Prevention of Rats and Mice Notice
Under the Prevention of Damage by Pests Act 1949, if on any land it appears to the local authority that steps should be taken for the destruction of rats or mice or otherwise for keeping the land free from rats and mice, they may serve on the owner or occupier a notice requiring him to take, within such reasonable period as may be specified, such reasonable steps for the purpose aforesaid as may be so specified.
What work can the local authority require?
Section 4 provides that the works usually required will be the removal of waste, but any such notice may, in particular, require—
(a) the application to the land of any form of treatment specified in the notice;
(b) the carrying out on the land of any structural repairs or other works so specified, and may prescribe the times at which any treatment required by the notice is to be carried out.
[s.4(2) Prevention of Damage by Pests Act 1949]
How long must the local authority give to comply with the works?
A "reasonable period" must be specified in the notice, allowing time to comply with the necessary works.
Where must the notice be served?
Section 10 of the Prevention of Damage by Pests Act 1949 provides that Section 285 Public Health Act 1936 applies to the service of notices on owners or occupiers and which reads:
285 Service of notices
Any notice, order, consent, demand or other document which is required or authorised by or under this Act to be given to or served on any person may, in any case for which no other provision is made by this Act, be given or served either—
(a) by delivering it to that person; or
(b) in the case of a coroner, or a medical officer of health, by leaving it or sending it in a prepaid letter addressed to him, at either his residence or his office and, in the case of any other officer of a council, by leaving it or sending it in a prepaid letter addressed to him, at his office; or
(c) in the case of any other person, by leaving it or sending it in a prepaid letter addressed to him, at his usual or last known residence; or
(d) in the case of an incorporated company or body, by delivering it to their secretary or clerk at their registered or principal office, or by sending it in a prepaid letter addressed to him at that office; or
(e) in the case of a document to be given to or served on a person as being the owner of any premises by virtue of the fact that he receives the rackrent thereof as agent for another, or would so receive it if the premises were let at a rackrent, by leaving it, or sending it in a prepaid letter addressed to him, at his place of business; or
(f) in the case of a document to be given to or served on the owner or the occupier of any premises, if it is not practicable after reasonable inquiry to ascertain the name and address of the person to or on whom it should be given or served, or if the premises are unoccupied, by addressing it to the person concerned by the description of “owner” or “occupier” of the premises (naming them) to which it relates, and delivering it to some person on the premises, or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.
Can I appeal the notice?
There is a statutory right of appeal, but only if the works required to be completed under the notice are "structural works", and you must lodge an appeal within 21 days [s.300(2) Public Health Act 1936].
It is respectfully submitted that if the local authority gave less than 21 days for the execution of works, that would not be a "reasonable period" because it would be less than the statutory right of appeal (this is untested to my knowledge but a good argument if nothing else).
If the works requested are non-structural (for example, the removal of rubbish), it would seem there is no right of appeal. Whether this is incompatible with Article 6, Human Rights Act 1998 remains to be seen in particular because a failure to comply with the notice is both a civil and criminal offence (on the prosecution):
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
What action can be taken if there is no appeal or I don't appeal?
If no appeal is available or you fail to appeal within the 21 days, the local authority may themselves take the steps and recover from you any reasonably incurred expenses in doing so [s.5(1) Prevention of Damage by Pests Act 1949].
In addition, a person who fails to take any steps as required by the notice shall be guilty of an offence and liable on summary conviction to a fine not exceeding in the case of a first offence level 3 on the standard scale and in the case of a second or any subsequent offence level 3 on the standard scale [s.5(2)].
Any expenses are recoverable as a simple contract debt [s.7(1)].
Where no appeal is available (due to not being structural works), any hearing seeking to recover expenses may provide an opportunity to defend the notice. However, as there are no grounds of appeal available, it seems the only two defences might be:
(a) The fact that no appeal is available may be incompatible with Article 6 or
(b) The service of the notice was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it [known as Wednesbury unreasonableness].
In proceedings for the recovery of any expenses incurred by the local authority, it shall not be open to you to raise by way of defence any question which you could have raised on an appeal [s.7(3)].
Where a local authority has incurred expenses for the repayment of which the owner of the premises is liable, those expenses, together with interest from the date of service of a demand for the expenses, may be recovered from the person who is the owner of the premises at the date when the works are completed, or, if he has ceased to be the owner of the premises before the date when demand for the expenses is served, either from him or from the person who is the owner at the date when the demand is served, and, as from the date of the completion of the works, the expenses and interest accrued shall, until recovered, be a charge on the premises and all estates and interests therein [s.291(1) Public Health Act 1936].
In certain circumstances, the tenant may be ordered to pay any amounts due to the local authority by deducting from the rent and thereby ordered to pay the local authority the rent instead of paying the landlord [s.291(2)].
The local authority may also recover any expenses incurred by a managing agent. In this case, it is limited to the amount of rent in hand the agent holds (so the agent can never be personally liable to pay the debt) [s.294 Public Health Act 1936].
Waste disposal offences
When defending or arguing such notices, it is worthy of note that tenants are under a duty to dispose of waste properly, not just under the terms of any standard tenancy agreement.
Under regulation 10, The Management of Houses in Multiple Occupation (England) Regulations 2006, it is a duty of every occupier in an HMO to:
store and dispose of litter in accordance with the arrangements made by the manager ...
Under section 45 of the Environmental Protection Act 1990, every local authority must collect particular household waste.
Under section 46, waste must be placed by occupiers into specific receptacles. A person who fails, without reasonable excuse, to comply with those requirements shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
If structural works are sought, what is the appeal procedure?
Subsections (3) to (5) of section 290 and sections 300 to 302 of the Public Health Act 1936 provide for an appeal to be at a summary court (Magistrates' Court) and apply to an appeal for a notice served under section 4 Prevention of Damage by Pests Act 1949 [s.4(5) PDPA 1949] where the works being requested are "structural works".
Section 300(1) of the Public Health Act 1936 provides that the procedure shall be by complaint for an order, and the Summary Jurisdiction Acts shall apply to the proceedings.
An appeal must, therefore, be made as a complaint to the Magistrates' Court under sections 51 and 52 of the Magistrates' Court Act 1980, and the making of the complaint shall be deemed to be the bringing of the appeal [s.300(2) Public Health Act 1936].
What is a complaint?
When the police allege a crime that requires a summons to be issued for the attendance of the accused, they will "lay an information". This document sets out certain information, including details of any alleged offence.
A complaint is very similar and is "laid" in the same way. However, instead of alleging a criminal offence, it is a complaint. It can be used, for example, in certain highway cases where a local authority is failing to carry out necessary works.
It is also used in certain appeal cases like the one discussed here. The person making the complaint is known as the "complainant", and the appeal will be against the "defendant" (the local authority).
How do I lay a complaint?
There is no statutory form that is required. A sample form is available at the bottom of this page, and it must be taken to the local Magistrates' Court and signed by the clerk or a Justice of the Peace (Magistrate).
You will be required to swear on oath or affirm that the contents of the complaint are accurate.
The local authority will then be summonsed to appear, and the appeal will occur in the Magistrates' Court.
You should attend any trial held, and you will be notified of all trial dates. It would seem that once the complaint has been laid (by the complainant), the complainant becomes the "appellant" (see s.290(5) Public Health Act 1936, for example).
What are the grounds for appeal?
There are specific grounds of appeal that must be used. Simply disagreeing with the notice is not enough.
The grounds are as laid out in section 290(3) of the Public Health Act 1936 and are discussed individually below.
(a) that the notice or requirement is not justified by the terms of the section under which it purports to have been given or made
For this case (prevention of rats and mice), this ground would be used if the works required in the notice would not affect the intention of section 4 (rats and mice). For example, an appeal under this ground would be suitable if the notice required painting the property's exterior.
(b) that there has been some informality, defect or error in, or in connection with, the notice;
This ground is as it sounds, although it should be noted there is no prescribed form, so the use of this ground may be pretty limited. However, in case I had, the local authority sought for the works to be done within ten days of the notice's service.
The notice also stated that if I failed to take the steps required by the notice "within the time specified", the local authority may themselves take those steps and recover from the landlord any expenses reasonably incurred.
It is submitted this was a material defect because the notice threatened the recovery of expenses at a time before the statutory right of appeal had expired. However, the court shall dismiss the appeal if it is satisfied that the informality, defect, or error was not a material one [s.290(4) Public Health Act 1936].
(c) that the authority has refused unreasonably to approve the execution of alternative works, or that the works required by the notice to be executed are otherwise unreasonable in character or extent or are unnecessary;
This ground would be used if you proposed other works that would have the same effect of removing the harbouring of rats and mice, but the local authority refuses those proposed works.
(d) that the time within which the works are to be executed is not reasonably sufficient for the purpose;
It is submitted at any time given less than 21 days (the statutory right of appeal) and will not be adequate for the reasons given above. Anything extra will depend on the circumstances and urgency of the problem.
(e) that the notice might lawfully have been served on the occupier of the premises in question instead of on the owner, or the owner instead of on the occupier, and that it would have been equitable for it to have been so served;
This will be one of the most common grounds for a landlord. Essentially, any waste will typically be the tenant's waste. So it is submitted the occupier should be the one to carry out necessary works, assuming it is the occupier that has caused the problem.
In addition, section 290(5) states:
In exercising its powers under this subsection, the court shall have regard—
(a) as between an owner and an occupier, to the terms and conditions, whether contractual or statutory, of the tenancy and to the nature of the works required; and
(b) in any case, to the degree of benefit to be derived by the different persons concerned.
(f) where the work is for the common benefit of the premises in question and other premises, that some other person, being the owner or occupier of premises to be benefited, ought to contribute towards the expenses of executing any required works.
This ground is similar to (e) above, and essentially, the landlord will argue that the occupier will benefit more because they didn't have to incur expenses in disposing of the waste. After all, presumably, the occupiers dumped the trash at the property. It should be mentioned that if the works are reasonable, the occupiers should contribute towards the expenses, which is 100% of the costs.
Copies of the complaint (appeal)
Where the grounds (e) or (f) above are relied upon (where either somebody else should have been served the notice or somebody else should contribute towards the expenses), the appellant must serve a copy of the notice of appeal (complaint) on each other person referred. In the case of any appeal, you may serve a copy of the notice of appeal on any other person having an estate or interest in the premises in question [s.290(5) Public Health Act 1936].
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