Park Green Investments Limited v Teignbridge District Council

A person served with an improvement notice commits an offence only if the specified remedial action was not completed within the notice period and the person had no reasonable excuse. A tribunal must consider that defence even where an unrepresented appellant does not identify it expressly. Repeated refusal of access by a leaseholder, and repeated restoration of obstructions removed from common parts, may constitute a reasonable excuse. A tribunal determining a civil penalty appeal must start from the authority’s policy but must exercise its own judgment. Guidance and policy are advisory, not rules, and the tribunal may depart from an arbitrary or anomalous policy after giving reasons.

Teignbridge District Council served Park Green Investments Limited, the freeholder of a building divided into three long-leasehold flats, with an improvement notice under the Housing Act 2004. The notice required work to a defective fire alarm in Flat 2 and the removal of obstructions from the escape route and cellar stairs. The Council later imposed a £10,000 financial penalty for failure to comply. On appeal, the First-tier Tribunal reduced the penalty to £5,000, finding lower culpability but applying ten points for a first offence under the Council’s policy. The central issues were whether the FTT had properly considered the statutory reasonable-excuse defence and whether it had treated the policy as binding.

The appeal was allowed and the financial penalty notice was set aside.

1. The FTT failed properly to consider the defence in section 30(4) of the Housing Act 2004. The appellant’s evidence raised the issue, notwithstanding that it was not expressed in statutory language. The FTT accepted, or did not reject, evidence of repeated attempts to obtain access to Flat 2 and to clear the common parts, but it did not decide whether those facts amounted to a reasonable excuse or explain why they did not.

2. Refusal of access and repeated restoration of obstructions could not be treated as incapable of amounting to a reasonable excuse. Whether further inspections or an injunction were reasonable depended on the circumstances. The appellant was not required to commence proceedings within the notice period where the notice required works, the leaseholder controlled access, and proceedings could not have secured timely compliance.

3. The FTT also misunderstood the source and status of the relevant guidance. The ten-point addition for a first offence appeared in the Council’s policy, not the Government Guidance. Under London Borough of Waltham Forest v Marshall [2020] UKUT 35 (LC) and Kazi v Bradford Metropolitan District Council [2023] UKUT 263 (LC), a tribunal must start from the authority’s policy, give it proper weight, and normally follow it, but must exercise its own discretion. It must not treat policy as a mandatory rule or fetter its discretion where persuaded that departure is justified.

4. On redetermination, the Tribunal found a reasonable excuse for the failure to repair the alarm in Flat 2 and for the failure to keep the escape route clear. As to the cellar stairs, the notice required their clearance but did not expressly require them to remain clear; the appellant had cleared them, and the later return of items did not establish breach of the notice. In any event, the leaseholder’s conduct provided a reasonable excuse.

5. The Tribunal redetermined the appeal rather than remitting it. It did not reopen the validity or contents of the improvement notice. If category 1 hazards remained, the Council could consider further notices addressed to the leaseholders, having regard to the statutory allocation of responsibility.

• First-tier Tribunal (Property Chamber): reduced the Council’s £10,000 financial penalty to £5,000.
• Upper Tribunal (Lands Chamber): allowed the appeal, set aside the financial penalty notice and redetermined the appeal.