Yetunde Dania answers the common questions surrounding the Environmental Protection Act 1990.
Q: I am familiar with claims for compensation in the County Court under section 11 Landlord and Tenant Act 1985 but can landlords really be prosecuted in the Magistrates' Court for disrepair?
A: Yes, they can. The relevant legislation is the Environmental Protection Act 1990 (the Act) and in particular section 82 of the Act. A tenant would pursue the private prosecution of their landlord if the condition of their premises constituted a "statutory nuisance".
Prosecution pursuant to section 82(2) of the Act will only be successful if the Magistrates' Court is satisfied that:
- the alleged statutory nuisance exists; or
- that although abated, the nuisance is likely to recur on the same premises.
For the purposes of residential premises a statutory nuisance will exist if the conditions at the premises are either prejudicial to the health of the occupants or are a nuisance, section 79(1)(a) of the Act.
Q: Is it only a tenant who can prosecute their landlord under this legislation?
A: No, such proceedings may be initiated by any person who is "aggrieved" by the statutory nuisance. Whilst ordinarily this will be a tenant or licensee, the ability to bring such a private prosecution applies to anyone else who occupies the premises in question, such as family members or lodgers.
It should also be noted that under the Act the prosecution is of the person responsible for the nuisance or, where such person cannot be found, against the owner of the premises which will often be the landlord.
Q: What type of proceedings are they?
A: Proceedings instigated under section 82 of the Act are criminal in their nature from the outset and they carry the criminal standard of proof (i.e. the prosecution will have to prove their case beyond reasonable doubt).
Q: What is the procedure for bringing a private prosecution under the Act?
A: Where an aggrieved person believes their premises constitute a statutory nuisance, they must first send a letter to their landlord/ the person responsible for the statutory nuisance, giving notice of the alleged statutory nuisance which exists by providing reasonable details of the issues and giving their landlord/the person responsible for the statutory nuisance 21 days to carry out works to abate the nuisance.
On the expiry of 21 days, if the aggrieved person still considers that a statutory nuisance exists, they can ask the Magistrates' Court to issue a summons by serving an "information" at the Magistrates' Court together with supporting documents on the court officer.
The information will contain a statement of the alleged offence etc., the capacity in which the defendant is being served and detail the relevant section(s) of the Act under which the defendant is being prosecuted.
The court will allocate a hearing date which both parties must attend and it will be necessary for the landlord to be served with the summons and supporting documentation.
At the first hearing, if the landlord pleads guilty, a nuisance order will be made. A nuisance order details the works which need to be carried out to abate a statutory nuisance and gives the timescale in which these works are to be carried out. Furthermore, an order may be made requiring the landlord to pay the prosecution's costs, known as a costs order.
If the landlord pleads not guilty, the court will adjourn the case to a day when there is sufficient time for the case to be tried. However, it is quite possible that there may be a couple of hearings before that time especially if the landlord has commenced work and merely needs more time to complete them. In such circumstances, at the final hearing when it is confirmed the statutory nuisance has been abated, a costs order may be made.
Alternatively, if the matter proceeds to trial, and a nuisance order is made, it is imperative the landlord complies with the nuisance order as breach of the same constitutes a further criminal offence which can be penalised by way of a daily fine in certain circumstances.
Q: What evidence does the prosecution have to produce?
A: Usually there will be a statement by the aggrieved person detailing how they have been affected by the conditions in the premises and a report from a suitably qualified expert, such as an environmental health officer, or a surveyor.
It should be noted that in order to give evidence on issues which are considered to amount to being prejudicial to health, the expert must have some expertise in public health issues.
Q: What steps should a landlord take to minimise the risk of being prosecuted?
A: If a landlord receives a 21 day letter before action, it is imperative they take immediate action so the property is inspected by a suitably qualified person and, they arrange for any necessary works to be carried out as soon as possible to abate the statutory nuisance.
Whilst the timescale is 21 days, an aggrieved person may decide to delay issuing proceedings if they can see that the landlord is committed to carrying out the necessary repairs. Hence, the landlord may be able to negotiate additional time for the works to be completed.
However, if the condition of the premises is in dispute, ultimately the issue will be determined by the strength of the evidence of the experts and as such it may be prudent for the landlord to have the premises inspected by an environmental health officer.
A detailed record should be kept of any refusal by the aggrieved person to provide access to the premises, especially during the 21 day notice period.
Finally, the landlord should obtain legal advice. This is particularly important if it is anticipated that the aggrieved person will prosecute.
