STATUTORY NUISANCE: LAW AND PRACTICE

EAST RIDING OF YORKSHIRE COUNCIL - v-YORKSHIRE WATER SERVICES LIMITED

(Friday, 24th March 2000)(CO/1836/99)

REPORTED AT [2001] Env. L.R.7 @113

JUDGMENT OF MAURICE KAY J

Facts: The background was as follows:

On 19^th May 1998 an abatement notice was served by the East Riding of Yorkshire Council against Yorkshire Water Services Limited requiring Yorkshire Water Services Limited to abate a statutory nuisance under Section 79(1)(a) at premises: "known as the ‘sewer’ serving Rose Cottage, Back Lane, Burton Pidsea... arising from a defect to or a blockage of the above mentioned ‘sewer’."

What came before the Deputy Stipendiary Magistrate was an appeal against that abatement notice. At a hearing on 22^nd February 1999 two preliminary issues were identified:

Whether the sewer was a public sewer, and

Whether the sewer, if found to be a public sewer, was capable of being "premises" within the meaning of section 79(1)(a).

The issue as to whether the sewer was a public sewer had to be resolved by evidence. That issue is not the subject of the present appeal. Suffice it to say that the Deputy Stipendiary Magistrate concluded that the sewer was a public sewer.

The issue in the present appeal relates to the second preliminary issue, namely whether such a public sewer is capable of being "premises." Indeed, the question for the opinion of this Court is posed in the Case Stated in the following simple way: "Can a public sewer be ‘premises’ for the purposes of Section 79(1)(a) of the Environmental Protection Act 1990?"

Held:

MAURICE KAY J.

The First Area of Substantive Dispute

The Appellant submitted that the subterranean pipes constituting the sewer in this case amounted to a structure and as such fell within the definition. Section 79(7) goes on to define premises as including land. Mr Bates relied on a passage in the speech of Viscount Dilhorne in Maunsell v Olins [1975] 1 All ER 16. That case was concerned with the word "premises" in a different context, namely that of the law of landlord and tenant. Viscount Dilhorne said at page 19:

"’Premises’ is an ordinary word of the English language which takes colour and content from the context in which it is used. A reference to Stroud’s Judicial Dictionary shows this to be the case. It has, in my opinion, no recognised and established primary meaning. Frequently it is used in relation to structures of one kind or another. No one would, I think, in the ordinary use of the English language refer to farm land as ‘premises’, though farm buildings may often be referred to as ‘farm premises’. I do not think that it is right, when Parliament uses that word in a statute to conclude that it is intended to have the meaning that conveyancers attach to it unless a contrary intention appears."

Lord Wilberforce at page 21 stated:

"I think that I would not be alone in finding that the key word ‘premises’ invites reflection. It is true that it is a general word or, rather, a word of some generality but I know of no rule of construction which requires general words to be interpreted literally regardless of their context. If appeal is made to the principle that the plain meaning of a word should be taken, unless at least some other indication appears, it must be said that a word does not necessarily have a plain meaning just because it appears to be general - certainly not such a word as ‘premises’."

He too observed the number of different meanings which had been given to the word "premises" adding:

"of which the most central appears to be buildings or some kinds of buildings, but it would be far too much to say that there is any prima facie, still less any grammatical meaning from which one should start."

The Appellant sought to argue that those passages, and particularly the words of Viscount Dilhorne, tended to require that "premises" included "structures of one kind or another." And also submitted that that approach is supported by a provision in the Interpretation Act 1978. Section 5 of the 1978 Act provides:

"In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule."

One of the words set out in the schedule is the word "Land". The Schedule states:

"’Land’ includes buildings and other structures, land covered with water and any estate, interest, easement, servitude or right in or over land."

It seemed that that provision came into the 1978 Act for the first time. Thus, submitted Mr Bates, the sewer in this case, being made of a joinder of pipes laid under the ground, was, and is, a structure. Land includes a structure. Premises include land and therefore section 79(1)(a) applies to a public sewer.

The appellant's argument is based on the provisions of the statutes, perhaps assisted by Maunsell v Olins, but does not have any regard to existing authority on section 79(1)(a) or, in particular, its predecessors. The authorities which drove the Deputy Stipendiary Magistrate to the conclusion that premises in this context do not include a public sewer were R v Parlby [1882] QB 520 and Fulham Vestry v London County Council [1897] 2 QB 76. Parlby was a case specifically concerned with the predecessor of section 79(1)(a), namely section 91.1 of the 1875 Act. Its significance lies at the heart of the present case. The headnote reads:

"The provisions of... (the Public Health Act, 1875), ss. 91 to 96, for the abatement of certain nuisances, do not apply to a nuisance arising from sewage tanks and works constructed under s. 27 by a local board of health, and a court of summary jurisdiction has, therefore, no power, on proof of a nuisance so caused, to make an order for the abatement of such nuisance under s. 96."

The judgment of the Court was given by Wills J. I go straight to the main part of that judgment where his Lordship at page 525 stated:

"In our opinion the provisions we have stated have no application to sewage works constructed under the powers of s. 27; we think the words of s. 91 do not include them, and we think they were not meant to include them. It is clear that the expression ‘premises in such a state as to be a nuisance’ has not the wide application claimed for it by the respondents, who say that it is answered by any premises on which a nuisance exists. If that were so the enumeration of, at all events, the several kinds of nuisance specified under heads 2,3,4 and 6 would be unnecessary; we do not attempt to define every class of case to which the first head applies, but we think it is confined to cases in which the premises themselves are decayed, dilapidated, dirty, or out of order, as, for instance, where houses have been inhabited by tenants whose habits and ways of life have rendered them filthy or impregnated with disease, or where foul matter has been allowed to soak into walls or floors, or where they are so dilapidated as to be a source of danger to life and limb.

It is a significant fact that under the second head the various receptacles for running or stagnant water which may be foul stop with drains, which, by the interpretation clause, are not sewers;..."

The judgment then goes on to expound policy reasons in support of part of the judgment referred to above.

Fulham Vestry v London County Council was not concerned with the 1875 Act but with section 2(1)(b) of the Public Health (London) Act 1891. That was a provision rather similar, but not the same as section 91.2 of the 1875 Act. Lawrance J stated at page 79:

"I think that the provisions of the Act in question were intended to apply to private matters - that is, to acts done by owners or occupiers of property - and that in order to make them applicable to such public works as are referred to in the present case, it would be necessary to read into s. 2, sub-s 1(b), the word ‘sewer’, which most probably was purposely omitted in order to show that the Act has no reference to public sewers."

In that case there was a second judgment from Day J. It has received some subsequent criticism and I do not propose to refer to its terms. Those two authorities were considered by the Divisional Court in ex parte Burlinson [1948] 1 KB 79. Lord Goddard, CJ, speaking of the case of Parlby, said this at page 87:

"That case seems to me to decide no more than this, that a nuisance alleged to arise from the construction of a sewage system is not one of the statutory nuisances within the sections of the Public Health Act, and that is really the whole of the decision in that case. No doubt there was an offensive smell arising from it, but the court would not hold that main sewers and sewage works of that description fell within the words of the section; they would not hold that it was one of these statutory nuisances in respect of which alone the justices had power to make an abatement order, and they said the case must be decided by the High Court."

Of the Fulham Vestry case he said on the same page:

"... that again was the case of a main sewer, and again the court held that an alleged nuisance arising out of the ventilation or construction of the sewage works of the London County Council was not one of the statutory nuisances which were dealt with in the Public Health Act. Again, I think that was the only point in the case. That was, at any rate, the ratio decidendi, albeit it is by the ratio decidendi that we are bound and not by any obiter dicta which may be found in the case."

The obiter dicta of which he was steering clear were the observations of Day J. It was Parlby and Fulham Vestry which caused the Deputy Stipendiary Magistrate to decide as he did. Ex parte Burlinson was also cited to him. He therefore took them as representing a statement of the current law.

It is beyond dispute that the line of cases, beginning with Parlby and culminating in what Lord Goddard said in ex parte Burlinson, is indeed authority for the proposition that a public sewer is not premises in the sense in which that word was used in the 1875 Act.

The Second Area of Substantial Dispute.

The 1875 Act has long since been repealed. The 1990 Act re-enacts section 91.1 and section 91 of the 1990 Act re-enacts other parts of the 1875 Act rephrasing some of them and adding other statutory nuisances to the list. The question arises whether the interpretation given to the word "premises", when the 1875 Act was the current legislation, now applies, several Acts on, to the same word in section 79(1)(a) of the 1990 Act.

In Sterling Homes v Birmingham City Council [1996] EnvLR 121 the issue there was whether another judicial decision under the 1875 Act, the case of R v Wheatley (1885) 16 QBD 34, which construed a provision in the 1875 Act, namely section 94, bound a Court in 1995 when construing a substantially similar provision in the 1990 Act. McCullough J at page 127 said this:

"[Counsel’s] argument is simple: the relevant provision in the 1875 Act was interpreted as requiring such specification: see R v Wheatley (1885) 16 QBD 34; and section 80(1) of the 1990 Act is in essentially the same terms. [The opposing counsel]... while accepting that the decision in that case cannot be questioned in this court, wishes to preserve his right to question it should this case go further. In any event, he submits that the 1990 Act should not be interpreted in the same way as was the 1875 Act. The 1990 Act was not a merely consolidating measure, and there was good practical reason for suggesting that Parliament did not in 1990 intend that such specification was essential."

His Lordship went on to conclude at pages 131 to 132:

"This similarity of wording suggests that, if the local authority decides to require works to be executed or other steps to be taken to abate the nuisance, Parliament intended the interpretation that the courts had put on substantially the same provisions in the Act of 1875 (which had been repeated in the Act of 1936) to be perpetuated. Had Parliament intended to repeat the pattern of section 58(1)(b) of the 1974 Act it would, no doubt, have followed the wording of that subsection. I therefore conclude,... that such works and other steps as are required by an abatement notice issued under section 80(1) of the 1990 Act must specify the works, or the other steps, as was decided in R v Wheatley."

Other authorities in this area, although arising out of different legislation from the Act in the present case, were raised before the court, in particular R v Chard [1984] 1 AC 279 and the speech of Lord Scarman at pages 294 to 295. There is a presumption that wording carried forward from one Act to a subsequent Act will be interpreted in the same way as judicial interpretation which arose in relation to the earlier Act. However, it is only a presumption.

It is a presumption which applies to the present case. The decision in Parlby, has stood for many years in relation to the previous Acts and, in the circumstances of the present case, it must be presumed to represent the correct interpretation of section 79(1)(a). It is pertinent to observe that in Halsbury’s Statutes, Fourth Edition, Volume 35 the annotation to section 79 comments:

"Premises. Sewage, disposal works and public sewers are not included in this term: R v Parlby cf Fulham Vestry v LCC."

The Environmental Health Encyclopedia, Volume 1 at paragraph 2-2055 also comments:

"There are perhaps substantial grounds for holding that sewers are not premises."

It refers to the Fulham Vestry case and, whilst expressing criticism of the judgment of Day J, does nothing to displace the belief that sewers are not premises (see also Professor Buckley’s book on The Law of Nuisance, Second Edition page 187). The court agreed entirely with the Deputy Stipendiary Magistrate.

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