Housing – House in multiple occupation – Improvement notice – Housing Act 2004 – Respondent council serving improvement notice in respect of fire risk to appellant’s first-floor flat in HMO by reason of inadequate separation from ground-floor flat – Notice served both on appellant and on freehold owner of ground-floor flat – Whether notice properly served on both owners – Appropriate person to bear cost of works – Whether permissible for notice to specify alternative courses of remedial action – Appeal allowed
The appellant was the freehold owner of several flats, which he let to tenants, in a building which was a house in multiple occupation (HMO) for the purposes of the Housing Act 2004. The freehold of the ground-floor flat belonged to a different owner, who occupied it herself. In 2014, the respondent council served an improvement notice, under section 12 of the 2004 Act, complaining of a fire hazard to the occupier of the first-floor flat by reason of inadequate separation from the ground-floor flat. The notice required the provision of additional fire protection, either in the form of plasterboard applied to the ceiling of the ground-floor flat or the installation of fire resistant material beneath the floor of the first-floor flat. The notice was served both on the appellant and on the owner of the ground-floor flat.
The appellant argued that the ground-floor owner should be the one to take action since she could remedy the problem by carrying out relatively inexpensive works costing about £1,000, whereas he could provide the required protection only by carrying out expensive and disruptive works to his first-floor flat at a cost of £7,000.
The appellant’s appeal against the improvement notice was dismissed by the first-tier tribunal (FTT). The FTT found that the appellant’s legal title to the first-floor flat included one-half of the depth of the joists between the floor of that flat and the ceiling of the ground-floor flat. It held that: (i) the notice had been properly served on the owners of both flats as persons “having control” of the HMO for the purposes of the 2004 Act; and (ii) the cost of the work should be met by the appellant alone, unless the owner of the ground-floor flat refused access to that flat, in which case the cost should be divided between them with the ground-floor owner being responsible for the amount by which the cost was increased as a result of the need to carry out the work from the appellant’s flat. The appellant appealed.
Held: The appeal was allowed.
(1) Although an improvement notice could require remedial action to be taken on premises other than the dwelling on which the hazard existed, the statutory scheme limited the premises in relation to which remedial action may be required by means of the rules in section 11(3) and (4). The principle underlying those provisions was that, wherever possible, remedial action should be taken in the residential premises on which the hazard existed. In the instant case, the residential premises on which the hazard arose were the first-floor flat. The remedial action which could be required was governed by section 11(3)(b), applying to flats including those which were part of an HMO, subject to section 11(4); the effect of those provisions was that remedial action could only be required to be taken outside of the first-floor flat if it was necessary to do so, because there was no remedial action which could be taken within the first-floor flat itself which would protect the health or safety of its occupier against the relevant hazard.
Those conditions were met since both the possible alternative courses of action identified by the respondents required the taking of action outside of the first-floor flat and within the boundaries of the ground-floor flat. The most convenient and least disruptive remedial action would be to replace the relevant area of the ceiling of the ground-floor flat. The installation of a fire-resistant product between the floor joists on the first-floor flat would be an alternative course of remedial action which would protect the occupiers of that flat equally well, but the installation of an appropriate product between the floor joists, in an area which belonged for half its depth to the first-floor flat and half to the ground-floor flat, would similarly require work to be carried out in a part of the building outside the first-floor flat as well as within that flat. That being so, it was within the power conferred by section 11(3)(b) for the improvement notice to require the taking of those courses of action.
(2) Under Schedule 1 to the 2004 Act, the appropriate person on whom to serve an improvement notice would depend on the nature of the “specified premises”, as defined in section 13(5). The specified premises were those specified in the notice as premises in relation to which remedial action was to be taken in relation to the hazard, as opposed to the premises on which the hazard itself existed. The specified premises in the instant case were therefore the ground-floor flat, so far as the replacement of part of the ceiling was concerned, and that flat plus the first-floor flat, so far as the installation of material in the space between the floor joists was concerned. Where the specified premises were a dwelling which was not licensed under Part 2 or an HMO which was not licensed under Part 3 of the 2004 Act, and which in either case was a flat, para 3(2) of Schedule 1 required that an improvement notice be served on a person who was 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 the owner of that flat and the notice was unlawful so far as it required the appellant to replace the ceiling of the ground-floor flat. Similarly, the appellant could not be required to contribute to the cost of those works; the 204 Act did not permit a contribution to be required from someone who was not “an owner or owners of the specified premises”: see para 11(1) of Schedule 1.
The position was less clear in relation to a requirement to take remedial action partly within the first-floor flat and partly within the ground-floor flat. A notice served on each of the owners requiring that each carry out part of the work within their own flat would be unsatisfactory, since this was a single scheme of work. A pragmatic solution was to regard the appellant and the ground-floor owner jointly as the appropriate addressees of such a notice, and to serve a single notice treating them collectively as the owners of the flats where the remedial work was required. There was nothing in the 2004 Act to prevent para 3(2) of Schedule 1 from being read in that way: Pollway Nominees Ltd v Croydon London Borough Council [1987] AC 79; [1986] 2 EGLR 27 applied. Accordingly, in relation to the second scheme of remedial action, namely the installation of fire resistant material between the joists, the FTT had correctly found that the improvement notice was properly addressed both to the appellant and the ground-floor owner. Who should pay for those works was again to be determined under para 11(1) of Schedule 1, taking into account the factors set out in para 16. Applying those factors, it would be fair to require an equal contribution to the cost of the work of installing fire resistant material between the floor joists, if it were proper to require that course of action.
(3) Nothing in the 2004 Act expressly prohibited an authority from specifying more than one type of remedial action in a single notice. However, it was undesirable to require two persons to remedy a hazard by taking either of two courses of remedial action, unless they were joint owners of the same interest in the premises on which the action was to be taken. The proposal of alternative courses of action risked making the necessary cooperation more difficult to achieve and, for that reason, should be avoided. In particular, it was essential that an improvement notice should not require alternative forms of remedial action to be taken where one of the alternatives was to carry out work in premises of which one of the recipients of the notice was the sole owner, and the other alternative was to carry out work either in the premises of the other owner or in both of the premises.
(3) the instant case, there was no difference in effectiveness between the two alternative courses of remedial action and the practical difference instead lay in the degree of disruption and cost which each would involve. It would be irrational to require more expensive and more disruptive work where a cheaper and easier alternative was available. In those circumstances, while it might in principle be permissible to specify alternative courses of action on different premises, it would be irrational and therefore unlawful to do so in the instant case in light of the financial consequences for each of those concerned. The only permissible response was to require the replacement of part of the ceiling of the ground-floor flat. It was not unreasonable to expect the ground-floor owner to undertake that work. The improvement notice was varied accordingly.
The appellant appeared in person; Michael Paget (instructed by the legal department of Kingston upon Hull City Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read the transcript of Wood v Kingston upon Hull City Council
