In the Magistrates’ Court at Highbury Corner, Preliminary Ruling, 6 November 2017.
Our client (the Prosecutrix) brought a private prosecution against the managing agents of the property that she resided in since the freehold owner was out of jurisdiction in Cyprus. The Prosecutrix had been housed by the Council in discharge of its housing duty under section 193 of the Housing Act 1996 and complained that a statutory nuisance had existed since 2011. She sought an order under section 82 (2) of the Environmental Protection Act 1990 to abate the nuisance complained of. She claimed that the managing agent was the ‘person responsible’ for the nuisance under section 82 (4) of the Act on the basis that it had entered into an agreement with the Prosecutrix and the Council to delivery property management and maintenance services. Further, the Prosecutrix relied upon the meaning of owner established in the case of the London Borough of Camden v Gunby  4 All ER 602. Gunby determined that on the true construction of section 80 (2) (b) of the Act, (which dealt with the ability of Local Authorities to serve abatement notices on owners of properties in which a statutory nuisance exists) the word ‘owner’ included a managing agent who received a rack rent for the premises.
The managing agents sought to defend our client’s complaint on the basis that they did not regard themselves as the ‘person responsible’ for the statutory nuisance under section 82 (4) of the act. They argued that they could not be liable as the ‘owner’ of the premises since they have never received any rent in respect of our client’s occupation. They submitted that they receive a ‘daily charge’ from the Council from which they deduct a fee before the remainder of the funds are transferred to the freeholder. Moreover, the agents contended that the word ‘owner’ is not defined in relation to section 82 of the Act but is defined in sections 80 and 81. The Prosecutrix, they argued, relied upon the definition of ‘owner’ set out in 81A, which does not apply to section 82 of the Act:
“In this section “owner”, in relation to any premises, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the premises or, where the premises are not let at a rack rent, would be so entitled if they were so let”.
The managing agents went on to contend that Gunby could be distinguished from the circumstances of the instant case, since it dealt with the service of an abatement notice rather than a private prosecution under the Act, which is penal in nature.
After considering legal arguments from both sides, the Judge delivered a preliminary ruling determining that the managing agents were legally capable of being a ‘person responsible for the nuisance’ under section 82 (4). The fact that they had taken responsibility for the repairs, even if they had not caused the nuisance themselves, was persuasive evidence which supported the Judge’s view. The Judge did not accept the managing agents’ concerns that an order for abatement would be overly punitive since, if such an order were made and subsequently breached, the agents could potentially rely on the defence of reasonable excuse. As set out in Gunby, the agents could recover their expenses by making deductions from the rent collected on behalf of the freeholder and, as a result, no injustice is done to them as managing agents.
The Judge found that the agents did in fact receive rent from the property in respect of our client’s occupation. As such, the agents were acting as a trustee for the freeholder.
In considering the purpose of the section 82 EPA proceedings, the Judge considered Rose LJ’s reasoning in the ruling in Gunby, which sets out that landlord should not be able to frustrate the abatement of serious public health issues:
“The principle purpose of Part III of the Act is to ensure that statutory nuisances are promptly abated or prevented. To this end, the enforcing authority or private individual, who also has powers under the Act, should be able readily to identify a person connected with the premises who can speedily be served with a notice. By targeting the person receiving the rack rent, or the person entitled to receive the rack rent, the enforcing authority or private individual is able to identify persons sufficiently closely connected to the premises to be held responsible for their condition…”
“In my judgment Mr Williams’s submissions are correct. I pay full regard to the penal nature of the statute, creating, as it does, a criminal offence, or more accurately, one should say, restating a criminal offence… It seems, to my mind, that the reference in s.81A(9) to ‘this section’ immediately poses a question mark or ambiguity as to the meaning of owner, where it appears undefined in s.80(2). That being so, a judge is entitled to resolve that ambiguity by recourse to the overwhelming legislative history to which I have referred, a legislative history which, it is to be noted, not only precedes this Act by 150 years but also succeeds it in the terms of the Clean Air Act 1993 section 64. That being so, the answer to the question imposed by the case stated, as to whether the Crown Court was correct in concluding that the respondent was not the owner of the premises within the meaning of section 80(2)(b), is ‘no’”.
The Judge in the instant case held that, ‘The effect of disapplying Gunby from the instant situation would be to allow the absentee landlord to frustrate the purposes of the EPA 1990.’