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Council has "no case to answer" on EPA prosecution

Matt Lewin has successfully defended the London Borough of Wandsworth on a private prosecution brought by an occupier of one of its properties under section 82 of the Environmental Protection Act 1990.

At the trial at Wimbledon magistrates' court yesterday, Matt applied to have the prosecution dismissed on the basis that the Council had no case to answer.

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 Council was in breach of its repairing obligations under the tenancy agreement. Therefore the court could not be satisfied beyond reasonable doubt that the Council 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.

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.

If you would like to know more about this case, or need any advice or assistance in defending against an EPA prosecution, please feel free to contact Matt or any of the members of the housing team at Cornerstone Barristers.