London borough secures dismissal of private prosecution brought by occupier

A London borough has successfully argued that it had no case to answer in a private prosecution brought by an occupier of one of its properties under section 82 of the Environmental Protection Act 1990, it has been reported.

At the trial at Wimbledon magistrates' court, Matt Lewin of Cornerstone Barristers, appearing on behalf of Wandsworth Council, said the prosecutor had presented no evidence whatsoever of the causation of mould and damp affecting the property and nor was there any evidence to show that the local authority was in breach of its repairing obligations under the tenancy agreement.

Therefore the court could not be satisfied beyond reasonable doubt that Wandsworth was the "person responsible" for the statutory nuisance within the meaning of section 79(7) of the Act.

The District Judge upheld that application and dismissed the prosecution without needing to hear any evidence from the council in its defence.

Lewin said: “Anecdotal evidence suggests that many local authorities are currently facing a new wave of private prosecutions brought under section 82. The procedure for bringing such prosecutions is relatively unsophisticated compared to civil claims for disrepair – which are subject to the Housing Disrepair Pre-Action Protocol and the Civil Procedure Rules.

“While the tenant must serve a warning letter before applying for a summons, the 21-day time limit frequently allows insufficient time for the local authority to investigate and carry out works of repair.

“Moreover, there is no costs risk to a tenant who brings such a prosecution as there is no provision for a successful local authority to recover its costs.”