Improvement notices

May 22nd, 2017

Wood v Kingston Upon Hull City Council (2017) EWCA Civ 364 concerns an Improvement Notice served by a local housing authority under the Housing Act 2004 (“the 2004 Act”). The appeal to the Court of Appeal, by the authority, arose in the following way.

Mr Wood is the freehold owner of a first floor flat (Flat 4) at 141 Princes Avenue in Hull. Ms Peacock is the freehold owner of the ground floor flat immediately below. The vertical boundary between the two flats is at the mid-point of the joists between the ceiling of the ground floor flat and the floor of Flat 4. Hull City Council took the view that there was inadequate fire resistance between the two flats, and served notice under Section 12 of the 2004 Act on both Mr Wood and Ms Peacock requiring remedial works to be carried out. The notice stated that the ground floor flat had a section of original lath and plaster ceiling which was in very poor condition with some sections missing. That lack of material separation increased the likelihood of unchecked spread of fire into Flat 4 from the ground floor flat in the event of a fire occurring within the ground floor flat. The notice specified two alternative schemes:

i) Taking down a section of the original ceiling in the ground floor flat and constructing a new plasterboard ceiling; or

ii) Installing a suitably certificated fire resistant product between the floor joists of the existing timber floor of Flat 4 in a corresponding area.

Mr Wood appealed against the notice first to the FTT and then to the Upper Tribunal. The Deputy President quashed the improvement notice served on Mr Wood, and as against Ms Peacock he varied it by deleting the reference to the second scheme of works. The overall effect of his decision was that Ms Peacock was required to repair the ceiling of her own flat, and at her own expense. The local authority appealed.

The regulation of housing conditions had been by reference to the concept of fitness for human habitation. The 2004 Act replaced that with a risk based assessment of the effect of any deficiencies in dwellings using objective criteria. The task now is to identify “hazards” which are divided into “category 1 hazards” and “category 2 hazards”. A hazard is defined by Section 2(1).   This definition deals with two things:

i) The risk of harm to human health or safety of an occupier of a dwelling and

ii) The deficiency which gives rise to that risk.

In many cases the risk and the deficiency will be located in the same dwelling. But there may be cases, of which this was one, where the risk that arises in one dwelling (i.e. the risk of injury from fire to an occupier of Flat 4) is caused by a deficiency in another dwelling (i.e. the inadequacies of the ceiling in the ground floor flat).

Where a local authority identifies a category 1 hazard it has duty to act. Where it identifies a category 2 hazard it has a power to do so. The hazard with which the case was concerned is a category 2 hazard.  In the case of a category 2 hazard one of the local authority’s powers is the service of an improvement notice under Section 12.  The contents of an improvement notice are prescribed by Section 13.  The identity of the person on whom an improvement notice is served is dealt with by Schedule 1.

Part 3 of Schedule 1 gives a right of appeal against an improvement notice. There is no restriction on the grounds of appeal.

As a result of Section 12(3), Section 11(3) and (4) apply to improvement notices. They provide:-

“(3) The notice may require remedial action to be taken in relation to the following premises –

(a) …;

(b) if those premises are one or more flats, it may require such action to be taken in relation to the building containing the flat or flats (or any part of the building) or any external common parts;

(c) ….

Paragraphs (b) and (c) are subject to subsection (4).

(4) The notice may not, by virtue of subsection (3)(b) or (c), require any remedial action to be taken in relation to any part of the building or its external common parts that is not included in any residential premises on which the hazard exists, unless the authority are satisfied –

(a) that the deficiency from which the hazard arises is situated there, and

(b) that it is necessary for the action to be so taken in order to protect the health or safety of any actual or potential occupiers of one or more of the flats.”

Lewison LJ, with whom Patten and Underhill LJJ agreed, said:-

“21.    It is common ground that the deficiency which gives rise to the hazard is in the ground floor flat. Thus section 11 (4) (a) is satisfied. The question is whether section 11 (4) (b) is also satisfied. At the heart of this issue is what is meant by “necessary” in section 11 (4) (b). In a very different context Lord Griffiths remarked in In Re An Inquiry Under The Company Securities (Insider Dealing) Act 1985 [1988] AC 660, 704:

“”Necessary” is a word in common usage in everyday speech with which everyone is familiar. Like all words, it will take colour from its context; for example, most people would regard it as “necessary” to do everything possible to prevent a catastrophe but would not regard it as “necessary” to do everything possible to prevent some minor inconvenience. Furthermore, whether a particular measure is necessary, … involves the exercise of a judgment upon the established facts. … I doubt if it is possible to go further than to say that “necessary” has a meaning that lies somewhere between “indispensable” on the one hand, and “useful” or “expedient” on the other, and to leave it to the judge to decide towards which end of the scale of meaning he will place it on the facts of any particular case. The nearest paraphrase I can suggest is “really needed.””

“22.    Thus at one extreme the word may mean that there is no possible alternative. That seems to me to be an unlikely meaning to attribute to the word in this context, because with enough technical ingenuity and money there will almost always be a possible alternative. For example, the fire resistance between the two flats could have been improved by requiring Mr Wood to lay a new floor structure incorporating fire retardant material on top of the existing floor in Flat 4. However, this is the meaning that the Deputy President appears to have adopted, because he distinguished between a case in which the “only” way to remedy the hazard and a case where there was “more than one way”. There is also considerable force in Mr Wood’s point that in order to eliminate a hazard it will often be necessary to eliminate the cause of the hazard (i.e. the deficiency). To give another example, discussed in the course of argument, if the problem is caused by a boiler emitting noxious gases into a particular dwelling it might well be possible to seal or ventilate the dwelling, even though the obvious remedy would be to modify the boiler. In my judgment the concept of “necessity” in the context of a scheme for improving housing conditions in the interests of health and safety includes considerations of cost and disruption; and, in addition, includes the need to eradicate the cause of the problem rather than merely its symptoms. In looking at the question of possibility in the abstract without regard to cost, disruption and responsibility for the deficiency, I consider that the Deputy President adopted too strict a test.

  1. One further aspect of the word “necessary” in section 11 (4) (b) is that … it limits the scope of the work that may be carried out to the minimum scheme required to eliminate the hazard.”

“25.    In my judgment … the Deputy President’s overall conclusion that it was lawful for the Council to serve an improvement notice on Ms Peacock requiring her to carry out works to the ground floor flat was correct, although my reasoning has followed a different path.

  1. The Deputy President went on to hold that, by contrast, it was not lawful for the Council to serve notice requiring Mr Wood to carry out works to the ground floor flat because paragraph 3(2) of Schedule 1 required that an improvement notice be served on a person who is an owner of the flat, and who in the authority’s opinion ought to take the action specified in the notice. It followed that in relation to the work required to be carried out wholly within the ground floor flat, the only permissible recipient of the notice was Ms Peacock. Mr Wood was not an owner of the ground floor flat, and a notice requiring work entirely within the ground floor flat could not be served on him. For that reason, to the extent that the improvement notice required Mr Wood to replace the ceiling of the ground floor flat, it was unlawful. The Council accepts that he was correct so to hold.

 

  1. The Deputy President went on to consider the second alternative scheme (namely the insertion of fire retardant material between the joists). …

 

  1. That led to the question whether it was possible for an improvement notice to specify alternative means of remedying the hazard. The Deputy President concluded that in principle it was, since there was nothing in the Act to preclude it. Mr Wood submitted that this conclusion was wrong. As he pointed out section 13 requires the improvement notice to “specify” the premises in relation to which remedial action is to be taken in respect of the hazard and the nature of that remedial action. The argument is that to give the recipient of an improvement notice a choice of remedial schemes does not “specify” the nature of the work. In a case where the works in question are to be carried out in a single dwelling by a single owner I consider that this is too narrow a view. If a single owner receives a notice requiring one of two alternatives, it is up to him to decide which one to adopt. If he adopts either one he will have complied with the notice. In all likelihood he will choose the cheaper and least disruptive option, but that is a matter for him. It is also the case that in some instances a number of persons collectively may be regarded as the owner or person having control of the specified premises. …

 

  1. However, as the Deputy President correctly said at [87]:

 

“… it is highly undesirable to require two persons to remedy a hazard by taking either remedial action A or remedial action B, unless they are joint owners of the same interest in the premises on which the action is to be taken. A notice should not require a recipient to carry out work on premises in which they have no interest.”

 

  1. He added at [89]:

 

“Even if it is permissible to serve a notice requiring A and B to carry out alternative courses of action, I do not think it would be desirable for an authority to do so and, as a matter of discretion at least, it ought to be avoided. In particular I consider that it is essential that an improvement notice should not require alternative forms of remedial action to be taken where one of the alternatives is to carry out work in premises of which one of the recipients of the notice is the sole owner, and the other alternative is to carry out work either in the premises of the other owner or in both of the premises. As a matter of practicality the better course in any case is likely to be to serve a notice specifying a single course of remedial action to be carried out by a single owner acting alone. If it is not possible to do so, because a single course of remedial action is required to be carried out in premises belonging to different owners, the proposal of alternative courses of action risks making the necessary cooperation more difficult to achieve and, for that reason, should be avoided.”

 

  1. I agree. There is one further point to be made. If, as in this case, the housing authority concludes that it is necessary to require remedial works to be carried out in a place where the deficiency (rather than the risk) exists, it is difficult to see how, consistently with its conclusion about necessity, it can simultaneously require works to be carried out elsewhere. Whatever meaning is given to the word “necessary”, if the facts dictate that work is carried out in the place where the deficiency (rather than the risk) exists it appears inconsistent to require different works to be carried out elsewhere.”

 

“35.    It is necessary … to say something about the scope of an appeal. Although one of the powers given to the tribunal under paragraph 15 is a power to quash a notice, I do not consider that the word “quash” is intended to import a public law test. First, if a public law test were appropriate the proper remedy would be by way of judicial review, in which case the choice of the specialist chamber of the FTT as the appellate tribunal would itself be hard to explain. Second, the appeal is by way of “re-hearing” which is not apt to describe a process akin to judicial review. Third, an appeal to the tribunal is (or at least includes) an appeal on the merits of the works required by the notice. On such an appeal the tribunal has the power to vary the notice. That power is in itself inconsistent with the application of a public law test. If a notice is invalid because of irrationality there is no valid notice capable of being varied. The housing authority would have to start again. In my judgment it is not necessary for the tribunal to be satisfied that the inclusion of a particular scheme of works was irrational (and therefore unlawful) before it can exercise the power to vary. The grounds of appeal against an improvement notice are unlimited; and a dissatisfied recipient of such a notice is entitled to appeal on the ground, say, that there exists a cheaper and equally effective alternative to the works required by the improvement notice. …

  1. If the tribunal is satisfied that the best way forward is to adopt a scheme of remedial works other than that required by the notice (whether for reasons of cost, efficacy, disruption or any other reason) it may, in my judgment, vary the notice to give effect to its decision. Likewise if it is satisfied that a remedial scheme required in one notice is a better option than one required in another notice, it is entitled to quash the latter and confirm the former. That does not mean that either notice was unlawful: it merely means that having heard the evidence a tribunal is satisfied that there is a better way forward.
  2. Accordingly, although the Deputy President’s reasoning process may have been flawed, his overall conclusion was correct. I would dismiss the appeal.”

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