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is because that I find in Section 37 (the Sanitary Authority being the persons
who are to say what is the minimum number of water-closets which according
to the circumstances are to be required), and the Sanitary Authority being the
persons who have power with regard to any house whether built before or after
the commencement of the Act to say what is sufficient water-closet
accommodation for a given number of people, and who have to give a statutory
notice calling upon the landlord or owner to provide that the terms of the
section shall be carried out, and that if not he shall be liable to a penalty of £5,
it contemplates that the Local Authority shall give notice to the landlord or
owner before proceedings are taken. I think, therefore this objection to a
by-law which imposes a penalty for a breach of it, especially when you
remember it is intended to be put in force against people who are not in fact
owners but put in the position of owners, is a good one, and that there should
be the same kind of notice given to them before proceedings are taken as is
contemplated by Section 37. I think, therefore, this by-law which provides
that proceedings may be taken and that the landlord shall provide, and does not
make provision for a notice to be given before proceedings are taken is not a
reasonable by-law.
Mr. Justice Lawrence : I agree.
Mr. Justice Kennedy: I only wish to say what, of course, my Lord
intended, that the by-law is bad taking Section 26 in the respect which my
Lord has pointed out in a judgment in which I entirely concur, because it must
be read with Section 28 under which the proceedings are taken. The by-law
indicates something which is to be done, and Section 28 says with regard to
that—that if it refers to the other by-laws —if there is a breach of them, then
it shall be treated as an offence, and penalties may be inflicted both for the
breach and also for its continuance if continued.
Mr. Courthope-Munroe : My Lord, then as regards the costs. You see
we did in fact give notice.
The Lord Chief Justice : No.
Mr. Courthope-Munroe : We were really enforcing the by-law as it stood.
The Lord Chief Justice : No. We have indicated that the matter can be
cured perfectly easily. The notice you gave is not the proper kind of notice.
Mr. Courthope-Munroe : No doubt the London County Council will make
a new by-law.
The Lord Chief Justice : It is quite easy to put something into a by-law
provided that if the owner upon having proper notice shall not do what is
requested, that then he shall be liable to a penalty. I do not see why the
usual consequences should not follow.
Mr. Courthope-Munroe : We did in fact give notice. Your Lordship
is now holding that the by-law is bad because it did not contain an obligation
to give a notice. We in fact did give a notice.
The Lord Chief Justice : You gave an intimation in which you said that if
it was not obeyed the statutory provisions would be put in force.
Mr. Courthope-Munroe : We gave that on the 27th April.