s.82(12) of the Environmental Protection Act 1990: costs consequences

At first blush the costs consequences of s.82(12) of the Environmental Protection Act 1990 can seem jarring and a little surprising. The provision binds the Court on its decision with respect to the principle of costs, removing discretion as to whether costs are payable by a landlord to a complainant, though importantly not as to the amount of those costs.

Paraphrased, s.82(12) stipulates that where, in an application by a complainant for an order to abate a statutory nuisance, that complainant proves that the nuisance existed at the date of laying the complaint, notwithstanding that the Court may find there not to have been a nuisance at the date of hearing, the Court “shall” order the defendant to pay the complainant “such amount as the Court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.”

In terms therefore, even if the complainant ‘loses’ by not obtaining an abatement order, they may still be entitled to all of their costs of the proceedings, subject to the Court’s discretion as to the assessment of those costs.

The provision does not provide for “costs” per se. Rather, it mentions compensation for expenses incurred in the proceedings. However, this usually translates to meaning the complainant’s legal costs. What it does mean, though, is that the monies are payable to the complainant, not the complainant’s legal representatives.

The apparently counter-instinctive effect of s.82(12) finds explanation in the dictum of Moses J in their judgment in the matter of Hollis v. Dudley Metropolitan Council (1997) 30 HLR 902.

In that case, Moses J considered that the restrictive provision,

“balances the risk of no recovery, if, despite having suffered from a nuisance at the time notice is given, the nuisance is abated before the complaint is made. If the nuisance is abated at the time of making the complaint then he will not recover his costs, however reasonably they may have been incurred in giving notice and identifying the defects which constitute the statutory nuisance. But if the nuisance persists at the time the complaint is made he has an assurance that he will recover those expenses. Such an approach provides a powerful incentive to a landlord, who may not be a local authority, to avoid a statutory nuisance occurring at all.” (Emphasis added).

Perhaps the most compelling justification for the insertion of s.82(12) in the form it takes into the Environmental Protection Act 1990 came from Parliamentary Under-Secretary Baroness Blatch during the Bill’s consideration in the House of Lords. The Parliamentary Under-Secretary said,

“In the context of action by local authorities we consider the mandatory costs provision must be regarded as archaic and obsolete. It is true that we have accepted the need for mandatory costs in the case of actions brought by private individuals  […] because the resources of people such as, for example, housing tenants who take action […] may be limited. They could be put off taking action unless they are reasonable sure of being awarded costs.” (Emphasis added).

What this means for landlords, whether private or local authorities, is that if a complainant brings a private prosecution under s.82(2) of the Environmental Protection Act 1990 for an order to abate a nuisance as defined by s.79 of that Act, then even if the nuisance is abated between the laying of the complaint and the hearing, they will still find themselves at the barrel end of a potentially draconian costs liability.

It also means that even if there is a finding that between the laying of the complaint and the hearing the landlord ceased to become responsible for the nuisance, for example because the complainant refused access to abate it, the landlord will still be looking at a costs liability if the nuisance was extant at the time of the complaint.

It is often the case that s.82(12) comes as something of an unwelcome shock to landlords at the conclusion of a successful defence on its merits.

The provision and its effects should be a frontal-lobe consideration at all times when bringing and meeting complaints under s.82(2) of the Environmental Protection Act 1990, and when considering settlement proposals.