Curd (trading as Glenwood Property Investments) v Liverpool City Council

Housing – Improvement notice – Housing Act 2004 – Appellant challenging improvement notice served by respondent local authority – First-tier Tribunal unable to determine whether specified works required and varying improvement notice – Appellant appealing – Whether FTT entitled to substitute investigative work and require compliance with third party recommendations – Whether notice properly requiring replacement of building components not shown to be defective – Appeal allowed The appellant was a chartered surveyor who owned a property at 55 Kenmare Road, Wavertree, Liverpool which was a house in multiple occupation (HMO). The respondent local authority served an improvement notice on the appellant under section 12 of the Housing Act 2004 requiring work to be carried out to seven fire doors, including the replacement of hinges and other door furniture where they did not carry a CE mark. The appellant appealed against the notice. When it considered the appeal, the FTT was not satisfied on the evidence what work, if any, was required to remedy any hazard which might exist. It therefore varied the improvement notice, requiring the appellant to obtain a report from an independent fire risk assessor and follow its recommendations. The appellant appealed raising issues as to: how a decision maker (an authority or a tribunal exercising the same powers on an appeal) should proceed where, because of uncertainty about the quality or specification of a building component, or for other reasons, there was doubt about whether a hazard existed; whether the decision maker was entitled to require the replacement of the component with an alternative of a known specification, thereby removing any risk; alternatively, whether it was entitled to require the property owner to commission tests to establish whether a hazard existed and carry out any remedial work necessary to bring the building up to standard. Held: The appeal was allowed. (1) In response to the appeal, the respondent did not seek to uphold the reasoning of the FTT and conceded that it was not entitled to vary the improvement notice to require the appellant to obtain a report from a third-party assessor to determine whether a hazard existed and to act on the assessor’s findings. A local housing authority’s discretion to serve an improvement notice under section 12 of the 2004 Act arose only if it was “satisfied that a category 2 hazard exists” (section 12(1)(a)). If it was not so satisfied, it could not serve a notice. Moreover, section 13(2) required an improvement notice to specify the nature of the hazard and the remedial action required, neither of which could be done if the authority had not first satisfied itself that a hazard existed. Therefore, the respondent could not have served an improvement notice which required the appellant to take steps to ascertain whether a hazard existed on the premises. On an appeal, the FTT had no greater or different powers from those of the local authority and it might only vary an improvement notice if it was satisfied that a hazard existed. (2) The respondent rightly distinguished between testing to establish whether a hazard existed and testing to determine the extent of a hazard which an authority had already satisfied itself existed, or to demonstrate that remedial work had been completed successfully. If, as a result of its own observations or monitoring, the authority was satisfied that there was a hazard (ie that the installations were deficient in some way, and that the deficiency gave rise to a risk of harm to the health or safety of an occupier), the remedial work which it might specify in an improvement notice could include proper testing to establish the extent of the deficiencies. An improvement notice could also require proper testing or certification of remedial work to demonstrate that the hazard has been successfully dealt with, since that would be a normal part of any scheme of work to remedy a defect. The FTT was unable to reach a conclusion on the critical question of whether the condition of the fire doors gave rise to a hazard. There was insufficient evidence to be satisfied that they were compliant, yet it was “unknown” whether they posed a risk. The FTT could have quashed the improvement notice on that basis, but it could not vary it without first being satisfied that there was a hazard, which was a conclusion it felt unable to reach. (3) The question whether a local authority’s decision was wrong had to be judged at the date the decision was made by the local authority and, while matters which had existed at that time but were not known to the authority might be taken into account, matters which could not have been known because they occurred only after the decision was taken were irrelevant: Waltham Forest London Borough Council v Hussain and others [2023] EWCA Civ 733; [2023] PLSCS 110 considered. Here, the FTT did not appreciate that distinction and referred both to the fact that it was entitled to take into account matters not known to the parties at the time the notice was given, and to the assistance it had received during the inspection in identifying the work carried out by the appellant after the notice. It was not clear whether any of the changed circumstances which the FTT observed concerned the fire doors. The notice included other (relatively minor) items of work which had been attended to by the time of the inspection. Work had also been done to the fire doors before the notice was served. It was later stated by the assessor engaged by the appellant, in compliance with the FTT’s decision, that the doors were functioning properly. But whether that favourable assessment was the result of a difference of view between the assessor and the independent inspector, or whether further work had been done after his inspection, was unclear. (4) The tribunal was prepared to set aside the FTT’s decision, but it was not in a position to make its own decision on the appellant’s original appeal against either the principle or the detail of the improvement notice. The respondent had more extensive powers under the 2004 Act than the tribunal. It could, for example, revoke an improvement notice made under section 12 if it considered it appropriate to do so (section 16(2)(b)). Unlike the tribunal, it would be entitled to exercise that power without first being satisfied that the original decision to serve the notice had been wrong. The appeal would be allowed and the decision of the FTT set aside. The improvement notice nevertheless remained unconfirmed and therefore inoperative. The appellant appeared in person; Brynmor Adams (instructed by Liverpool City Council) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Curd (trading as Glenwood Property Investments) v Liverpool City Council