What the order may require. 18 & 19 Vict. C. 121, S. 13. Ib. Sch. Entry of local authority on premises. Ib. s. 14. upon this and the liberty of the Tower of London. Further § 2. ORDER FOR ABATEMENT of Nuisances. By their order, the justices may require the person on whom it is made To provide sufficient privy accommodation, means of drainage or ventilation, or to make safe and habitable; Or to pave, cleanse, whitewash, disinfect, or purify (but see post, p. 529) the premises which are a nuisance or injurious to health, or such part thereof as the justices may direct in their order; Or to drain, empty, cleanse, fill up, amend or remove the injurious pool, ditch, gutter, watercourse, privy, urinal, cesspool, drain, or ashpit, which is a nuisance or injurious to health; Or to provide a substitute for that complained of; Or to carry away the accumulation or deposit which is a nuisance or injurious to health; Or to provide for the cleanly and wholesome keeping of the animal kept so as to be a nuisance or injurious to health; Or if it be proved to the justices to be impossible so to provide, then to remove the animal, or any or all of these things (according to the nature of the nuisance); Or to do such other work or acts as are necessary to abate the nuisance complained of, in such manner, and within such time, as in such order shall be specified; And if the justices are of opinion that such or the like nuisance is likely to recur, the justices may further prohibit the recurrence of it, and direct the works necessary to prevent such recurrence, as the case may in the judgment of such justices require. The limitation in 11 & 12 Vict. c. 43, s. 11, does not apply to such a case as a continuing nuisance. (1) The order is to be made at the time the complaint is heard, and the local authority is empowered in case of default, under the powers of entry given by the 11th section of the Act, to enter the premises to which the order relates, and remove or abate the nuisance condemned or prohibited; but they have a discretion in the matter, as the Act only says that they may enter the premises. A rule for a mandamus to a Local Board of Health to enforce an order under this section for the abatement of a nuisance was therefore refused. (2) Where, however, a Local Board have ordered works to be done to abate a nuisance, and the person upon whom the order (1) Higgin, app., Northwich, resp., 34 J. P. 806. (2) Ex parte Bassett, 7 E. & B. 280; 26 L. J. M. C. 64; 3 Jur. (N. S.) 136. is made does works, but not to the extent or in the manner Entry of local ordered, the justices, on an application of the Board to enforce authority on the order, have no power to dismiss the complaint if they are premises. of opinion that all that was really necessary to be done has been done, but are bound to enforce execution of the order of the Board. (1) Where an order to abate a nuisance by removing offensive privies, etc., was directed to "the owner or to the Nuisances Removal Committee," the owner being directed to remove the same within seven days, and if such order were not complied with, the committee were authorized and required to enter and remove the nuisance complained of, and the seven days elapsed without the owner or the committee having removed the nuisance, it was held that the justices had power to fine the owner, under sect. 14, for disobedience of the order, notwithstanding that it was directed to the committee as well as to him. (2) It may be observed here that long before the first Nuisances Removal Act, it was held by the Court of Exchequer that an entry on the land of another in order to remove a nuisance of filth, by a person injured thereby, is justifiable without previous notice, where the owner of the land is himself the original wrongdoer by placing it there. So possibly also where the nuisance arises from a default in the performance of some obligation on him. But where the nuisance is created by another, and the owner succeeds to the locus in quo, he is entitled to notice before an injured person can enter to remove it. The case of an abatement of a nuisance dangerous to life may however be an exception. (3) order. It will be desirable in all cases at the hearing of the complaint Penalty for to be prepared to point out specifically the particular things neglect of that are to be done, and the manner and time of doing them. 18 & 19 Vict. And it is the more necessary to do so, for there is no appeal c. 121. s. 14. against orders for the abatement of a nuisance, except in so far as they may direct the execution of structural works; moreover, any person not obeying an order for the abatement of a nuisance, if he fail to satisfy the justices that he has used all due diligence to carry out such order, is liable for every such offence to a penalty not exceeding 10s. per day during his default. offender. Penalties imposed by the 14th section of the 18 & 19 Vict. Previous C. 121, for disobeying an order to abate a nuisance under summons to section 13, cannot be enforced without previously summoning the offender under section 20 of the Act. (4) It will be seen hereafter that the power given by the 18 & 19 Mandamus Vict. c. 121, S. 14, to the local authority to enter and execute the to local works necessary to be done to effect the removal of a nuisance authority (1) Hargreaves v. Taylor, 38 L. T. 241; 3 B. & S. 613; 32 L. J. M. C. III. (2) Tomlins v. Great Stanmore, 12 L. T. (N. S.) 118; 29 J. P. 117. (3) Jones v. Williams, 11 M. & W. 176; 12 L. J. Exch. 249. (4) Reg. v. Jenkins, 9 Jur. (N. S.) 570; 32 L. J. M. C. 1; 7 L. T. (N. S.) 272; 3 B. & S. 116. will not lie. Prohibition as to houses unfit for habitation. 18 & 19 Vict. c. 121, s. 13. Appeal. Penalty. nuisance. Ib. s. 14. Justices, on the application of householders, may order the removal of nuisances. 23 & 24 Vict. c. 77, s. 13. under the Act is merely permissive, and that a mandamus will not lie against the local authority to enforce the order of justices on the default of the person upon whom it is made. The section, it will be perceived, provides a specific remedy by imposing a penalty on the person disobeying the order of justices. If the nuisance proved to exist be such as to render a house or building, in the judgment of the justices, unfit for human habitation, they may prohibit the using thereof for that purpose until it is rendered fit for that purpose in the judgment of the justices, and on their being satisfied that it has been rendered fit for such purpose they may determine their previous order by another, declaring such house habitable, from the date of which other order such house may be let or inhabited. With respect to the order of prohibition, it seems to result from collating the words of the section with the Form of Order (Sch. Form E), that the power to prohibit recurrence is general, and not confined to the case of a nuisance removed or discontinued since the notice, but likely to recur. The order of prohibition may be appealed against in manner prescribed by the 40th section of the Act. And any person knowingly or wilfully acting contrary to the order is liable to a penalty not exceeding 20s. per day during such contrary action. The local authority may under the powers of entry given by the Act enter the premises to which the order relates, and remove or abate the nuisance condemned or prohibited, and do whatever may be necessary in execution of the order, and charge the cost to the person on whom the order is made, as provided by sect. 19 of the Act, post. p. 526. The 18 & 19 Vict. c. 121, s. 14, which imposes a penalty on persons on whom an order of justices has been made under the Act for disobedience of the order, and authorizes the local authority to enter on the premises to which the order relates, and abate the nuisance, is merely permissive in the latter respect; and a mandamus will not be granted to compel the local authority to enforce the order on the default of the person upon whom it is made. (1) But since the Act 23 & 24 Vict. c. 77, a private person may obtain an order of justices for the removal of a nuisance on private premises, and enforce the order without the intervention of the local authority. Upon complaint before a justice of the peace by any inhabitant (2) of any parish or place of the existence of any nuisance on any private premises in the same parish or place, such justice shall issue a summons requiring the person by whose act, default, permission, or sufferance the nuisance arises, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises, to appear before (2) See Cocker, app., Cardwell, resp., ante, p. 516. (1) In re Ham, Surrey, 26 L. J. M. C. 64. S. C. Ex parte Bassett, 7 E. & B. 280; 3 Jur. (N. s.) 136. two justices in petty sessions assembled at their usual place of Removal of meeting. The justices shall then proceed to inquire into the nuisances. complaint, and act in relation thereto as in cases where complaint is made by a local authority under sect. 12 of the 18 & 19 Vict. c. 121, and as if the person making the complaint were such local authority. The said justices, if they see fit, may adjourn the hearing or further hearing of the summons for an examination of the premises where the nuisance is alleged to exist, and require the admission or authorize the entry into such premises of any constable or other person or persons, and thereupon the person or persons authorized by the order of the justices may enter and act as the local authority might under a like order made by any justice under sect. II of the Act (ante, p. 508). The costs in the case of every such application shall be in the discretion of the justices, and payment thereof may be ordered and enforced as in other cases of summary adjudication by justices. Any order made by justices under this enactment shall be attended with the like penalties and consequences for disobedience thereof, and subject to the like appeal, as any order made under sect. 12 of the 18 & 19 Vict. c. 121 (ante, p. 515), and the justices making such order may thereby authorize any constable or other person or persons to do all acts for removing or abating the nuisance condemned or prohibited, and for executing such order, in like manner as a local authority obtaining the like order might do under that Act, and charge the costs to the person on whom the order is made, as is provided in the case where a like order is obtained and executed by such local authority. recurrence works. The justices, if they are of opinion that any nuisance is likely Order to recur, may further prohibit the recurrence of it, and direct prohibiting the works necessary to prevent such recurrence as the case may of nuisance. in the judgment of the justices require. They may also, when 18 & 19 Vict. it shall appear to them that the execution of structural works is c. 121, s. 13. required for the abatement of a nuisance, direct such works to Structural be carried out under the direction, or with the consent or ap- Ib. 16. proval, of any public Board, trustees, or Commissioners, having jurisdiction in the place, in respect of such works. A difficulty may in some cases arise in determining what are "structural works" within the meaning of this section. Generally, every work which creates a new structure is a structural work; but certainly the term does not apply to a mere alteration or repair of works already existing. However, it will be for the justices in each case to determine for themselves whether the particular works deemed necessary for the abatement of a nuisance are works within the meaning of the enactment regarding structural works. The legal force of an order for the execution of structural works may be suspended until after the determination of or the ceasing to prosecute an appeal against it. If within seven days from the date of the order the person on whom it is made Appeal against order for execution of work. 18 & 19 Vict. C. 121, s. 16. Ib. s. 40. How recovered. Ib. s. 19. shall have given notice to the local authority of his intention to appeal against it, and shall have entered into recognizances to try the appeal, and shall appeal accordingly, in such an event no liability or penalty shall arise, nor shall any work be done or proceeding taken under the order until after the determination of the appeal, unless it cease to be prosecuted. The appeal will be to the Court of Quarter Sessions held next after the making of the order, but the notice of appeal must be given within seven days from the date of the order; and it will be prudent that the appellant should accompany the notice with a statement in writing of the grounds of appeal, though it does not appear to be absolutely necessary that he should do so. §3. COSTS OF LOCAL AUTHORITY. All reasonable costs and expenses from time to time incurred in making a complaint, or giving notice, or obtaining an order of justices, or in carrying the same into effect shall, under the Act, be deemed to be money paid for the use, and at the request of the person on whom the order is made. Therefore, even though no order for the abatement of the nuisance may have been obtained, the local authority may recover by action in the County Court, or in a higher Court, if necessary, any expenses they may have incurred in proceedings under the Act in regard to the particular nuisance. If the order be made on the local authority, or if no order be made, but the nuisance be proved to have existed when the complaint was made or the notice given, the costs and expenses are to be deemed to be money paid for the use and at the request of the person by whose act or default the nuisance was caused. On the other hand, if the nuisance be caused by the act or default of the owner of the premises, such premises shall be and continue chargeable with the costs and expenses, and also with the amount of any penalties under the Act, till such costs, expenses, and penalties shall be fully discharged; provided, however, that the costs and expenses do not exceed in the whole, one year's rack-rent of the premises. The Nuisances Removal Act, 1855, s. 19, only makes the expenses for carrying out an order of justices for the removal of a nuisance a charge upon the premises in the case of nuisances caused by the default of the owner of the premises. (1) It shall be lawful for the nuisance authority, at their discre tion, to require the payment of any costs or expenses which the owner of any premises may be liable to pay under the Nuisances Removal Acts or the Sanitary Act, 1866, either from the owner or from any person who then or at any time thereafter occupies the premises, and such owner or occupier shall be liable to pay (1) Bird v. Elwes, 18 L. T. (N. s.) 727; 37 L. J. Exch. 91. |