“6.1 I can confirm there is significant mould growth in the back addition bedroom and kitchen, noticeable mould growth in the living room and some minor mould growth in the bathroom and main bedroom. 6.2 The location and the distribution of the mould growth and the absence of any significant dampness or plaster deterioration indicates the cause of the mould growth is surface condensation and not disrepair related penetrating dampness. High humidities were recorded at the time of my inspection and condensation was also recorded as occurring on the back addition bedroom left external wall, these phenomena will be more severe during colder weather. BS 5250 advises that where the relative humidity in a room stays at 70% for a long period of time then the relative humidity on external wall surfaces will be high enough to support the growth of mould. If the dew point is reached (100% relative humidity) then condensation will occur and this can present as visible sweating and water droplets on a cold surfaces, this is most commonly seen when warm moist air comes into contact with a cold window pane and condenses on the surface but it can also occur on cold parts of walls, floors and ceilings. 6.3 The occurrence of condensation and the associated mould growth is dependent upon a number of factors and the most important of these are the amount of moisture generated within the dwelling, the provision for ventilation and the use made of it, the thermal properties of the structure and the provision for space heating and the use made of it. An imbalance in these factors can lead to condensation and mould growth and with respect to this dwelling I advise causal factors include; i) inadequate insulation to the back addition bedroom left wall which is not dry-lined so it will be a colder wall, the dry-lined walls are not significantly mould affected. ii) some areas of missing or disturbed loft insulation, the ceiling surfaces under these areas will be colder which increases the condensation risk. iii) inadequate ventilation, in particular the bathroom extractor fan is defective and there is window disrepair which means the windows will be difficult to open and close and ventilation is likely to be reduced.”
“7.1 There is a well documented association between the dampness and mould growth and respiratory ill-health and therefore I considered this dwelling to be prejudicial to health. If a dwelling is not free from dampness prejudicial to the health of the occupants then it may also be considered unfit for human habitation. 8.2 There is a well-documented association between dampness, mould growth and the proliferation of house dust mites and respiratory illness. Therefore I am satisfied the condition of the dwelling was prejudicial to health and a Statutory Nuisance as defined bySection 79 (1)(a) of the Environmental Protection Act 1990 . 8.3 Having regard to theHomes (Fitness for Human Habitation) Act 2018 I consider that this dwelling was unfit for human habitation because it is not free from dampness prejudicial to the health of the occupants.”
“the rear and right external walls have been dry lined, the left external wall has not been dry lined and the surface temperature was colder to the touch.”
“I am unable to advise if the rear right walls were dry lined with thermal plasterboard but they are warmer. See photographs 30, 33-35.”
“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.” (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
“36. We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith . (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury.”
“We have heard a no case to answer submission by Mr Uddin, for D2 & D3, relies upon 1. Question of ownership, 2, both limbs of Galbraith Test. We also took into account submissions made by the prosecution. In our deliberation we reminded ourselves of the Galbraith test and the requirement of S-82 of EPA 1990. Whilst we considered there was some elements under Limb 1 of Galbraith, when we then looked at limb 2 of the test, having reviewed both the oral and written evidence provided by the prosecution expert witness and Mr Ferko we find that the evidence was insufficient. We believe that no reasonable tribunal could convict D2 and D3 upon the evidence and we therefore find no case to answer, therefore the case against Kumars is not proved, dismissed. We did not consider ownership point. It was not for that reason. evidential issue. We were advised that if one element of complaint is present, still there is a case to answer.”
“The defence of behalf of the 2nd Respondent has asked us to consider No Case to Answer based on Galbraith test which we reminded ourselves on it. As well as S82 of EPA 1990. The prosecution addressed the court at a great length, outlining why they believe there is a case to answer stating in particular that tenants cannot be held responsible for statutory nuisance just by undertaking normal living at an address. We heard evidence from Mr Ferko directly, he confirmed that he never reported broken bathroom extractor fan, or the broken handle on the bathroom window or the other window that did not open. From the outset of his tenancy which started on June 2019. We have also heard from the Prosecution expert Mr Lawrence, had benefit of reading his report and also considered his oral evidence, we are aware that burden lies with the prosecution to prove their case to the criminal standard which is Beyond Reasonable Doubt, Mr Lawrence gave evidence about relationship between moisture and mould. And whilst he made references to the bathroom fan that did not work, indicated that bedroom wall was not dry-lined, and windows were not been able to open or close easily, Mr Lawrence also confirmed that there is no significant structural disrepair and all the mould caused by the condensation. He said that the damp on the ceiling did not contribute to the condensation. We believe that his report did not provide conclusive evidence regarding damp and mould and whether what has been referred as a structural defect was only factors contributing to the mould or there were significant factors attributable to the damp and mould in the flat. Whist we accept there is some evidence, under the 2nd limb of Galbraith we do not believe the evidence as presented is sufficient that no reasonable tribunal could convict the 2nd Respondent, as a result we find no case to answer, case against the 2nd Respondent not been proved, case is dismissed. We did not consider the issue of ownership.”
“recorded in writing and notified the parties for the first time (save to the extent these matters were addressed in our.. (original)... judgments) that we found the following facts: “a) That the expert was not conclusive in his findings and simply re-iterated the issue about condensation but made no causal link to suggest that any of the issues with the property (fan/windows/insulation of a single exterior wall) were responsible for the mould. b) The Applicant never reported about the extractor fan in the bathroom being not working. The bathroom window’s handle was broken and not easy to open or close. c) The Applicant was not consistent to his written statement and evidence in court. Could not remember anything specifically and lacked credibility. The evidence provided by the Applicant was inconsistent and doubtful. d) The Applicant’s case/evidence was not conclusive to indicate that any of the Respondents were liable for the statutory nuisance. While we accepted that there was an existence of a statutory nuisance in the property, we cannot be sure that the Applicant did not contribute towards causing such nuisance while he accepted that he never bothered although he was aware that the extractor fan never worked. e) The Applicant’s written statement was NOT admitted in court as in evidence in chief, cause his statement was disputed by the respondents and not admitted as section 9 or section 10 admission (CJA 1967) for the trial. Court considered the Applicant’s case based on his evidence given in court on the day of trial but also noted his statements where referred in the trial bundle. The bundle was NOT an agreed trial bundle for criminal proceeding.” “a) That the expert was not conclusive in his findings and simply re-iterated the issue about condensation but made no causal link to suggest that any of the issues with the property (fan/windows/insulation of a single exterior wall) were responsible for the mould. b) The Applicant never reported about the extractor fan in the bathroom being not working. The bathroom window’s handle was broken and not easy to open or close. c) The Applicant was not consistent to his written statement and evidence in court. Could not remember anything specifically and lacked credibility. The evidence provided by the Applicant was inconsistent and doubtful. d) The Applicant’s case/evidence was not conclusive to indicate that any of the Respondents were liable for the statutory nuisance. While we accepted that there was an existence of a statutory nuisance in the property, we cannot be sure that the Applicant did not contribute towards causing such nuisance while he accepted that he never bothered although he was aware that the extractor fan never worked. e) The Applicant’s written statement was NOT admitted in court as in evidence in chief, cause his statement was disputed by the respondents and not admitted as section 9 or section 10 admission (CJA 1967) for the trial. Court considered the Applicant’s case based on his evidence given in court on the day of trial but also noted his statements where referred in the trial bundle. The bundle was NOT an agreed trial bundle for criminal proceeding.”
“recorded in writing and notified the parties for the first time, save to the extent these matters were already addressed in our judgments that we were of the opinion: a) In respect of the 3rd and 4th Respondents: That there was not a case to answer Having considered the oral and written evidence provided by the Applicant’s expert witness and the Applicant, we were of the opinion, that no properly directed tribunal could convict the 2nd and 3rd Respondents and so we found there was no case to answer and we dismissed the case. We did not consider the ownership point. Our decision was based on lack of sufficient evidence. Whilst we did not give lengthy reasons the factors which we took into account in reaching our decision were- I. The Applicant was unable to recollect any dates about when he had made a formal complaint, prior to commencing these proceedings. He was unable to provide any evidence of phone calls he may have made or copies of emails he may have sent regarding complaints about the damp/mould. We found that undermined the Applicant’s case against the Respondents. II. The Applicant responded to almost every question with "I don't know" or "I can't remember". The Applicant had lived at the address for a considerable time and elected to renew his tenancy but did not make any complaints about the damp/mould until recently prior to the commencement of the proceedings. We found that as a witness he lacked credibility and it was not clear that the Respondents were liable for the condensation rather than it being caused by his own acts. III. The expert had failed to establish the causal link between the issues with the property and condensation/the presence of mould. IV. The expert confirmed that there was no significant structural disrepair and that all the mould and damp cause by condensation. Whilst we did not say so in our reasons initially but added when explanation was requested on behalf of the Applicant. b) In respect of the 2nd Respondent: Again, we found there was no case to answer as we were of the opinion, that no properly directed tribunal could convict the 2nd Respondent. The Applicant confirmed that he did not report that the extractor fan in the bathroom was broken or that the other windows did not open, even though his tenancy had commenced in June 2019. Mr Lawrence gave evidence about the relationship between moisture and mould. Whilst he made reference to the bathroom fan, the bedroom wall not being not dry lined, and windows that were not been able to be opened or closed easily, he also confirmed that there was no significant structural disrepair, and all the mould was caused by the condensation. He said that the damp on the ceiling did not contribute to the condensation. We found that his report did not provide conclusive evidence regarding damp and mould. It was not conclusive as to whether what has been referred to as a structural defect was the only factor or main factor in contributing to the mould or whether there were other significant factors attributable to the damp and mould in the flat. In conclusion, our judgement that was read out in court, ought to have included the fact that we found the Applicant’s evidence both unreliable and insufficient in detail as the bench had much discussion about his evidence when we retired. However, whilst we found the Applicant’s evidence to be flawed and unreliable, our main concern was that the evidence produced by the expert witness Mr Lawrence was neither definitive or compelling in convincing us that the respondents were responsible for the mould/condensation that existed as a result of issues for which the respondents as landlords should be duly and properly held accountable for.” a) In respect of the 3rd and 4th Respondents: That there was not a case to answer Having considered the oral and written evidence provided by the Applicant’s expert witness and the Applicant, we were of the opinion, that no properly directed tribunal could convict the 2nd and 3rd Respondents and so we found there was no case to answer and we dismissed the case. We did not consider the ownership point. Our decision was based on lack of sufficient evidence. Whilst we did not give lengthy reasons the factors which we took into account in reaching our decision were- I. The Applicant was unable to recollect any dates about when he had made a formal complaint, prior to commencing these proceedings. He was unable to provide any evidence of phone calls he may have made or copies of emails he may have sent regarding complaints about the damp/mould. We found that undermined the Applicant’s case against the Respondents. II. The Applicant responded to almost every question with "I don't know" or "I can't remember". The Applicant had lived at the address for a considerable time and elected to renew his tenancy but did not make any complaints about the damp/mould until recently prior to the commencement of the proceedings. We found that as a witness he lacked credibility and it was not clear that the Respondents were liable for the condensation rather than it being caused by his own acts. III. The expert had failed to establish the causal link between the issues with the property and condensation/the presence of mould. IV. The expert confirmed that there was no significant structural disrepair and that all the mould and damp cause by condensation. Whilst we did not say so in our reasons initially but added when explanation was requested on behalf of the Applicant. b) In respect of the 2nd Respondent: Again, we found there was no case to answer as we were of the opinion, that no properly directed tribunal could convict the 2nd Respondent. The Applicant confirmed that he did not report that the extractor fan in the bathroom was broken or that the other windows did not open, even though his tenancy had commenced in June 2019. Mr Lawrence gave evidence about the relationship between moisture and mould. Whilst he made reference to the bathroom fan, the bedroom wall not being not dry lined, and windows that were not been able to be opened or closed easily, he also confirmed that there was no significant structural disrepair, and all the mould was caused by the condensation. He said that the damp on the ceiling did not contribute to the condensation. We found that his report did not provide conclusive evidence regarding damp and mould. It was not conclusive as to whether what has been referred to as a structural defect was the only factor or main factor in contributing to the mould or whether there were other significant factors attributable to the damp and mould in the flat. In conclusion, our judgement that was read out in court, ought to have included the fact that we found the Applicant’s evidence both unreliable and insufficient in detail as the bench had much discussion about his evidence when we retired. However, whilst we found the Applicant’s evidence to be flawed and unreliable, our main concern was that the evidence produced by the expert witness Mr Lawrence was neither definitive or compelling in convincing us that the respondents were responsible for the mould/condensation that existed as a result of issues for which the respondents as landlords should be duly and properly held accountable for.”
“In my judgment that point had not been reached in this case. In making that statement I also have in mind the fact that at the time of the Essex Justices case it was not usual for magistrates to give reasons at all and, therefore, the announcement of the decision one way or the other was laconic in the extreme. Now that the giving of reasons is common, the process of adjudication is extended. Mr Lofthouse suggests that there are also strong policy reasons for this court to adopt the approach taken in the Essex Justices case, the policy being one of discouragement of attempts at second bites at the cherry. However, there are also strong policy reasons for taking a broader view. Where, as here, magistrates make a mistake and both parties agree, and the magistrates agree that they have made such a mistake, policy and common sense favour its immediate rectification without the cost and delay of an appeal by case stated.”
“10. A similar point arose in the case of Pullum v Crown Prosecution Service [2000] COD 206 in which the issue was whether or not reasons given by the Crown Court were adequate. In dismissing the appeal, the Recorder had simply said, "The appeal is dismissed. We find there was no assault." In the case stated, however, he elaborated on the court's reasons and the issue was whether the Divisional Court should take those factors into account. 11. The Divisional Court, consisting of Lord Bingham CJ and Kay J, stated that: "Had the court announced its decision in approximately the terms of the case stated the appellant would have no possible grounds for complaint. As it was, and with some sympathy for the Recorder who had no doubt given judgment in terms which must have been followed in very many cases, the court concluded that the reasons given fell short of the minimum required." (Page 207) I agree with Mr Lee that the decision in that case shows that, in order to determine whether adequate reasons have been given, it is necessary to consider the allegation that inadequate reasons were given in the terms of the words that were actually used when the decision was given rather than on the basis of reasons given later. That view is also supported by a comment in Archbold, paragraph 2-202 on page 209, where it is said: "Where no reasons were given by a judge when dismissing an appeal, a note of the proceedings subsequently provided by him which was unsupported by affidavit, not signed by the justices sitting on the appeal, was of no real weight. Reasons should be given contemporaneously with the decision so that the losing party could be sure that there was no ex post facto rationalisation." The authority given for that proposition is at R v Snaresbrook Crown Court ex p Input Management 163 JP 533 DC. Mr Lee has been unable to find that case at that reference but the clear position in this case was that there were matters which, in the form of the admission by the complainant of her previous dishonest statements, not only merited but also actually required the Recorder to explain why they had not been accepted at the time.”
“...where more than one person is responsible for a statutory nuisance, subsections (1) to (4) above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance”
“Section 82 is intended to provide a simple procedure for a private citizen to obtain redress when he or she suffers a statutory nuisance of any one of the various kinds itemised in section 79(1), which may relate to the state of the premises or the emission of smoke or the emission of fumes or gases, or dust, steam, smell or other effluvia arising on premises, or the accumulation or deposit, or the keeping of an animal, or noise, or anything else declared by statute to be a statutory nuisance. It would frustrate the clear intention of Parliament if the procedure provided by section 82 were to become bogged down in unnecessary technicality or undue literalism. It is important that the system should be operable by people who may be neither very sophisticated nor very articulate, and who may not in some cases, unlike this appellant, have the benefit of specialised and high quality advice. Against that background one must interpret section 82(6). That requires the aggrieved person to give written notice of appropriate length of that person's intention to bring proceedings in respect of a nuisance. So much is clear from the subsection. The subsection also requires the aggrieved person in his notice to specify the matter complained of. The purpose of giving such notice is to enable the recipient of the notice to make any necessary inspection and, if so advised, take practical and effective steps to cure or eliminate the subject matter of the complaint. From the occupant's point of view the object of the exercise is to obtain a practical remedy: that is, the putting right of whatever he complains of. It seems to me plain that section 82(6) does not require, even in the case of a statutory nuisance alleged to fall within section 79(1)(a), that the aggrieved person should serve an itemised schedule or a specification or a specification of works or any diagnosis of the cause of any defect complained of.”