Robb v. Dundee City Council [2002] ScotCS 37 (13th February, 2002)

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Cite as: [2002] ScotCS 37

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Cameron of Lochbroom

Lord Johnston

Lady Paton

XA183/00

OPINION OF LORD CAMERON OF LOCHBROOM

APPEAL

From the Sheriffdom of Tayside, Central and Fife at Dundee

in the cause

JUDITH ROBB (A.P.)

Pursuer and Appellant;

against

DUNDEE CITY COUNCIL

Defenders and Respondents:

________

Act: Sutherland; Anderson Strathern, W.S. (Mike Dailly, Govan Law Centre) (Pursuer and Appellant)

Alt: J. Williamson; Haig-Scott & Co., W.S. (Defenders and Respondents)

13 February 2002

The parties to this appeal are a secure tenant, in terms of the Housing (Scotland) Act 1987, ("the pursuer"), of premises in Dundee and the landlords and owners of those premises, ("the defenders"). In February 1998 the pursuer served upon the defenders an initial writ by way of a summary application to the sheriff at Dundee. In the writ the pursuer craves grant of an order under section 82(2)(a) of the Environmental Protection Act 1990 ("the 1990 Act") requiring the defenders to abate the nuisance described in the writ within a time specified in the order and to execute any works necessary for that purpose. After proof, the sheriff found in law that the pursuer had failed to prove that the premises occupied by her are a statutory nuisance within the terms of the 1990 Act and that she is not entitled to an order under section 82 of that Act. In terms of his decision dated 14 December 1998 the sheriff assoilzied the defenders from the crave of the writ. On appeal to the sheriff principal, the sheriff principal by interlocutor dated 21 December 1999 refused the appeal by the pursuer. The pursuer has now appealed to this court.

In her application the pursuer proceeds upon two distinct grounds. The first is that the premises are in such a state as to be prejudicial to the health of the pursuer and her young son, who lives with her, in that the subjects suffer from condensation, dampness and mould. The second is that since the premises suffer from condensation, dampness and mould and the risk of further condensation, dampness and mould growth, then even if the state of the premises is not prejudicial to health, nevertheless the premises are in such a state as to constitute a nuisance in that the condensation, dampness and mould at the subjects interfere with the pursuer's comfort and are offensive to her and her family.

These two separate and distinct grounds for the application reflect the provisions of section 79 of the 1990 Act as amended in accordance with paragraphs 2 to 7 of Schedule 17 to the Environment Act 1995 which extended Part III of the 1990 Act to Scotland. The relevant provisions are set out in the sheriff's note in detail and I do not rehearse them at length. However it is to be noted that section 79(1) begins as follows:

"Subject to subsections (1A) and (6A) below, the following matters constitute 'statutory nuisances' for the purpose of this Part, that is to say-

(a) any premises in such a state as to be prejudicial to health or a

nuisance"

and that sub-section (7) states that "prejudicial to health means injurious, or likely to cause injury, to health".

It was common ground between parties before this court, as it was before the sheriff and the sheriff principal, that the two limbs of section 79(1)(a) are quite separate and fall to be considered separately. Likewise it was common ground that, in relation to what constitutes "prejudice to health", the test is an objective one.

It was also accepted that the parties in an appeal such as the present are bound by the findings in fact made by the sheriff. For the pursuer to succeed in her appeal, it is necessary for her to be able to demonstrate that the sheriff and the sheriff principal erred in law in reaching the conclusions that they did on the facts found; in other words, that the findings in fact and law made by the sheriff, to which the sheriff principal adhered, were perverse in the face of the facts found.

State of the premises

While I will return to this matter again later in this opinion, it is necessary to keep in mind that the issues arising in the appeal must start from a consideration of the findings in relation to "the state" of the premises. I refer to what was said by Lord Wilberforce in his speech in Salford City Council v. McNally 1976 AC 379 at p. 389, namely, that the first task of magistrates in dealing with complaints under the analogous provisions of the Public Health Act 1936, was to find what was the condition of the premises. The phrase "the state" of any premises, in the context of section 79(1)(a) of the 1990 Act, requires to be given the narrow construction set out in the speeches of the majority in Birmingham City Council v. Oakley 2001 1 AC 617. That case was decided after the sheriff and the sheriff principal had reached their decisions. What has to be looked for is "a factor which in itself is prejudicial to health" - see Lord Slynn of Hadley at p.627F. Again, Lord Clyde, at p. 634A, noted that in approaching the matter of the state of the premises it was clear that an objective point of view was required and that one should not be looking to the particular requirements of a particular occupier. After quoting a passage from the judgment of Wills J. in Reg. v. Parlby 22 QBD 520, Lord Clyde went on to say this:

"It is then to the premises themselves that attention is to be directed. There must be something about the state of the premises which is prejudicial to health or a nuisance. The provision is not concerned with matters of construction such as may give rise to accidental injury. In that respect the physical state of the premises is not relevant. Nor is it concerned with mere matters of comfort or convenience which do not relate to any danger to health. But while it is matters of illness and disease rather than accidental injury or mere comfort which are relevant, that does not require the exclusion of consideration of the way in which the premises will ordinarily be used."

It was this last view about exclusion of consideration of the ordinary use of the premises that divided their Lordships. The majority view was that the relevant section did not extend to the layout of the premises, unavoidable use within the layout or the facilities which ought to be installed. Until 1995 there was separate Scottish legislation concerned with this area of public health. But it has long been recognised that English authority could be applied in the context of this legislation. I refer, for instance, to Broun - The Law of Nuisance in Scotland (1891) p.139 and following pages and to Upper District Committee of the County of Renfrew v. Wardrop's Tr. 1927 SLT (Sh. Ct.) 68. Since the two legislative systems have now been conjoined in the one Act, it follows that the decision in Oakley is binding.

The findings of the sheriff in the case can be summarised as follows.

[a] The subjects occupied by the pursuer and her young son are one of two ground floor flats within a block of six flats. The block was built in 1958. It is entered by a common close or hall.

[b] The pursuer's flat comprises a livingroom, two bedrooms, a kitchen and a bathroom. As constructed the flat has three exposed external walls of brick, cavity, brick construction, rendered on the external face and plastered on the inner face. On each of the three external walls there is wall cavity insulation. The fourth wall of the flat is a semi-exposed wall adjacent to the common close. This wall is of solid construction and not capable of benefiting from wall cavity insulation.

[c] The block was constructed according to the standards pertaining as at the time of construction. The subjects occupied by the pursuer are not in need of repair and there has been no problem regarding the level of maintenance carried out by the defenders as landlords. It is not disputed that there is no obligation on the defenders to carry out any works to bring the block up to the current building regulation standards which do not operate retrospectively.

[d] At the time of construction the subjects had a solid fuel fire heating system installed in the living room. This was subsequently bricked up and the defenders replaced the solid fuel fire with an electric radiant heater in the livingroom. This heater was not intended to provide whole heating for the flat. Energy for heating in the flat comes from the mains electric supply. There are electric supply sources for heating in each bedroom and in the hallway. In addition there is a manual controlled extractor fan in the kitchen and a humidistat fan in the bathroom to assist in providing adequate ventilation in the flat. Double glazing was installed in the flat by the defenders in January 1997.

[e] The pursuer took occupancy of the flat in July 1996. In August 1996 mould growth was noted on the walls and ceilings. This growth continued despite the efforts of the pursuer and her family to clean it off. Complaints were made to the defenders from January 1997 onwards. Severe dampness developed in the back bedroom from the date of entry forcing the pursuer's son to vacate it. The pursuer attempted to ventilate the flat as instructed by the defender's officials and to provide extra heating by installing a wallmounted convector heater in the hallway and a freestanding convector heater for each of the bedrooms. The pursuer, given her financial circumstances, applied as much heating as she could afford. She used both extractor fans but they did not prevent condensation dampness in the flat. The problem of dampness continued and mould growth damaged the decoration of the house and bedding, clothes and toys.

In addition the sheriff made findings in fact 71,72,73 and 75 as follows:

"71. Condensation in the pursuer's flat has been caused primarily by the lack of an adequate heat source to raise temperatures throughout the flat to sufficient levels. Such heating as there has been has not been able to be used as efficiently as would be ideal because of the limited insulating properties of the external walls.

73. Condensation dampness is likely to recur if there is no improvement in the heat sources. The single factor which would most likely remove the risk of condensation dampness from the pursuer's flat is the introduction of additional heating to those parts of the flat where there is at present no heating, i.e. the kitchen, bathroom and bedrooms.

75. The provision of a new heating system in the house, dry lining to the close wall and replacement of the close gate with a door of solid construction would make the potential reductions in the total fuel costs for the pursuer's flat and would reduce those costs to a level that the pursuer could afford to heat the house sufficiently in order to prevent condensation."

[9] In addressing the issues before him, the sheriff said this:

"Having considered all the submissions, documentary productions and case references I would say that I have found this a difficult case to decide. I have considerable sympathy with the pursuer. She has clearly been living and continues to live in conditions of discomfort and difficulty. She has attempted within her limited financial means to heat the property as best she can. It is also clear that her financial position is such that she is unable to heat the property to a sufficient level so as to abate the damp and its consequences. However, I would accept that I must leave such sympathies aside and approach the case totally objectively."

It is clear from this passage that the sheriff regarded the state of dampness in the flat as being "the factor" which constituted the state of the premises which he had to consider in the context of section 79(1)(a). As Lord Slynn of Hadley observed at p. 628B in Oakley, under reference to Birmingham District Council v. Kelly (1985) 17 HLR 572, "it was the mould which needed to be remedied by the provision of central heating and not the absence of central heating per se which made the state of the premises prejudicial to health". Counsel for the pursuer sought to pray in aid what he termed "structural defects" in the construction of the block of flats, which he suggested gave rise to the condensation, dampness and mould in the pursuer's flat. This submission appeared to reflect the reference in section 82(4)(b) of the 1990 Act to the case where the nuisance (i.e. the statutory nuisance) arises from any defect of a structural character. In that event, section 82(2) provides that proceedings for an order shall be brought against the owner of the premises. These structural defects, counsel said, were constituted by the nature of the construction of the block, and thus of the pursuer's flat, in the form of the existing insulation systems in both the three external walls and the fourth semi-exposed wall. These affected the ability of the external envelope to retain heat. This feature was exacerbated by the inadequacy of the heating arrangements which could be afforded by the appellant. But, in my opinion, these so-called defects are not defects of the character referred to in Oakley, namely, defective drains or lavatories or the like, such as to fall within the meaning of "the state" of the premises for the purposes of the legislation. It is relevant, I consider, to have regard to the concession that there was no obligation upon the defenders to carry out any works to bring the property up to the current building regulation standards (finding in fact 9). It is also relevant to take into account the terms of the evidence given by expert witnesses as recorded in findings in fact 43 and 44, allied to the findings that the flat was in not in need of repair and was apparently well maintained (finding in fact 10). I accept, of course, that a statutory nuisance can exist even if there has been no breach of building regulations or other statutory requirements. The flat was provided with electricity supply sources in the hallway and in each of the bedrooms as well as ventilation fans in the kitchen and bathroom, all of which were in working order. In condescendence 5 of her application, the pursuer asserts that the only provision for heating in the subjects is the electric fire in the living room. But provision of electrical sources of supply for heating alone can, in my opinion, be sufficient for provision of an adequate system of heating. It is then for the occupier to determine how those sources should be used for heating. In this case the sheriff had before him evidence that the existing heating and insulation systems could achieve and maintain a demand temperature within the living room and the rest of the house such as to minimise the risk of surface condensation and with it dampness and mould (findings in fact 43(b) and 70). In addition, he had evidence that the ventilation system is reasonably efficient and appropriate (finding in fact 44(a)). The pursuer asserts in her application that the subjects are hard to heat to a reasonable temperature without an inordinate amount of money spent on heating "due to deficiencies or inadequacies in the subject's structural characteristics which include inadequate insulation to the external walls and an uneconomic and inefficient heating system". But on the evidence this statement does no more than record the fact that the insulation values of the flat's walls do not now measure up to the standards required by current building regulations or to the standards of economy and efficiency that are now to be obtained with modern heating systems. In my opinion, these are not defects of the nature or kind such as to constitute the "state" of the premises for the purposes of section 79(1)(a) of the 1990 Act. I am fortified in this opinion by the decision in Greater London Council v. London Borough of Tower Hamlets (1983) 15 HLR 57 and in particular by the judgment of Griffiths J. at p.61 where he said:

"A landlord is required to apply his mind to the necessity of ventilation and, if need be, to insulation and heating. The landlord must provide a combination of these factors to make a house habitable for the tenant. However, once the landlord has provided these facilities, the tenant must use them. If it is shown in any further enquiry into condensation in this flat that the landlord has done everything reasonable and the cause of the continuing condensation is that the tenant is unwilling to use the appliances or any alternative means of heating the flat, then the landlord cannot be held responsible for the ensuing state of the premises."

In the present case there has been no suggestion that the house is not habitable or unfit for human habitation in the sense in which that phrase is used, for instance, in section 82(3) of the 1990 Act. I agree with the sheriff principal's conclusion, expressed when considering the submissions addressed to him in relation to section 82(4)(b) of the 1990 Act, that there was no evidence in this case that the dampness and condensation in the flat was caused by any form of structural defect. The reasons he gives for that conclusion seem to me to be unassailable.

Prejudice to health

The principal ground of appeal was directed to the finding in fact and law that the pursuer had failed to prove that her flat was in such a state as to be prejudicial to her health and that of her young son. Counsel for the pursuer maintained that having regard to findings in fact 37 to 41 setting out the medical evidence, allied to findings in fact 65 to 68 and findings as to the proven levels of condensation and existence of mould (findings in fact 25 to 30,32 and 33), the sheriff could have reached no other conclusion but that the dampness in the house was such as to be prejudicial to health. Counsel drew attention to the evidence of Mr. Watson, an architect led for the pursuer, recorded in finding in fact 44(a). This witness inspected the flat and thereafter prepared a report. In it he concluded that there as a continuing risk of condensation and mould occurring. He stated that the presence of mould will result in a high risk of the occupants being affected by respiratory ailments, etc. brought on by mould fungal spores. Counsel accepted that the sheriff had identified the test to be applied in determining the issue of whether the state of the premises was prejudicial to health, namely, that it was an objective one and did not require proof of actual injury or actual prejudice to health. However, the sheriff had erred in limiting this approach by referring only to the state of health of the pursuer and her son alone. This was most apparent in the passage where he expressed the view that the pursuer had failed to prove that the state of her flat was either injurious or likely to cause damage to her health and had accordingly failed to prove "prejudice to her health". The sheriff appeared to proceed upon the basis that, standing the evidence of a medical witness, Dr. Fennerty, that there were a wide range of factors which could relate to asthma, of which living in an allegedly damp house was just one of the possible factors, there was at the end of the day no independent evidence of "a severe state of dampness in the pursuer's flat". But there was evidence that there had been "severe dampness" in one bedroom (finding in fact 28) and the growth of mould in both bedrooms (findings in fact 28 and 29). Such mould growth was associated with severe levels and prolonged periods of condensation (findings in fact 65 and 67). When this material was set alongside the evidence of Dr. Fennerty and Mr. Watson, there was sufficient to have entitled the sheriff to hold that the pursuer had proved "prejudice to health", observing that that phrase required no more than that it be established that the state of the premises was likely to cause injury to health.

Counsel for the pursuer accepted that the sheriff principal had also correctly identified the proper test when he has said that the premises could be adjudged as being prejudicial to health "if it was demonstrated that the condition of the premises was such that a pre-existing illness was likely to be exacerbated or that damage to health was likely to be caused because of the state of the premises, as opposed to demonstrating that the condition of the premises had caused actual physical injury to the occupants". The sheriff principal had gone on to say that if, applying that objective test, the conditions within the flat were such that a common pre-existing illness such as asthma were to be exacerbated, then it was clear that injury to health would be likely to occur to an ordinary person. The sheriff principal had however erred when he opined that, even assuming the evidence to be interpreted as strongly as possible in favour of the pursuer, the critical findings in the case were to the effect that an infinite range of factors might exacerbate an existing asthma and there was no evidence to show how severe the dampness had to be before such exacerbation could occur. This was to ignore the thrust of unchallenged evidence before the sheriff which, properly interpreted, was sufficient to demonstrate that the dampness and mould within the flat was likely to cause damage to health.

For her part, counsel for the defenders was content to rest upon the reasoning of the sheriff and sheriff-principal, while drawing particular attention to finding in fact 39 and the evidence of Dr. Fennerty that there was no established medical evidence to suggest a causal relationship between asthma and damp housing.

Neither the sheriff nor the sheriff principal, it seems to me, appear to have had any proper regard to the evidence given by Mr. Watson. I note that his report was specifically referred to in the pursuer's pleadings. It was prepared following an inspection of the property. Its terms (see finding in fact 44(a)) are general in that it stated that there is a continuing risk of condensation and mould occurring in the flat and that the presence of mould will result in a high risk of the occupants being affected by respiratory ailments, etc brought on by mould spores. In London Borough of Southwark v. Simpson 1998 Env. LR 553 at p.559 Collins J. indicated that expert evidence on the matter of whether premises are in such a state as to be likely to be injurious to health can be given by experts who do not have a medical qualification. In that case the particular expert had disavowed any experience or expertise in the field of a relationship between damp and mould and injury to health. But so far as the findings in fact are concerned, no such disavowal was expressed by Mr. Watson. Furthermore, in finding in fact 41 the sheriff recorded that Dr. Fennerty's final conclusion was that living in a damp house could exacerbate an existing asthma related condition. That evidence, put with Mr. Watson's evidence and the general thrust of the other evidence given about the existence of condensation, dampness and mould over a prolonged period of time within the flat and of its continuance, was, I consider, quite sufficient to establish that, from an objective point of view, the state of the premises was such as be likely to cause injury to health. Accordingly, the sheriff, in my opinion, was wrong in his conclusion that there was no evidence led which suggested that living in the conditions described in the pursuer's evidence would cause respiratory illness. That was an error in law which vitiated his finding in fact and law that the pursuer had failed to prove that the flat occupied by her was in such a state as to be prejudicial to health. By the same token, I consider that the sheriff principal's judgment was similarly flawed when he agreed with the sheriff's assessment that the pursuer had not brought sufficient evidence to establish her case. I consider that it must be assumed from the findings in fact that Mr. Watson's evidence was acceptable to the sheriff. I do not read the evidence of Dr. Fennerty and Mr. Watson, as set out in the findings in fact, as competing, as the sheriff principal appears to suggest.

Person responsible

The next question which then arises is whether the pursuer has established that the defenders were responsible for the state of the premises as prejudicial to health in that the condition of condensation, dampness and mould in the premises was attributable to their act, default or sufferance. In my opinion, the pursuer has failed to do so. I can state my reasons shortly. I agree with the sheriff that at the end of the day the pursuer's problems are caused by the fact the flat is inadequately heated, primarily because the pursuer is unable to afford to pay more money to provide the necessary further heating. But sources of electrical power for heating are available within the flat. The findings in fact are to the effect that the existing heating and insulation systems can achieve and maintain a demand temperature within the flat sufficient to minimise the risk of surface condensation (see findings in fact 43(b) with 69 and 70). It is nothing to the point that such surface condensation arises because of the limits of the insulation properties inherent in the form of the building construction used for the flat. The fact that the pursuer, given her financial circumstances, applied as much heating as she could afford is also nothing to the point if facilities are available within the premises to enable the occupant to provide the required degree of heating. There was no suggestion that there was any defect in the electrical supply sources available or that these sources were unsuitable for the purpose of heating the flat. I agree with counsel for the defenders that the decision in Dover District Council v. Farrar 1982 12 HLR 32 is directly in point. I also agree with her that the decision in Greater London Council v. London Borough of Tower Hamlets 1983 15 HLR 57 is not applicable to the circumstances in this case. For instance, counsel for the pursuer accepted that in the present case there was no suggestion that there had been any loss of ventilation by reason of the removal of the original coal fired heater in the living room of the flat. Nor was it be suggested that the cost of the additional heating set out in finding in fact 72 was abnormal or extravagant from an objective point of view. After all, the change to electric heating was made to secure, amongst other things, the advantage for the occupier of such premises of cheaper electric heating (finding in fact 12). I observe that while finding in fact 72 proceeds on the basis of an estimate of cost for heating the whole house to comfort temperature, comfort temperature is set at a figure in excess of the critical temperature for the prevention of condensation within flat (cf. findings in fact 59 and 70). In my opinion, the approach of both the sheriff and the sheriff principal to this issue and their determination that the situation complained of has not arisen through any act, default or sufferance of the defenders, cannot be faulted.

Nuisance

I turn now to consider the submissions based on the second limb of section 79(1)(a) out of deference to the arguments put before the court. At the outset it should be noted that this case proceeds on the hypothesis, as set out in condescendence 6, that it has not been proved that the subjects are prejudicial to health; that is to say, the pursuer has not established that there is any actual injury of likelihood of injury to health whether looked at subjectively or objectively. Rather, the case is based on the proposition that "condensation, dampness and mould at the subjects interferes with the pursuer's comfort and is offensive to her and her family". In the approach of the pursuer in submission before the sheriff, it would appear that the restricted nature of the case was lost sight of. Thus the sheriff records that it was said that the case had been established by "the evidence of the existence of cold conditions in the subjects, mould growth and other manifestations of condensation, dampness such as were conducive to an increased house dust mite population, the health of the pursuer and her young son, damage to items of moveable property from mould, damage to decoration and the need to redecorate, and the likelihood of all these problems continuing". There is no finding in fact relating to an increase in house dust mite population. Insofar as there is reference to the health of the pursuer and her young son, this case proceeds on the assumption that the conditions in the flat are not prejudicial to the pursuer or her son's health. If the issue of prejudice to health is set aside, the only relevant findings in fact to support this case, in my opinion, are that mould growth has damaged the pursuer's decoration and certain items of moveable property, such as bedding, clothes and toys, and that the pursuer has been required to wipe mould from walls (finding in fact 33) and the more general points as to the persistence of the conditions of condensation, dampness and mould within the flat.

Before this court, as before the sheriff principal, the parties were at one in agreeing that the meaning to be ascribed to the word "nuisance" was to be derived from the common law principles of the law of Scotland, in the sense of the effect that another's conduct might have upon the complainer in the latter's enjoyment of property such as to entitle the latter to a remedy based upon an action for nuisance. Reference was made in particular by the sheriff principal to authorities bearing on this issue and certain of these authorities were referred to before this court. Some reliance was placed on the case of NCB v. Thorne 1976 1 WLR 543, but the sheriff principal correctly pointed out that Scots law does not recognise any practical distinction between public and private nuisance - see, for instance, Broun - The law of negligence in Scotland p.8. At the end of the day I did not understand counsel for the either of the parties to demur from the description of a nuisance in the law of Scotland provided by the sheriff principal, namely, as being what can reasonably be described as intolerable behaviour or as something which would not be tolerated by a reasonable person. Nor did I understand there to be any dispute between parties that the question whether or not a nuisance existed, was a matter of fact and degree and one primarily for the judge at first instance to assess.

The sheriff determined this part of the pursuer's case by holding that discomfort was not enough, that the evidence was insufficient to support the claim that the pursuer had suffered and continued to suffer anything intolerable, albeit that the damp and the allied conditions in the house clearly caused the pursuer and her son discomfort. The sheriff principal took note of what was said by the sheriff, against the background of the description of nuisance referred to above and his view, in my opinion the correct view, that it was for the judge at first instance to assess the question as a matter of fact and degree. He concluded that the sheriff not only had applied the correct test in assessing the term nuisance but that it could not be said that the view the sheriff had reached, having applied the correct test, was unjustified or inappropriate. I can find no fault with the approach of either the sheriff or of the sheriff principal to the evidence relevant to the issue of whether a nuisance of the kind averred by the pursuer existed or with their conclusions. Reference was made in the course of the debate to the case of Renfrew District Council v. McGourlick 1987 SLT 538 as supporting the proposition that the condition of dampness and mould constituted a nuisance within the contemplation of the 1990 Act as amended. But I observe from the report at p.540 that the findings (which were unchallenged before the Court of Session) were to the effect that the growth of mould and black fungus in the houses concerned could properly be regarded as both a threat to health and a serious and distressing interference with the whole quality of life in the houses. The only issue before the Court of Session was concerned with the wholly different question of the order which had been made as a result.

In his judgment, the sheriff principal expressed the view that the Environmental Protection Act 1995 in Scotland is only concerned with the description of statutory nuisance as opposed to establishing liability for nuisance in different sorts of conditions on a criminal standard. In doing so, he was addressing submissions on behalf of the defenders that nuisance cannot arise if what happened arose out of some independent act of a third party without culpa and which affected only those person who occupy premises where the alleged nuisance is said to have taken place. The sheriff principal sets out the submissions made to him and these were in large part rehearsed before us. It is clear that the issue was more particularily focused before the sheriff principal than before the sheriff. It was said that the law of nuisance derived from the law of neighbourhood. It did not arise in the relationship of landlord and tenant which was the relationship between the parties in the present case. Reference was made to Watt v. Jamieson 1954 SC 56 and more particularily to the opinion of Lord President Cooper in the passage cited by the sheriff principal. It was said that this passage required to be read in a manner which excluded from its ambit a complaint, as in this case, by a tenant that the state of the property which he leased was such as to give rise to what would otherwise constitute a nuisance if it derived from use by a neighbour of that neighbour's property. A landlord was not a neighbour in the sense that that word was used by Lord President Cooper. Reference was also made to Fleming v. Hislop 1882 10 R 426 and the passage cited by the sheriff principal from the opinion of Lord Justice Clerk Moncrieff. Thus, not only did there require to be interference with the enjoyment of their property by its occupiers, which interference was plus quam tolerabile, but culpa also required to be established. That had not been established in the present case.

In my opinion, and in agreement with the sheriff principal, I consider that the approach of counsel for the defenders is misconceived. This is a statute which proceeds upon the basis of "statutory nuisance" as defined in section 79. That statutory nuisance is conceived within the legislative purpose of the 1990 Act which applies both to England and, since 1 April 1996, to Scotland. If a statutory nuisance, in the sense of some relevant state of affairs or of conditions within any premises, to which section 79(1)(a) of the Act applies, whose effects upon the aggrieved person are plus quam tolerabile, is proved to exist, then certain consequences, both criminal and civil, may follow. When regard is had to the provisions of, for instance, section 82(1) and (2), it is plain that the first question for the sheriff in summary proceedings such as the present, is to determine whether "the alleged nuisance exists". I refer to what was said by Woolf J. in Birmingham District Council v. Kelly at p.576, a case concerned with similar provisions found in Part III of the Public Health Act 1936. To establish a "nuisance" in terms of section 79(1)(a) of the 1990 Act, the aggrieved person must not only prove the existence in the premises of that state or condition of which he complains and show that its effects upon the occupiers of the premises are plus quam tolerabile. He must also show that the nuisance falls within the ambit of the statute. It is only after the sheriff is so satisfied that he requires to determine where, for the purposes of the statute, liability for the nuisance lies and, in particular, whether the defender is "the person responsible for the nuisance" in terms of section 79(7)(a), that is, the person to whose act, default or sufferance the nuisance is attributable. It the aggrieved person is a tenant and the person responsible for the nuisance is the landlord, there is nothing in the statute which prevents the sheriff from considering what order to make in relation to the landlord as to the steps to be taken by him to abate the statutory nuisance. Insofar as the common law may proscribe such liability for nuisance as affects his tenant, on the part of a landlord, and I am far from accepting that it does so, it is plain from the cases cited to us that in the context of the 1990 Act and its predecessors, there was no such inhibition in the operation of their provisions. They have been founded upon by tenants in relation to both limbs of what is now section 79(1). I refer, for instance, to Renfrew District Council v. McGourlick.

I would add that it seemed to me that as the submissions for both the pursuer and the defenders were developed on this aspect of the case, the fact that what was in issue was whether a statutory nuisance had been established, was lost sight of. Reference was made to the definitions of common law nuisance in both Bell's Principles para.974 (cited by the sheriff principal) and in Broun - The law of nuisance in Scotland, p.2, and more generally to cases concerned with the issue of liability for common law nuisance in Scotland. But counsel did not refer us to a passage in Broun at p.9 where the author warns that nuisance at common law must not be confused with statutory nuisance. Dealing with the then current legislation, Broun says this:

"From the definitions there given, it will be seen that statutory nuisance as dealt with in the Public Health Acts is confined to a much narrower compass than nuisance at common law. With few exceptions, all nuisances under the Public Health Acts must be injurious to health. As already pointed out, a nuisance at common law may be occasioned not only by injury to health, but also by material discomfort and annoyance, and by real substantial injury to property."

I find it difficult to see why damage to the occupier's personal property or the decoration of the premises caused by a condition of dampness and mould, or indeed any condition of the premises which is not proved to be likely to endanger the life or affect the health of any occupant of the premises or to have done so in fact, should constitute a nuisance struck at by the legislation. Whether or not such damage or such a condition might otherwise give rise to a claim as a common law nuisance is neither here nor there. I consider that the sheriff was correct in surmising that it was not sufficient to prove that the premises were in such as state as to interfere with the personal comfort of the occupiers. Nothing in the history of the legislation which is set out in the speech of Lord Slynn of Hadley in Oakley suggests that this should be so. At p. 625B Lord Slynn quoted with approval from the judgment of Wills J. in Reg. v. Parlby. The same passage was cited by Lord Clyde. The Act of 1875 related to "premises in such a state as to be a nuisance". Wills J. said:

"We do not attempt to define every class of case to which the first head applies [i.e. a nuisance], 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 or limb."

Later in his speech at p.627C Lord Slynn referred to the words that now appear in section 79(1)(a) as having the same objective as the earlier statutes, namely, to deal with matters which were in themselves prejudicial to health because of germs or smells and the risk of disease. Accordingly the words "in such a state as to be prejudicial to health" were directed to the presence in the house of some feature which in itself is prejudicial to health in that it is a source of possible infection or disease or illness. I read the speeches of Lord Hoffman and Lord Millett as being to the same effect. In the passage from Lord Clyde's speech already quoted above, he also clearly indicates that the provision in section 79(1)(a) is not concerned with mere matters of comfort or convenience which do not relate to any danger to health. Lord Steyn, who agreed with Lord Clyde, interpreted the state of the premises referred to in the provision as comprehending inadequacy "as far as health and hygiene were concerned". Again, Lord Widgery in Coventry City Council v. Cartwright 1975 1 WLR 845 at 849, in a passage approved in Oakley, said that " I think that the underlying conception of the section is that that which is struck at is an accumulation of something which produces a threat to health in the sense of a threat of disease, vermin or the like." Before the sheriff and again before the sheriff principal, reference was made to Betts v. Penge Urban District Council 1942 2 KB 154 in support of the proposition that interference with the personal comfort of the occupiers of premises in question, without being injurious to health, was sufficient for the establishment of a statutory nuisance. But that decision was the subject of adverse comment and was disapproved in Salford City Council v. McNally 1975 3 WLR 87. I refer especially to the speech of Lord Edmund Davies at p.95. Nowhere in the cases cited to us is there any suggestion that damage to property, in the absence of proof of any danger or prejudice to health arising from the nuisance complained of, will suffice for proof of a statutory nuisance in terms of section 79(1)(a) of the 1990 Act. These considerations seem to me to fortify the conclusion reached by the sheriff, concurred in by the sheriff principal, that the pursuer had not proved the existence of a statutory nuisance within the ambit of the second branch of her case.

Nevertheless, in my opinion, even if the pursuer had succeeded in proving that the flat occupied by her was in such a state as to be a nuisance in terms of her alternative case, her case must inevitably fail at the next hurdle, by reason that the nuisance complained of derives from the same state of the premises complained of in relation to the case of prejudice to health. Therefore the pursuer cannot prove that that the nuisance has arisen through any act, default or sufferance of the defenders.

Conclusion

For the above reasons, while differing from the sheriff and sheriff principal as to whether there was sufficient evidence to establish that a statutory nuisance existed in the sense that the state of the premises was such as to be prejudicial to health, nevertheless I am of opinion that in the result the pursuer's summary application falls to be dismissed by reason that she has failed to establish that the defenders were the persons responsible for the state of the premises complained of. That being so, in my opinion the interlocutor of the sheriff of 14 December 1998 would fall to be amended to the extent of (1) substituting for the first finding in fact and law a finding that "the pursuer has proved that the flat occupied by her is in such a state as to be prejudicial to health", (2) adding at the end of the second finding in fact and law the words "for the purposes of section 79(1)(a)", (3) substituting for the third finding in fact and law a finding that "the pursuer's flat constitutes a statutory nuisance within the meaning of section 79(1)(a) of the Environmental Protection Act 1990", (4) substituting for the fourth finding in fact and law a finding that "the pursuer is a 'person aggrieved by the existence of a statutory nuisance' in terms of section 82(1) of the 1990 Act", (5) substituting for the fifth finding in fact and law a finding that "the defenders are not 'the person responsible for the nuisance' in terms of section 82(4)(a) of the 1990 Act" and (6) substituting for the sixth finding in fact and law a finding that "the statutory nuisance did not arise from any defect of a structural character in the flat in terms of section 82(4)(b) of the 1990 Act". Quoad ultra I would affirm the interlocutor of the sheriff insofar as it repelled the pleas in law for the pursuer, repelled the second, third and fifth pleas-in-law for the defenders and assoilzied the defenders from the crave of the writ. Further, I would affirm the interlocutor of the sheriff principal of 21 December 1999 refusing the appeal.

Robb v. Dundee City Council [2002] ScotCS 37 (13th February, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Cameron of Lochbroom

Lord Johnston

Lady Paton

XA183/00

OPINION OF LORD JOHNSTON

APPEAL

From the Sheriffdom of Tayside, Central and Fife at Dundee

in the cause

JUDITH ROBB, (A.P.)

Pursuer and Appellant;

against

DUNDEE CITY COUNCIL

Defenders and Respondents:

_______

Act: Sutherland; Anderson Strathern, W.S. (Mike Dailly, Govan Law Centre) (Pursuer and Appellant)

Alt: J. Williamson; Haig-Scott & Co., W.S. (Defenders and Respondents)

13 February 2002

In this case the pursuer raised a summary application in Dundee Sheriff Court against the defenders who are owners of the local authority house tenanted by the pursuer. The pursuer craved an order under section 82(2)(a) of the Environmental Protection Act 1990 requiring the defenders to abate the nuisance described in the writ. This nuisance, as averred by the pursuer, is that the subjects tenanted by her are in such a state as to be prejudicial to her health and that of her son. It is specifically averred that the reason for this is that the subjects suffered from condensation, dampness and mould. The pursuer also tabled an alternative crave to the effect that the state of the subjects constitute a nuisance in terms of the Act. She therefore claimed that she was an aggrieved person in terms of the Act.

The Sheriff heard an extensive proof and made considerable findings in fact but a useful summary of the relevant facts is made by the Sheriff Principal in his judgment:

"The subject are a local authority flat in a tenement block and comprise a livingroom, two bedrooms, a kitchen and a bathroom. The Sheriff notes in detail the essential construction features of the building. When she took up the tenancy the pursuer was supplied with a two-bar electric fire in the livingroom which was not intended to heat the whole flat. The pursuer's father provided two additional convector heaters. The pursuer's expenditure on electricity (which supplies all the power for the subjects) is noted, and it is clear that these costs impose heavy demands on the pursuer's income. The pursuer took occupancy of the flat in July 1996. In August 1996 mould growth was noted in the walls and ceilings and this growth continued despite the efforts of the pursuer and her family to clean it off. Complaints were made to the defenders from January 1997 onwards. Severe dampness developed in the back bedroom from the date of entry forcing the pursuer's son to abandon it. The pursuer attempted to ventilate the flat as instructed by the defenders' officials and to provide extra heating. The problem continued however and mould growth damaged the decoration of the house and bedding, clothes and toys. Details of the pursuer's attempt to heat the house are recorded in the findings but these appear to have been unsuccessful in stemming the development of the mould growth. The pursuer suffers from asthma. Dr Fennerty, a Consultant Physician at the Southern General Hospital in Glasgow thought that living in a damp house could exacerbate asthma, but it was not shown how severe the dampness must be before this was liable to happen. The Sheriff concluded that condensation levels could be categorised as mild (condensation running off windows), slight (staining to wall paper and small patches of mould), and severe (areas of black mould). He also carefully calculated the average weekly expenditure the pursuer would have to incur in order to achieve comfortable temperatures throughout the house. He concluded that the single factor most likely to remove the risk of condensation dampness was additional heating. Further the Sheriff was of the view that a new heating system, dry lining to the close wall and replacement of the close gate with a solid door would reduce heating costs to a level that the pursuer would afford. A new central heating system would be a fixture."

Thereafter the Sheriff made certain findings in fact as follows:

"1. That the pursuer had failed to prove her flat was in such a state as to be

prejudicial to her health;

2. That she had failed to prove that the flat occupied by her was in such a

state as to be a common law nuisance and therefore did not constitute a statutory nuisance under section 79(1) of the Environmental Protection Act 1990;

3. If the flat had been such a statutory nuisance, the pursuer would have

been a person aggrieved by the existence of that nuisance in terms of section 82(1) of the 1990 Act;

4. If the flat had been such a statutory nuisance the defenders would not

have been the persons responsible for the nuisance in terms of section 82(4)(a) of the Act; and

5. If the flat had been such a statutory nuisance, the nuisance would not

have arisen from any defect of a structural character in the flat in terms of section 82(4)(b) of the Act."

Against those findings the pursuer appealed to the Sheriff Principal who refused the appeal hence the case comes before this court as an appeal against his decision.

We heard an extensive debate which featured, inter alia, the following authorities: The Environmental Protection Act 1990 - Part III; Salford City Council v. McNally [1975] 3 W.L.R. 87 (H.L.); Birmingham City Council v. Oakley [2001] 1 A.C. 481; Cunningham v. Birmingham City Council 1998 30 H.L.R. 158; London Borough of Southwark v. Simpson [1999] Env. L.R. 553; Pearhouse v. Birmingham City Council [1999] Env. L.R. 536; National Coal Board v. Thorne [1976] 1 W.L.R. 543; National Coal Board v. Neath [1976] 2 All E.R. 478; Betts v. Penge Urban District Council [1942] 2 K.B. 154; J.R. Fleming & Another v. James Hislop & Others (1886) 13 R. 43 (HL.); Francis Clifford Watt v. Harvey Morro Jamieson 1954 SC 56; R.H.M. Bakeries v. Strathclyde Regional Council 1985 S.C. 17 (H.L.); Renfrew District Council v. McGourlick 1987 S.L.T. 538; Renfrew District Council v. McGourlick 1988 S.L.T. 127; Meri Mate Ltd v. City of Dundee District Council 1994 S.C.L.R. 960; Kennedy v. Glenbelle 1996 SLT 1186; Godfrey v. Conwy [2001] Env. L.R. 38; Warner v. London Borough of Lambeth (1984) 15 H.L.R. 42; Carr v. Hackney London Borough Council (1996) 28 H.L.R. 747; Quigley v. Liverpool Housing Trust [2000] Env. L.R. D9; Dover District Council v. Farrah & Others (1982) 2 H.L.R. 32; Greater London Council v. London Borough of Tower Hamlets (1983) 15 H.L.R. 57; Pike v. Sefton M.B.C. [2000] Env. L.R. D31; Anderson v. City of Dundee Council 2000 S.L.T. (Sh. Ct.) 134; Nottingham City District Council v. Newton [1974] 1 W.L.R. 923; London Borough of Southwark v. Ince (1989) 21 .L.R. 504; and Birmingham District Council v. McMahon (1987) 19 H.L.R. 472.

The relevant parts of the legislation are as follows:

"79. (1) Subject to subsections (1A) to (6A) below, the following

matters constitute 'statutory nuisance' for the purpose of this Part, that is to say -

(a) any premises in such a state as to be prejudicial to health or a

nuisance;

(7) In this Part-

...

'person responsible'-

(a) in relation to a statutory nuisance, means the person to whose

act, default or sufferance the nuisance is attributable;

...

'prejudicial to health' means injurious, or likely to cause injury to health;

...

82. (1) A magistrates' court may act under this section on a complaint

or, in Scotland, the Sheriff may act under this section on a summary application, made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.

(2) If the magistrates court or, in Scotland, the Sheriff is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the premises or,..., the court or the Sheriff shall make an order for either or both of the following purposes-

(a) requiring the defendant or, in Scotland, the defender to abate

the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance and requiring the

defendant or defender, within a time specified in the order, to execute any works necessary to prevent the recurrence;...

(4) Proceedings for an order under subsection (2) above shall be brought-

(a) except in a case falling within paragraph (b), (c) or (d) below,

against the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural

character, against the owner of the premises;

(5) Subject to subsection (5A) below, where more than one person is responsible for a statutory nuisance, subsections (1) to (4) shall apply to each of these persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

...

(8) A person who, without reasonable excuse, contravenes any requirement or prohibition imposed by an order under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one tenth of that level for each day on which the offence continues after conviction."

As will be seen from the findings in fact and law five separate issues arise, one of which is not in dispute namely that, all other things being equal, the pursuer is a person aggrieved by the existence of the nuisance if established.

Before considering each of the remaining issues in turn it is relevant in my opinion to make certain general observations.

In the first place the court, in considering this matter, is concerned solely with the construction of a statutory provision of which sight must not be lost. Secondly, the statutory provision is concerned with state of premises, which is essentially a question of fact. However, it is to be viewed against the decision of the House of Lords in Oakley whereby a majority of the House held that the relevant legislation was directed at the presence in premises of some feature in itself prejudicial to health as a source of possible infection, disease or illness and did not extend to the layout of the premises or the way they were used. This narrow construction contrasts with that of the minority preferring a broader view. This court is, however, bound by the majority opinion and must approach this case against that background.

Against that background, again as a matter of generality, I am of the opinion that the legislation is directed against general risks of injury to health rather than it being incumbent upon a particular person who is aggrieved to prove that his or her health personally is likely to be affected. While it may raise the same issue, if the matter is only being viewed generally, I am of the view that it is as far as the person aggrieved has to go, for him or her to establish a state of the premises by reference to certain features which medical evidence led in support would establish as a general risk to health. As will be seen in this case, the pursuer failed on the first branch of the matter by reason of the Sheriff not being satisfied that the features he found proved to exist in the premises as set out in the summary of facts would be likely to exacerbate the pursuer's asthmatic condition, i.e. a position personal to her. I consider that the pursuer need not have periled her case on such a narrow front if indeed in fact she did so, it being sufficient, if medical evidence had been led in support, that the features found to exist in the flat would be likely to cause a general risk of some damage to health to anybody.

Turning to the first aspect of the case, namely, whether or not damage to health was established, the Sheriff held that it was not on the basis that the medical evidence as set out in his findings 37 to 41 were not sufficient to establish a likely causal connection between the pursuer's recognised asthmatic condition and the features found to exist in the flat. Counsel for the appellant argued that this view was perverse when the medical evidence was properly understood, which, in any event, the Sheriff had failed to achieve. The Sheriff Principal held that the Sheriff was entitled to reach the conclusion that he did and accordingly did not interfere with it.

The findings referred to are unsatisfactory and confusing, if not contradictory. Initially I had come to the conclusion that the pursuer having concentrated on the asthmatic issue, as I have already indicated, periled her case on a narrow ground which she failed to establish. However, I have considered whether or not, generally, the evidence might support the more general position that I have already set out. After considering the particular circumstances of this case and the reasoning of your Lordship in the chair, I am persuaded it is open to us to reverse the finding of the sheriff.

This brings me to consider the second aspect of the subsection, namely, whether or not, on the facts found, a nuisance has been established within the context of the statute.

On this aspect of the case there was a marked contrast between the approach of counsel.

The position of counsel for the respondents against the background of a number of well-established authorities in the common law of Scotland was that common law principles applied to construe the word "nuisance" in the statute which meant that the full aspect of liability in nuisance had to be established which in turn, she submitted, meant interference with property by a third party to the extent that it created a situation which the occupant could not reasonably be expected to tolerate. The position of counsel for the appellant was as that set out by the Sheriff Principal to the effect that one simply looked for the characteristics of nuisance which would otherwise establish such a liability without there being any need for interference by a third party, provided the result was such that the occupant should not be reasonably expected to tolerate the situation.

There was some debate as to whether the common law of England or Scotland should be applied in this context if common law principles were to rule in the matter, since it was recognised that there was some divergence between the two, not least in the context of so-called public nuisance, it having to be borne in mind that the legislation with which we are concerned was lifted from an English Act and inserted in 1995 into the Scottish Act. I do not regard this issue as material.

It is significant that neither counsel were able to provide us with any authority in England where a claim under the relevant legislation has succeeded in relation to nuisance rather than circumstances likely to be injurious to health. However, we were referred to National Coal Board v. Thorne supra which was concerned with public health and the abatement of a nuisance with regard to property in disrepair. This case was said to be authority for the proposition that common law principles applied to the construction of the word "nuisance" and that, furthermore, the word was to be given its natural meaning following the views of Lord Wilberforce in Salford City Council v. McNally. The high point, however, for the respondents' position is the statement by Watkins J. on page 547 as follows:

"Speaking for myself I would adopt the words of Lord Wilberforce so as to state that a nuisance cannot arise if what has taken place affects only the person or persons occupying the premises where the nuisance is said to have taken place. A nuisance coming within the meaning of the Public Health Act 1976 must be either private or public nuisance as understood by common law."

The reference to Lord Wilberforce is a reference back to Salford City Council supra and it is also accepted that the Public Health Act was the precursor of the present legislation. Thus it was submitted to us that as the only person affected was the inhabitants of the relevant property where the nuisance was said to exist, he or she could not claim.

For my part I am unable to accept as relevant or correct the dictum I have quoted from Watkins J. in the present context which is in any event obiter. In my opinion, in so far as common law principles have to apply, they do so only to the extent of requiring the physical features present in the premises to be such as would, all other things being equal, lay a basis for a claim in nuisance. I do not consider that a reference to common law principles requires there to be any notion of neighbourhood and interference by a third party, principally because, as I have already stated, here we are concerned with construing a statute. It therefore seems to me to be incongruous, if not meaningless in the context of the legislation, to deny a remedy to the persons occupying the premises where the features said to create a nuisance exist, involving no actual and likely damage to health.

In my view, therefore, what a person alleging nuisance in this context has to do is to establish by evidence features in the relevant premises which would lay a factual basis for a claim in nuisance if liability was being sought to be established at common law in that respect against a third party. That does not mean that a third party has to be involved on any notion of neighbourhood. In this case the features complained of are said to have been created by a failure on the part of the defenders to act, but that is not on a neighbourhood basis but rather on a contractual basis. That does not seem to me to make any difference.

In this context the question seems to me to be whether or not the facts found established with regard to the features of the premises could be such as to lay a basis for a claim in nuisance. The Sheriff approached the matter on the basis of an issue of comfort not being enough, or rather discomfort being insufficient and the Sheriff Principal declined to interfere with that approach.

In my opinion the facts established in the summary I have quoted are sufficient to base a claim in nuisance, all other things being equal and, accordingly, both the Sheriff and the Sheriff Principal have reached a decision which can be categorised as perverse on the facts against the legal background I have proposed. In my opinion the pursuer's case does establish the existence of a nuisance within the meaning of the statute by reason of the condition of these premises with regard to dampness and the other features as narrated. The obvious conclusion is that the state of the premises imposed an intolerable burden on the occupants. In my opinion, therefore, this ground of appeal succeeds.

However, the matter does not end there because the appellant, pursuer also has to satisfy the court that, in terms of section 82(4)(a) the defenders are "the persons responsible for the nuisance".

The parameters of this issue are set out in two English cases namely Dover District Council supra and London Borough of Tower Hamlets supra.

In Dover supra it was held that the construction of the houses and the method of the heating supplied were perfectly proper and adequate and would have maintained the houses in a state which would not have been prejudicial to the health of the occupants had the system been used. Thus the conclusion was that the nuisance arose because of the act of default of the tenants, even though their refusal to use the systems on account of expense was wholly understandable. I do not consider that this case is overruled by Oakley supra.

In marked contrast Tower Hamlets supra, which was again concerned with dampness in a local authority house, established that the reasons were no adequate ventilation in the kitchen and a lack of adequate heating not having been provided by the owner who was thus said to be the person who had caused the nuisance and was thus responsible for it. Furthermore the local authority had removed an open fire originally in the premises which had contributed to the conditions.

In my opinion the important statement in this case comes from Griffiths L.J. at page 61 where he says:

"A landlord is required to apply his mind to the necessity of ventilation and if need be to insulation and heating. The landlord must provide a combination of these factors to make the house habitable for the tenant. However, once the landlord has provided the facilities the tenant must use them. If it is shown in any further enquiry into condensation in this flat that the landlord has done everything reasonable and the cause of the continuing condensation is that the tenant is unwilling to use the appliances or any reasonable alternative means of heating the flat then the landlord cannot be held responsible for the ensuing state of the premises".

In a very brief report in Pike supra another Divisional Court followed Dover in similar circumstances.

There is little of assistance in the Scots authorities in this matter though the case of Renfrew District Council v. McGourlick supra is instructive on this issue and also on the issue of construction of the word "nuisance" in the statute.

Without going into the findings in fact in any detail it is sufficient to summarise the relevant factual issues upon the basis that the local authority have provided facilities by way of power points in every room to which heaters could be attached, and a fire in the livingroom. However, upon the findings the pursuer did not avail herself completely of these facilities by reason of expense. It appears that she had been offered or provided with additional heaters by her father but could not use them because of her restricted finances. There is a finding that, with additional expense, adequate heating could have been provided (findings 70 to 72).

The sharp issue in my opinion is therefore whether or not the local authority in the present case have met the test laid down by Griffiths L.J. and, in particular, have provided "facilities" sufficient to meet the problem if the tenant availed herself of them.

Although it may seem harsh by reason of the fact that the pursuer's restricted finances are obviously not her fault, in my opinion Griffiths L.J's test is satisfied in the present case by the provision of power points to enable heaters to be used in each room. I do not consider that the local authority was required to go so far as to provide the actual heaters, nor have they done anything in the premises such as occurred in the Tower Hamlets case to reduce the effect of heating on a structural or physical basis. If the problem is financial, another course has to be pursued.

In these circumstances, in my opinion, this case is on all fours with Dover and, accordingly, in agreement with the Sheriffs the inevitable conclusion must be that the person responsible for the nuisance is not the landlord but the tenant i.e. the pursuer appellant.

In these circumstances I would refuse this ground of appeal. The same reasoning applies in relation to the first issue of damage to health. I agree in this respect with your Lordship in the chair. That ground of appeal must also be refused.

There remains only as a live issue the question of whether or not there is a defect of a structural character in terms of subsection (4)(b).

This plainly raises a separate issue from that of "person responsible" since the subsection is directed to the physical state of the premises as provided for by the owner or at least a structural defect arising from lack of maintenance if it does not arise in the original structure of the building.

In this context counsel for the appellant concentrated on the findings in relation to the lack of insulation which he maintained met the notion of defect of a structural character.

While I might be prepared to accept that lack of insulation is part of the structure of the building, I do not consider that it is a defect. It may render heating less efficient and conversely insulation may improve the integrity of the building as regards heating, but it is not, in my opinion, a defect such as would cause damage, which is necessary as I see it for this subsection to apply. A contrasting situation would be a leaking roof whether by defect in structure or a lack of maintenance.

On this simple ground I therefore consider that this ground of appeal also fails.

For these reasons, which differ in some respects from the views of the Sheriff and the Sheriff Principal, I agree with the disposal of the case proposed by your Lordship in the chair, and would refuse the appeal.

Robb v. Dundee City Council [2002] ScotCS 37 (13th February, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Cameron of Lochbroom

Lord Johnston

Lady Paton

XA183/00

OPINION OF LADY PATON

APPEAL

From the Sheriffdom of Tayside, Central and Fife at Dundee

in the cause

JUDITH ROBB (A.P.)

Pursuer and Appellant;

against

DUNDEE CITY COUNCIL

Defenders and Respondents:

________

Act: Sutherland; Anderson Strathern, W.S. (Mike Dailly, Govan Law Centre) (Pursuer and Appellant)

Alt: J. Williamson; Haig-Scott & Co., W.S. (Defenders and Respondents)

13 February 2002

Whether premises in such a state as to be prejudicial to health

Section 79(7) of the Environmental Protection Act 1990 provides that "prejudicial to health" means injurious, or likely to cause injury, to health. "Likely" is defined in the Oxford English Dictionary as meaning inter alia "that looks as if it would happen, be realised, or prove to be what is alleged or suggested; probable". The phrase "injury to health" is quite general, and prima facie refers to any injury to health which a human being might suffer if exposed to the state of the premises. There is nothing in the Act to suggest that the words used should be given anything other than their normal meaning.

Parliament therefore appears to have intended to extend the protection offered by the Act not only to cases where actual damage to health has occurred, but also to cases where no injury to health has yet occurred, but the state of the premises has been proved to be likely to cause injury to health.

I do not therefore accept the submission by counsel for the respondents that it is insufficient for an occupier to lead general evidence (medical or other) that dampness is likely to cause illness such as chest infection, colds, or pneumonia. Nor do I agree with the sheriff-principal's final formulation at p. 62B of the Appeal Print, as that formulation appears to suggest that proof of likelihood of injury to health is insufficient to satisfy section 79, actual injury to health also being a prerequisite.

Bearing in mind findings-in-fact 37 to 41, 44, and the findings that the most severe category of dampness existed in two rooms in the flat (findings-in-fact 28, 29, and 66), I am of the view that the evidence established that the premises were in such a state as to be likely to cause injury to health. I respectfully adopt the reasoning and conclusion reached by Lord Cameron of Lochbroom and agree that the first finding in fact and law falls to be altered as he indicates.

Nuisance

Section 79(1)(a) extends to premises in such a state as to be prejudicial to health, to premises in such a state as to be a nuisance, and to premises in such a state as to be both prejudicial to health and a nuisance: cf. dicta of Lord Wilberforce in Salford City Council v. McNally [1976] A.C. 379; Cunningham v. Birmingham City Council (1998) 30 H.L.R. 158 at p.161.

I agree with the sheriff-principal's conclusion at pages 68-69 of the Appeal Print that the word "nuisance" in section 79(1)(a) refers to any state of affairs which would be recognised in Scots common law as something which a person should not have to suffer: cf. Bell's Principles of the Law of Scotland, paragraph 974; Broun, The Law of Nuisance in Scotland (1891) pages 1-3; Hart v. Taylor, (1827) 4 Mur. 307; Fraser's Trs. v. Cran (1877) 4 R. 794; Hislop v. Fleming (1882) 10 R. 426, (1886) 13 R. (H.L.) 43; Watt v. Jamieson, 1954 SC 56. The statute is not concerned with culpa, but uses the definition "nuisance" to denote a set of physical circumstances recognised by the law as something plus quam tolerabile. The distinction recognised in England between public and private nuisance is not a classification used in Scots law, and it may be unavoidable that the application of this United Kingdom statute will produce different results, depending whether the premises in question are situated north or south of the border.

A nuisance may exist, yet not be prejudicial to health; and circumstances may exist which are prejudicial to health, yet not amount to a nuisance. Dicta suggesting the contrary in NCB v. Thorne [1976] 1 W.L.R. 543 at p. 548B-C are obiter, and in my view proceed upon too restrictive a construction of the Act. Accordingly I do not accept that it is necessary for proof of nuisance amounting to a statutory nuisance in terms of section 79(1)(a) for the appellant to establish that the environment is "injurious, or likely to cause injury, to health".

Nor do I consider it necessary that there be any interference by a third party in order to constitute a statutory nuisance within section 79(1)(a). Section 79 must be construed as a whole. As indicated above, I consider that the word nuisance in section 79(1)(a) denotes a physical state of affairs recognised by Scots common law as something which a person should not have to suffer. Section 79(7) defines the person responsible for the statutory nuisance as "the person to whose act, default or sufferance the nuisance is attributable". "Sufferance" is defined in the Oxford English Dictionary as meaning inter alia "sanction, consent, or acquiescence, implied by non-intervention". The statute therefore envisages a nuisance which may have come into existence without the interference of a third party.

It is my view that the state of affairs described in the findings-in-fact amounts in law to circumstances which no person should have to suffer: the circumstances are plus quam tolerabile. A flat intended for use as a home, with a persistent condensation dampness problem resulting in the growth of mould on walls, damage to decoration, mould on bedding, clothes and toys, and one room becoming unusable, cannot but be classified according to our law as a nuisance.

It follows that in my view it was not open to the sheriff or the sheriff-principal to reach the conclusions they did.

Person responsible for the statutory nuisance: section 82(4)(a)

Section 82(4)(a) provides:

"Proceedings for an order under subsection (2) above shall be brought -

except in a case falling within paragraph (b), (c), or (d) below, against the person responsible for the nuisance...

'Person responsible' is defined in section 79(7) as 'in relation to a statutory nuisance... the person to whose act, default or sufferance the nuisance is attributable...'"

In Birmingham City Council v. Oakley [2001] 1 AC 617 (a decision of the House of Lords, issued some time after both the sheriff's and the sheriff-principal's judgements), the majority of their Lordships determined that the question whether any premises were in such a state as to be prejudicial to health or a nuisance should be decided on the basis of the premises themselves, without any additional factor resulting from use, normal or otherwise, by the occupants.

Adopting that approach, the findings-in-fact appear to me to disclose premises which, as a result of their component materials, design, and construction, have an inherent defect, namely a particularly pronounced vulnerability to condensation dampness, resulting in a damp environment proving hard to heat, with persistent mould growth and resulting in damage to decoration, bedding, clothes and toys.

The findings-in-fact note that the unpleasant effects of this inherent defect may be mitigated to some extent by heating the premises, and that fairly constant heating of each room in the flat to a certain temperature may succeed in keeping the worst effects of dampness at bay.

In my view, in light of the ruling of the majority in Birmingham City Council v. Oakley and on a proper analysis of the findings-in-fact, the particular level of heating applied to the premises is a "use", normal or otherwise, by the occupants. It matters not that a landlord or owner of the premises may have supplied and fitted heating devices, such as central heating or electric radiators: unless a heating system is controlled to the correct temperature by someone other than the occupant, it will be the occupant's decisions and actions, and therefore the occupant's "use", which determines the amount of heating used in the premises.

I therefore consider that, on a proper construction of sections 79 and 82 in accordance with the majority ruling in Birmingham City Council v. Oakley, the state of the premises must be considered independently of the amount of heating which might arise from the occupant's use. It follows in my view that the premises in question are constantly vulnerable to condensation dampness and all the consequences described above. That state of affairs is attributable to the persons who brought the premises into existence and who continue to have responsibility for their structure and structural maintenance, namely the respondents and their predecessors, whose responsibilities they have inherited. It is the respondents and their predecessors whose "act, default or sufferance" has brought about the state of affairs which is plus quam tolerabile. It is therefore my view that, as the law now stands, and on the basis of the findings-in-fact, it is an error in law to conclude that the respondents were not the person responsible for the nuisance.

Esto it is appropriate to take into account the amount of heating applied to the premises, I consider that the respondents are nevertheless the person responsible for the nuisance, for several reasons.

Firstly, the findings-in-fact in my view demonstrate that the respondents did not provide an adequate heating capacity. Having blocked off the fireplace and flue, they provided a two-bar electric fire in the living-room. They provided no other means of heating the flat. I do not consider the provision of electrical sockets to amount to the provision of heating capacity. As was pointed out by counsel for the appellant, an electric socket provides electrical power, which can be used for a variety of domestic appliances including lights or hoovers: but in order to obtain heat, a tenant would require to provide some sort of heating device. Accordingly in my view, on the facts found by the sheriff, the lack of heating necessary to combat the dampness problem was attributable to the respondents.

Secondly, even if the provision of a two-bar electric fire and electrical sockets throughout the flat were to be regarded as adequate provision of the heating capacity necessary to combat the dampness problem, it is nevertheless my view that it is the respondents' act, default or sufferance which underlies the condensation dampness and the difficulty in abating or eradicating it. An average occupant might wish - through choice or necessity - to live at temperatures lower than those necessary to combat dampness. Yet the state of the premises in question is such that in order to keep the dampness at bay, the occupant must devote a certain proportion of his or her income to heating the premises simply for the purpose of combating dampness. If the occupant cannot or will not maintain the heating at the necessary level, the dampness results in mould growth and damage to decoration, bedding, clothes and toys. In such circumstances, I am unable to accept that it is the occupant's act, default or sufferance which is the causa causans of the nuisance. In my view, the respondents brought the premises into existence and continued thereafter to be responsible for their structure and structural maintenance: they are accordingly the person responsible, the person to whose act, default or sufferance the nuisance is attributable.

Thirdly, even if the appellant's actings were held to have amounted to a contributory factor such that she must be regarded as sharing responsibility for the statutory nuisance, I consider that the terms of section 82(5) are such that the respondents remain responsible and liable to an order against them in terms of section 82(2).

Accordingly it is my view that the sheriff and sheriff-principal erred in law in concluding that the respondents were not the person responsible for the statutory nuisance in terms of sections 79 and 82.

Person responsible for the statutory nuisance: section 82(4)(b)

Section 82(4)(b) provides:

"Proceedings for an order under subsection (2) above shall be brought -

(b) where the nuisance arises from any defect of a structural character,

against the owner of the premises".

In terms of the findings-in-fact, the respondents are the owners of the premises.

It should be noted that the words in section 82(4)(b) are "any defect of a structural character", and not "any structural defect". "Defect" is defined in the Oxford English Dictionary as meaning inter alia "shortcoming, failing". In my view, there may be a considerable difference between a structural defect and a defect of a structural character. In particular, the phrase "structural defect" implies that the premises are structurally unsound, possibly to the extent that there is a risk of some or all of the premises cracking or subsiding or disintegrating in some way. By contrast, a defect of a structural character could, in my view, cover situations where there existed a defect not threatening the structural integrity of the premises, but nevertheless arising from the manner in which or the materials from which the premises were built.

Any "defect of a structural character" has to be assessed at the date of the court hearing: cf. dicta of Lord Hoffmann in Birmingham City Council v. Oakley:

(" ... when a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood.") However it may, in my view, be irrelevant whether or not specific building regulations have been fulfilled. A defect in premises may exist when all relevant building regulations have been complied with. In many cases, such a defect may be minor, or may only be actionable on the basis of contractual terms rather than environmental statutes. But if the defect amounts to a statutory nuisance within the meaning of sections 79 and 82 of the 1990 Act, it is my view that the provisions of the Act apply, irrespective of the overall structural integrity of the building, and irrespective of compliance with building regulations.

In the present case, I consider that the significant condensation dampness problem described in the findings-in-fact cannot but be described as a "defect". Further, it is clear from the findings-in-fact that the defect arose from the manner in which, and the materials from which, the premises have been constructed: in other words, it is a "defect of a structural character". Features contributing to the defect include the lack of adequate insulation in the walls, and the lack of a close door of solid construction. The defect does not threaten the structural integrity of the building, but is nevertheless a "defect of a structural character".

It follows therefore that in my view it was not open to the sheriff or sheriff-principal to reach the conclusions which they did in relation to section 82(4)(b).

Conclusion

In my view, the appeal should be allowed, and the case remitted to the sheriff, in order that he should:

(a) make additional findings-in-fact as follows:

"13A. While the defenders provided a heating appliance in the sitting-room of the flat, they did not provide a heating appliance in any other room.

13B. The heating appliance provided for the sitting-room was insufficient to heat the flat throughout."

(b) make alterations to the findings in fact and law as follows:

in respect of the first, third, and fourth findings in fact and law, by substituting the findings formulated by Lord Cameron of Lochbroom;

(2) by substituting for the second finding in fact and law, a finding that

"The pursuer has proved that the flat occupied by her is in such a state as to be a common law nuisance";

(3) by substituting for the fifth finding in fact and law, a finding that "The

defenders are the person responsible for the nuisance in terms of section 82(4)(a) of the 1990 Act";

(4) by substituting for the sixth finding in fact and law, a finding that "The statutory nuisance has arisen from a defect of a structural character in terms of section 82(4)(b) of the 1990 Act."

(d) fix a hearing on the question of the appropriate steps to be taken by the local authority to abate the nuisance.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robb v. Dundee City Council [2002] ScotCS 37 (13th February, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/37.html Cite as: [2002] ScotCS 37