Camden London Borough Council v Gunby

Council serving notice complaining of statutory nuisance – Notice served on managing agent – Whether notice properly served – Whether managing agent within definition of “owner” in section 80(2) Environmental Protection Act 1990 – Crown Court allowing appeal against notice – Council’s appeal allowed In August 1997 the appellant council served a notice on the respondent in respect of premises under section 80 of the Environmental Protection Act 1990. The respondent was a partner in a firm of surveyors who acted as the managing agent of the premises. The statutory nuisance complained of was that the premises were in such a state as to be prejudicial to health within section 79(1)(a) of the 1990 Act. The respondent appealed against the notice raising six grounds of appeal, including that, by virtue of section 80(2)(b) of the 1990 Act, the notice should have been served on the owner of the premises and not the respondent. By section 80(2) “[an] abatement notice shall be served… (b) on the owner of the premises; where the person responsible for the nuisance cannot be found… on the owner or occupier of the premises.” The magistrates’ court dismissed the appeal. The respondent appealed to the Crown Court, which allowed the appeal holding, on a preliminary point of law, that the respondent was not the “owner” of the premises and accordingly the notice had been served on the wrong person. The council appealed by way of case stated, contending that on the true construction of section 80(2), the respondent, as managing agent, was at all material times to be regarded as the owner and had been duly and properly served with the abatement notice. It was submitted that since the meaning of “owner” within section 80(2)(b) was not defined in the Act, it was to be given the meaning used in a whole series of Acts regarding statutory nuisances from 1848 onwards, and culminating in section 64(1) of the Clean Air Act 1993, namely: “the person for the time being receiving the rack-rent of the premises, whether on his own account or as agent or trustee for another person, or who would so receive the rack-rent if the premises were let at a rack-rent”. Held: The appeal was allowed. The respondent’s submission that the applicable definition was to be found in section 81A(9) of the 1990 Act (as inserted by section 10(2) of the Noise and Statutory Nuisance Act 1993), which did not include a person receiving the rack-rent as an agent, was rejected. The definition in section 81A(9) was stated to apply to “this section”, which gave rise to an ambiguity as to the meaning of “owner” where it appeared undefined in section 80(2). The court was therefore entitled to resolve the ambiguity and to reconcile it with the overwhelming legislative history. Applying common sense it could be concluded that “an owner” of purposes of section 80(2) of the 1990 Act was the person for the time being receiving the rac-rent of the premises, whether on his own account or as agent or trustee for another person, or who would so receive the rack-rent if the premises were let at a rack-rent. Accordingly, the matter was to be remitted to the Crown Court. John Williams (instructed by the solicitor to Camden London Borough Council) for the appellants; Edwin Buckett (instructed by Eversleys) appeared for the respondent. Thomas Elliott, barrister