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‘When it comes to statutory nuisance, you ARE the expert’

Taking the ‘prejudicial to health’ line isn’t used nearly as much as it could be, says EH doctoral researcher Tim Everett.
22 July 2021 , Tim Everett

Colleagues will know that there are two separate limbs to most categories of statutory nuisance – a procedure still used to deal with many hundreds of thousands of complaints each year.

In my training sessions I take the line that we don’t use the “prejudicial to health” (PTH) limb as often as we should – we are much more comfortable using “nuisance”. The trouble is that this usually means at least two different premises need to be involved.

A reason often advanced for this non-use is that the environmental health qualification does not enable us to make such judgements, and that came up again recently in a webinar I was running for CIEH.

This is simply wrong. Look at many of the big cases where PTH has been proved, and you will find it has been because of evidence given by environmental health practitioners.

But even more to the point, this has come up as a legal issue in the High Court and been resolved. I would urge colleagues to look at the cases of Patel v Mehtab (1980) 5 HLR 78, and O’Toole v Knowsley MBC (2000) 32 HLR 420. The first involved statutory nuisance provisions under the Public Health Act 1936, and the second the current provisions in Part III of the Environmental Protection Act 1990.

In both cases, two EHPs had given evidence that the dampness and other defects made the dwelling PTH. In both cases the magistrates decided that there was no statutory nuisance. In both cases the High Court quashed the magistrates’ courts’ decisions and upheld the appeals on a point of law.

Knowsley is especially powerful. Apart from reaffirming the decision in Patel, it also took account of the High Court decision in Cunningham v Birmingham City Council (1997) 30 HLR 158. That case made it clear that the PTH test is an objective one – it is the effect or likely effect on the health of an ordinary person that matters, not the health of particular occupants. This means – among other things – that you do not need medical evidence relating to the individuals’ current state of health.

So the position from these cases is this:

- Qualified and experienced EHPs can give expert evidence in respect of matters that are PTH.
- Magistrates’ courts are not able to substitute their own lay opinions where such evidence has been provided.
- Medical evidence is not required, either generally or in relation to the health of any current occupants.
- The defects of the dwellings in question made them PTH based on the EHPs’ expert evidence.
- Colleagues will be aware that anyone can give evidence in court as to matters of fact, but only experts can give opinions. Your opinion counts!

Tim Everett is a former CIEH President, EH doctoral researcher and trainer.

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