Wood v Kingston Upon Hull City Council

For a category 2 housing hazard, “necessary” remedial action is assessed contextually. The inquiry includes cost, disruption and whether the work removes the underlying deficiency rather than merely its symptoms. An improvement notice may require work in premises containing the deficiency even where the risk arises elsewhere. Alternative schemes are legally permissible, but should generally be avoided where different owners must co-operate. An appeal against an improvement notice is a merits rehearing, not judicial review: the tribunal may vary the notice to adopt a cheaper, equally effective or less disruptive scheme.

Kingston upon Hull City Council served improvement notices under the Housing Act 2004 on the owners of adjoining flats because inadequate fire resistance created a category 2 fire hazard. The proposed remedial schemes involved either replacing the ground-floor ceiling or installing fire-resistant material between the floor joists.

Mr Wood appealed first to the FTT and then to the Upper Tribunal Lands Chamber. The Deputy President quashed the notice against Mr Wood and varied the notice against Ms Peacock. His decision is reported at [2015] UKUT 0165 (LC). The Council appealed, arguing that the irrationality conclusion was outside the scope of the appeal and was wrong. The central issues were the meaning of “necessary”, the permissibility of alternative remedial schemes, and the scope of the tribunal’s statutory appeal powers.

The Court of Appeal dismissed the Council’s appeal. Lord Justice Lewison gave the judgment, with Lord Justices Underhill and Patten agreeing.

1. Hazard and necessity. Under the Housing Act 2004, a hazard comprises a risk of harm and the deficiency giving rise to it. The risk and deficiency may be located in different dwellings. The word “necessary” in section 11(4)(b), applied through section 12(3), requires a contextual judgment. It lies between the indispensable and the merely useful or expedient. Cost, disruption, responsibility for the deficiency, and the need to eradicate its cause rather than its symptoms are relevant.
2. Location and recipients. The statute permits remedial work in premises containing the deficiency where that is necessary to protect occupiers of the premises where the hazard exists. Work wholly within the ground-floor flat could therefore be required of its owner, Ms Peacock, but not of Mr Wood, who did not own that flat. A scheme requiring work in both flats could properly address both owners.
3. Alternative schemes. The Act did not prohibit an improvement notice from specifying alternative schemes. A single owner could choose between alternatives and comply with the notice. However, requiring different owners to co-operate in alternative schemes was highly undesirable and should generally be avoided. Where the authority concluded that work at the location of the deficiency was necessary, requiring different work elsewhere was inconsistent with that conclusion.
4. Scope of appeal. An appeal under Schedule 1 paragraph 15 is a rehearing on the merits, not judicial review. The tribunal’s grounds of appeal are unlimited. It need not find irrationality before varying a notice. It may adopt a cheaper, equally effective or less disruptive scheme, or quash one notice and confirm another because the evidence shows a better way forward. The Deputy President’s reasoning in public-law terms was therefore unnecessary, but his overall conclusion was correct.

• Court of Appeal (Civil Division): The Council’s appeal was dismissed. The Court held that the Upper Tribunal’s overall conclusion was correct, although its reasoning on irrationality was flawed. Judgment: [2017] EWCA Civ 364.
• Upper Tribunal Lands Chamber: Deputy President Rodger QC quashed the improvement notice against Mr Wood and varied the notice against Ms Peacock. Judgment: [2015] UKUT 0165 (LC).
• FTT: Mr Wood appealed to the FTT before appealing to the Upper Tribunal. The judgment does not state the FTT citation or outcome separately.