Eradicating hazards: court of appeal gives guidance on the use of improvement notices
In Wood v Kingston Upon Hull City Council  EWCA Civ 364, the Court of Appeal considered who should be served with improvement notices and what should be contained in them.
Mr Wood was the freehold owner of a first floor flat. Kingston upon Hull City Council considered there to be inadequate fire resistance between the ground floor flat and the respondent’s flat. It served an improvement notice under the Housing Act 2004 s.12 on both owners, requiring remedial works to be carried out. The notice specified two alternative schemes. The first involved work solely to the ceiling of the ground floor flat; the second involved work affecting both flats.
In the Upper Tribunal Deputy President Rodger QC had held ( UKUT 165 (LC)) that a local authority was able to advance alternative schemes in an improvement notice but that it was ‘irrational’ in this situation to include the two flat scheme. Consequently, the improvement notice against Mr Wood was quashed as he did not have the ability to take any remedial steps in the ground floor flat.
This appeal was about who should be served with improvement notices and what should be contained in them.
In particular what should a local authority do when a hazard exists in one property (‘the affected property’) but the cause of the hazard is in another property (‘the causing property’) or at the boundary of the two properties? When can a local authority just serve the causing property only?
The Deputy President held that:
An improvement notice can only be served on the causing property if this is the ‘only way’ of protecting the health and safety of the occupiers and abating the hazard – but this should only be done if it is impossible to fix from within the affected property.
That an Improvement Notice can set out a number of options for remedial action.
That where any remedial action involved more than one owner co-operating it should be discouraged.
That it was ‘irrational’ to give two options in this case.
That, therefore, only one notice should be served on the other flat owner with one remedial action (the ceiling option).
The Court of Appeal (Patten, Underhill, Lewison LLJs) found (Wood v Kingston Upon Hull City Council  EWCA Civ 364) that the Deputy President had reached the right decision but by completely the wrong route. Serving just the other flat owner is appropriate because that is the easiest way to abate the hazard. Not because it would be impossible to address the problem from inside the Respondent’s flat.
The Deputy President went wrong because of his stringent approach to ‘necessary’ in section 11(4) Housing Act 2004. Section 11(4) reads:
(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. (emphasis added)
The Court of Appeal (Lewison LJ giving judgment) recognised that the heart of the appeal was what did ‘necessary’ mean in the subsection. It held that it meant taking the re-quired steps to eradicate the cause of the hazard and not just the symptoms. When deciding on the steps a local authority should take into account costs and disruption (paragraph 22). And the extent of the steps needed to eradicate the cause of the hazard; is each step actually needed to eradicate the cause (paragraph 23)? A local authority is entitled to suggest alternative remedial steps.
Local authorities are now able to serve an improvement notice on the property owner who is causing a hazard. That owner must comply with improvement notice if all the remedial steps in it are needed to stop the hazard.
The Court of Appeal also gave guidance about how a Tribunal should conduct any appeal against an improvement notice. The Tribunal is not restricted to public law breaches and can vary a notice if it considers other remedial steps are preferential. This might appear as an invitation to property owners to appeal improvement notices. But appeals will be rare if improvement notices are properly drafted, requiring proportionate, sensible and cost-effective steps.
Michael Paget appeared for Kingston upon Hull City Council.