referred to as 'a nuisance order') for either, or both, of the following purposes - (a) requiring the defendant to comply with all or any of the requirements of the abatement notice or otherwise to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose; ..."
At that point one may well ask where does the occupier come into the matter and how is it that the local authority are parties to the proceedings. The answer is that in this instance the owners of the property were the local authority and Mrs. McNally was the occupier. Section 99 provides what has been described in argument before us as a short cut whereby, in the absence of action taken by the local authority, a person aggrieved may take action for him or herself. Section 99 provides:
"Complaint of the existence of a statutory nuisance under this Act may be made to a justice of the peace by any person aggrieved by the nuisance, and thereupon the like proceedings shall be had, with the like incidents and consequences as to the making of orders, penalties for disobedience of orders and otherwise, as in the case of a complaint by the local authority, but any order made in such proceedings may, if the court after giving the local authority an opportunity of being heard thinks fit, direct the authority to abate the nuisance."
That is why in this case the complaint is laid by the occupier and not, as would generally be contemplated by the earlier sections, by the authority itself.
This is another case, of which there have been a number recently, where the provisions of the Public Health Act 1936, to which I have briefly referred and the purpose of which is to prevent people from living in houses which are not fit for human habitation, have come in some measure into conflict with parallel legislation in the Housing Acts.
The relevant Housing Act for present purposes is that of 1957, and that Act contains not only general provisions charging local authorities with the duty of providing houses for those who need to be housed in their area, but it also provides comprehensive machinery whereby local authorities can clear areas which have out of date housing with a view to those houses being replaced by up to date dwellings. The procedure is laid down in detail to an extent that I need not follow in those provisions of the Act of 1957 which are contained in Part III headed "Clearance and Re-Development."
A local authority has power to declare an area a clearance area on the ground that the houses in the area are unfit for human habitation. So one starts with the approach to the Act of 1957 by bearing in mind that it is concerned with houses which are unfit and it is concerned with the removal of the houses which are unfit within the provision there specified. Having declared the area to be a clearance area, section 43 provides that the housing authority may deal with the situation, either by requiring the owners of the houses to demolish them, or, alternatively, by acquiring houses and demolishing the houses itself. The second method, as we all know, is the one which is more generally favoured at the present time.
The fact that the Act is concerned with unfit houses in which people should not continue to live to the prejudice of their health is underlined by the sense of urgency in the matter which is injected by section 47. Section 47 (1) provides that following upon the making of the clearance order:
"... a local authority who have under this Part of this Act purchased any land comprised in, or surrounded by, or adjoining, a clearance area shall, so soon as may be, cause every building thereon to be vacated and shall deal with that land in one or other of the following ways, or partly in one of these ways and partly in the other of them, that is to say - (a) they shall demolish every building thereon before the expiration of six weeks from the date on which it is vacated, or before the expiration of such longer period as in the circumstances they deem reasonable,..."
I say a sense of urgency because, understandably, when dealing with unfit houses Parliament was minded to see that the unfit houses were removed as speedily as possible.
However from 1957 onwards an additional provision has been included in this code and now finds itself in section 48 of the Act of 1957:
"(1) Notwithstanding anything in the foregoing provisions of this Part of this Act a local authority by whom an area has been declared to be a clearance area may postpone, for such period as may be determined by the authority, the demolition of any houses on land purchased by or belonging to the authority within that area, being houses which in the opinion of the authority are or can be rendered capable of providing accommodation of a standard which is adequate for the time being, and may carry out such works as may from time to time be required for rendering or keeping such houses capable of providing such accommodation as aforesaid pending their demolition."
It seems to me, looking at that section in isolation for the moment, that it is clearly intended to provide a qualification to section 47. Despite the note of urgency which section 47 injects into this matter, section 48 is recognising that there will be occasions when authorities just cannot act as fast as that. It accepts and justifies as a principle that the local authority may postpone the actual demolition of houses provided they are able by patching them up to keep them up to the standard defined by the section, which is inevitably a lower standard than that which is contemplated by the Public Health Act 1936.
Before I turn to the facts of the present case it is, I think, helpful to refer next to the only recent authority on this subject and one which perhaps covers a number of the points which the instant problem raises: Nottingham City District Council v. Newton [1974] 1 W.L.R. 923, a decision of this court. Anyone who is concerned hereafter to deal with these problems in detail can read the decision in the Nottingham case for himself, and I do not therefore propose to burden this judgment by extensive quotations from it. Suffice it to say, the situation which arose in the Nottingham case was in many respects similar to the present. Again there were houses where statutory nuisance existed because the houses were unfit for human habitation. Again the initiative was taken by one of the occupiers of those unfit houses under section 99 of the Public Health Act 1936. Again (and when I say "again," reference to the present case will soon bear this out) there was on the face of it a conflict between the two Acts, because in the Nottingham case the local authority had declared a clearance area, had made a clearance order and were well advanced towards obtaining a compulsory purchase order which would enable them to clear the area as owners. They had not reached the stage of a compulsory purchase order, but they were, as it were, well on the way.
When the occupier of one of the houses took action under section 99 and the case therefore came before the magistrates' court, it was argued, and, if I may say so, argued with some force, that it was uneconomic and contrary to common sense that a house of this kind should be put into a state which would satisfy the Public Health Act 1936 and then perhaps be demolished with a few months thereafter. Thus the justices were faced with the problem of whether in a case in which the house is liable to be demolished in the near future there can be any obligation upon the landlord to make the house habitable for the purposes of the Act of 1936.
The justices in the Nottingham case read the sections to which I have already referred, and they decided that it was their duty under section 99 to make a nuisance order requiring the abatement of the nuisance, if in fact the statutory nuisance was proved before them. It was proved before them and so they made the order. The Nottingham City District Council: appealed to this court raising issues similar to those raised in the present case. The decision in the Nottingham case was this: that where the essentials of a satutory nuisance had been proved before the justices so that they were satisfied that a statutory nuisance existed, they were, as the section said, bound to make a nuisance order. However it was pointed out by this court that, although bound to make a nuisance order, they had considerable tolerance in deciding precisely how many of the complaints, and which complaints, required to be remedied, and also the time within which that remedy should be supplied. This court made it perfectly clear that justices faced with this situation, although bound to make an order under the Act, can use their common sense and are entitled to take into account all the circumstances, and thus avoid the expenditure d public money unnecessarily in a case where the house is likely to be pulled down shortly in any event.
I have quoted from the Nottingham case at some length because it has a very similar background to the present case. I will turn now to the facts as found by the magistrate. He finds that at all material times Mrs. McNally was the occupier of a house, 20 Johnson Street, Salford, and that the local authority were the owners. The local authority had proceeded to the point of acquiring the title to the premises under a compulsory purchase order. The magistrate inspected the premises and found a number of defects existing; there was rising damp, perished plaster, the rear door was rotted, there was severe dampness in the first floor and the water closet pipe was cracked and insanitary. By reason of those defects he found that the premises were in a condition prejudicial to health and therefore were a nuisance for the purposes of the Act of 1936.
The magistrate then deals with the local authority's plans for this area in terms of re-development under the Housing Act 1957. He records that on March 1, 1967, the local authority, as part of their extensive slum clearance programme, and acting under the powers conferred on them by section 42 of the Housing Act 1957, declared a number of areas in the Lower Broughton district of Salford to be clearance areas. On the same date, the local authority, in pursuance of their powers under section 43 of the Housing Act 1957, made a compulsory purchase order for the acquisition of the area in which the occupier's house exists. Since the clearance areas were areas where a large number of unfit properties were liable to be demolished, or so large, states the magistrate, that it would be many years before all the occupiers could be rehoused and the dwelling houses removed, the local authority, in exercise of their powers under section 48 of the Housing Act 1957, deferred for a period of seven years the demolition of the dwelling houses in the compulsory purchase order being dwelling houses which in the opinion of the local authority were or could be rendered capable of providing accommodation of a standard adequate for the time being. There it will be seen is the first, and perhaps the only real, distinction between this case and the Nottingham case, because in this case the local authority had proceeded to the point of resolving to postpone demolition in accordance with their undoubted powers under section 48 of the Housing Act 1957.
Then the magistrate deals with the arguments which had been put before him. He was supplied with a copy of a report of the Nottingham case in "The Times," which was a comparatively full report. Having found the premises, that is to say the occupier's house, unfit for human occupation, he concluded that he was bound to make a nuisance order. I pause there to say on the face of it by the decision in the Nottingham case he was so bound. The magistrate went on to conclude that the resolution under section 48 did not excuse the occupiers from their duties under the Public Health Act 1936. He made the nuisance order, and he asks the court in effect whether he was right in law in so doing.
Thus in the end it seems to me the only question we have to decide is this: given that the decision in the Nottingham case is right (and no one has attacked it in this court; indeed we would normally regard ourselves as being bound by it anyway) the background situation here is that the house was unfit for human habitation, it was in a condition prejudicial to health, and the magistrate found it to be in that condition and regarded himself as bound to make a nuisance order requiring the abatement of the nuisance. On the face of it, following the Nottingham case, that was entirely correct.
The question is: does the resolution under section 48 make any difference? Mr. Sears has argued manfully to support the contention that it does. Let me say at once that there is a great deal of common sense in the submissions made on behalf of the local authority that section 48 should make a difference. I entirely agree with Mr. Sears when he says that section 48 is a recognition by Parliament that there will be occasions when people have to live perhaps for some time in houses which are not up to the standard of fitness for human habitation laid down in the Act of 1936. I agree with him that that is a situation which Parliament may well have contemplated and indeed is really part of the background to section 48.
What I find it impossible to say is that the effect of section 48 is to remove, as it were, the normal Public Health Act standard of fitness for habitation in cases where a nuisance within the Public Health Act arises. If it had been Parliament's intention to apply a lower standard of fitness in cases within section 48, it would have been the simplest thing in the world to say so. Nothing would have been easier than to say that where section 48 applies, then a house which complies with the standard there laid down should not be regarded as unfit for the purposes of the Public Health Act 1936.
But what in fact Parliament said was just the opposite. Section 188 of the Housing Act 1957 provides:
"All powers given by this Act shall be deemed to be in addition to and not in derogation of any other powers conferred by Act of Parliament, law, or custom, and such other powers may be exercised in the same manner as if this Act had not passed, and nothing_e in this Act shall exempt any person from any penalty to which he would have been subject if this Act had not passed:..."
If one gives those words their ordinary meaning, they can only mean one thing, and that is that nothing in the Housing Act is to affect the standards of suitability for occupation already prescribed by the Public Health Act 1936. I am driven to the conclusion that whether or not this is a wholly satisfactory solution, the position in law at the present time is that an individual occupier of a house unfit for human habitation can initiate proceedings under section 99 of the Act of 1936 and on proving his case can require the magistrate to make a nuisance order, and that notwithstanding the fact that the house is a house to which a resolution under section 48 of the Act of 1957 applies.
Having reached that conclusion, I do not think there is anything more to be said. No doubt the existence of the section 48 resolution is one of the factors which will affect the magistrates' court when dealing with this difficult type of question, but that it is more than a factor and having such weight as the magistrate thinks right and no more, I find it impossible to say. Although the magistrate's opinion as stated in his case is not in wholly satisfactory terms, I feel satisfied that he was shown an adequate report of Nottingham City District Council v. Newton, and that he did take into account all the circumstances before him in reaching the conclusion he reached. In those circumstances it seems to me, therefore, that there is nothing we can do but dismiss the appeal.
MELFORD STEVENSON J. I agree.
WATKINS J. I agree.
ORDER
Appeal dismissed.
Certificate under section 1 (2) of the Administration of Justice Act 1960 that point of law of general public importance was involved, namely: "whether it is a lawful defence for a housing authority in proceedings brought against it by virtue of either section 93 or section 99 of the Public Health Act 1936 to prove that the house, the subject of the complaint, is one occupied by reason of section 48 of the Housing Act 1957 and maintained to the standard under section 48."
Leave to appeal refused.
Crown Copyright acknowledged
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