Decision Nº LCA 426 2010. Upper Tribunal (Lands Chamber), 10-10-2011
| Jurisdiction | UK Non-devolved |
| Judge | Mr Andrew J Trott FRICS |
| Date | 10 October 2011 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 426 2010 |
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UPPER TRIBUNAL (LANDS CHAMBER)
|
UT Neutral citation number: [2011] UKUT 365 (LC)
UTLC Case Number: LCA/426/2010
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – prohibition order – Housing Health and Safety Rating System Regulations – category 1 hazard – flat – crowding and space – section s584A Housing Act 1985 – S.5 Land Compensation Act 1961 – Rule 4 – whether use of flat (a) contrary to law (b) detrimental to health of the occupants – nil compensation awarded
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN DAVID HAQ Claimant
and
EASTBOURNE BOROUGH COUNCIL CompensatingAuthority
Re: Flat 7,
101 Pevensey Road,
Eastbourne,
East Sussex,
BN22 8AD
Determination on the basis of written representations under rule 46 of the
Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010.
by
A J Trott FRICS
The following cases are referred to in this decision:
Pattle v Secretary of State for Transport UKUT 141 (LC)
R (Iran) v Secretary of State [2005] EWCA Civ 982
Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382 (HL)
The following cases were referred to in argument:
Imitiaz Hussain v Salford City Council Lands Tribunal: LCA/7/2006 (unreported)
Greens Motor Holdings Ltd v Preseli Pembrokeshire District Council [1991] 1EGLR 211
Shopsearch (UK) Ltd v London Borough of Greenwich [2009] RVR 198
Introduction
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The claimant, Mr David Haq, is the freehold owner of 101 Pevensey Road, Eastbourne, East Sussex, BN22 8AD. The property is a semi-detached house which has been divided into seven self-contained flats. On 24 July 2008 the compensating authority, Eastbourne Borough Council, served a prohibition order on Mr Haq under section 20 of the Housing Act 2004 in respect of the second floor flat known as Flat 7. The council identified crowding and space as a category 1 hazard due to the small total size of the flat which they said was too small to let as a separate unit of accommodation.
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On 13 February 2009 the council revoked the prohibition order and replaced it with another prohibition order suspended for the duration of the current tenancy of Flat 7 which was occupied by Ms Sylvia Ncube and her daughter. The new prohibition order, which was made on the same grounds as the original order, was served on Mr Haq on 5 March 2009. Ms Ncube and her daughter vacated Flat 7 on 1 October 2009 at which time the suspended prohibition order took effect.
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Mr Haq claimed compensation under section 584A of the Housing Act 1985 in the sum of £45,000. The compensating authority say that no compensation is payable.
Facts
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There is no statement of agreed facts and I find the following facts based upon the evidence.
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The subject property is a large, three-storey semi-detached house constructed in the late 19th century. It has rendered solid masonry walls under a pitched tiled roof with flat lead roof areas.
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Flat 7 is located at the rear of the second floor and comprises a studio room with a kitchen sink, cupboard and bench unit with a worktop mounted two-ring cooker. There is a separate shower room fitted with a shower cubicle, wash basin and WC.
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The compensating authority measure Flat 7 at 12.52 m2, including the shower room at 2.52 m2. This is the same as the measurement of the whole accommodation contained in the valuation report prepared by Mr Michael Reid FRICS, one of three valuation reports relied upon by the claimant. The other two reports give areas of 14.6 m2 (Mr Stewart Gray FRICS) and approximately 12 m2 (Mr T Pearson MRICS). Mr Gray’s report refers to “maximum” measurements. I am satisfied that the compensating authority’s measurements are reliable and I adopt them for the purposes of my decision.
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Planning permission was granted on 14 October 1975 for internal alterations and the change of use of 101 Pevensey Road from a maisonette on ground and first floors and one flat on each of the first and second floors to five holiday flatlets and a warden’s flat. Flat 7 was shown as a communal bathroom on the plan accompanying the planning application.
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The 1975 planning permission was subject to five conditions. Condition 5 stated:
“That in no way shall the holiday units be let on a permanent tenancy within the meaning of the Rent Acts.”
On 16 September 2002 the claimant submitted a planning application seeking to continue the use of 101 Pevensey Road without complying with condition 5. The claimant described the proposed development as:
“Change of usage – from holiday flat lets to permanent resident. Thus allowing letting to professional tenants, owner living there or flats being sold off individually. Change from six holiday flats to six permanent resident flats.”
Planning permission was granted on 12 December 2002 for:
“Relaxation of condition 5 of planning permission EB/1975/0371 to allow six holiday flats to be used as six residential self-contained flats.”
Statutory provisions
Housing conditions
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Part 1 of the Housing Act 2004 introduced a new system for assessing the condition of residential premises known as the Housing Health and Safety Rating System (HHSRS). Under section 5(1) of the 2004 Act, if a local housing authority consider that a category 1 hazard exists on any residential premises, they must take the appropriate enforcement action in relation to the hazard.
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A “category 1 hazard” is defined under section 2(1) of the 2004 Act as a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazards of that description, a numerical score of or above a prescribed amount. “Prescribed” means prescribed by regulations. In England those regulations are the Housing Health and Safety System (England) Regulations 2005 (the 2005 Regulations).
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Under the 2005 Regulations a hazard is of a prescribed description for the purposes of the 2004 Act where the risk of harm is associated with the occurrence of any of the 29 matters or circumstances listed in Schedule 1.
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Where a person carrying out an inspection on behalf of the local housing authority under section 4 of the 2004 Act determines that a hazard of a prescribed description exists and considers, having regard to any guidance for the time being given under section 9 of the 2004 Act in relation to the assessment of hazards, that it is appropriate to calculate the seriousness of that hazard, the seriousness of that hazard shall be calculated in accordance with regulation 6(2) to 6(4) of the 2005 Regulations.
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The guidance to which the local housing authority must have regard under section 9 of the 2004 Act is the Housing Health and Safety Rating System: Enforcement Guidance and the Housing Health and Safety Rating System: Operating Guidance, both of which were published in February 2006.
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Both the 2005 Regulations and the published guidance contain detailed and complex explanations of the prescribed method for calculating the seriousness of hazards which is to be expressed as a numerical score. Regulation 7 of the 2005 Regulations prescribes the bands applicable to the range of numerical scores and regulation 8 provides that where a hazard falls within bands A, B or C the hazard is a category 1 hazard which gives rise to a duty on the local housing authority to act. Where the numerical score falls within any other band (E to J) it is a category 2 hazard which gives rise to a discretion for the local housing authority to act.
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Section 5(2) of the 2004 Act, insofar as relevant to the present reference, defines “the appropriate enforcement action” as whichever of the following...
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