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113
King's Bench Divisional Court.—Wednesday, 9th December, 1903.
Before The Lord Chief Justice of England, Mr. Justice Lawrence,
and Mr. Justice Kennedy.
Nokes and Another v. The Mayor, &c., of Islington.
By-law of L.C.C. under Sec. 39 (and 16), P.H.L.A., 1891—Lodging House—
Water-closet Accommodation—Notice Before Proceeding.
Judgment.
The Lord Chief Justice : I think the objection taken to this by-law by
Mr. Woodfia in the way he has stated it is a good objection. In reply he
summarized his argument very concisely and neatly by stating that it was
objected before the Magistrate that the by-law was unreasonable, because in
the analogous circumstances under Section 37 it is contemplated that the
Sanitary Authority shall give a specific notice ; that this by-law contemplates
none, and therefore, the by-law is unreasonable. I think in substance that is a
good objection.
I have no doubt whatever as to the power of the County Council to make
these by-laws, I think the point taken by Mr. Woodfia originally that this must
be regarded as a lodging house notice, and that inasmuch as lodging house
water-closet accommodation is not governed by Section 94 this lodging house
by-law for providing water-closets is bad, is not a good point. I agree with
Mr. Courthope-Munroe's argument that Section 39 is a re-enactment with some
amendment of the old provisions which now puts upon the County Council the
duty which was previously put upon certain other local authorities. I think,
therefore, that under Section 39 this is quite within that section. That these
sanitary powers onght to be construed liberally we have often pointed out. It
is competent to the County Council to make an order in connection with the
water-closet by-laws that there shall be what they think at any rate a right
and proper minimum of water-closet accommodation in respect of any tenement
or any class of tenement, but that does not decide the question for reasons
which I think will appear to be obvious. Sub-section 3 of Section 39 imposes
the duty upon the Sanitary Authority of observing and enforcing the by-laws
under this section. The by-laws themselves contemplate that any person who
offends against one of the by-laws shall be liable for every such offence to a
penalty of £5.
This case illustrates the importance of there being some notice given to the
person complained of. Nokes and Nokes collected the rent which Gates paid,
and I agree with the argument of Mr. Courthope-Munroe that having regard
to Section 100 they ought to be treated as standing in the position of their
clients ; there is no doubt about that. On the other hand Gates is the
responsible person for allowing more than the 12 persons to be in the house
with one water-closet. Therefore, it is a case in which injustice may be done
if proceedings are taken against people who may have partly parted or wholly
parted with the control of their premises, unless some knowledge is given to
them before proceedings are taken, because they may attempt to put pressure,
as they did here, or more pressure on their tenant to reduce the number. But
why I think the by-law which does not contemplate any notice being given to
the landlord or owner before he is proceeded against for a penalty is bad,