London Borough of Haringey v Katia Goremsandu
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 08 November 2013 |
| Neutral Citation | [2013] EWHC 3834 (Admin) |
| Docket Number | CO/4100/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 November 2013 |
[2013] EWHC 3834 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/4100/2013
Ms X Montes Manzano (instructed by Tony Michael Legal Services) appeared on behalf of the Claimant
The Defendant appeared in person
This is an appeal by way of case stated by the London Borough of Haringey as prosecutor against the acquittal by the Highgate Magistrates of the Respondent, Ms Goremsandu, on ten informations alleging offences contrary to s.30(1) of the Housing Act 2004. The Act in s.30 makes it an offence for the person on whom an improvement notice is served to fail to comply with that notice. Appeal to the Residential Property Tribunal suspends the operation of the notice. It is a defence under s.30(4) for a person to show that he had a reasonable excuse for failing to comply with the notice.
The informations related to Flats 1, 2 and 3 at 232, West Green Road, Tottenham. The London Borough of Haringey, pursuant to its duties in the Housing Act 2004, had served three improvement notices on the Respondent, who was the manager of the property, in multiple occupation, as the magistrates found.
The improvement notices had schedules of works required to deal with hazards. They differed as between the three flats in a number of respects but in two respects they were common. Each of them required a separate boiler system to be placed in the flat for remedying excess cold and each required works to be done to the common parts to provide a secure door system from the street into the flats. The improvement notice in respect of Flat 3 required works to be done to the external communal door. This appears to have been done as a matter of convenience but nothing turns on it. There were other improvement notices which did not lead to summonses.
I mention the improvement notice in respect of Flat 4 because of the part which it came to play in the magistrates' reasoning. Flat 4, for these purposes, had the same requirement in respect of the central heating to that flat, namely that a new boiler be provided with radiators.
The Respondent appealed, as she was entitled to, to the Residential Property Tribunal. The precise contentions which she put before the Tribunal are not entirely clear from the Tribunal's decision.
At all events, crucially here, the Tribunal accepted that instead of a separate central heating system for each flat, the landlord could put in a communal central heating boiler, which would be in Flat 1, which would heat all the flats through the use and renovation of existing pipework.
The Respondent also argued for certain other changes to the notices and for a certain amount of extra time in respect of an extension to Flat 4. That is not the subject matter, as I say, of the informations, but what the Respondent placed before the magistrates and how they reacted to it is relevant.
Each of the improvement notices as originally served gave the recipient 112 days from the date of the notice to commence the remedial action and a further period of 84 days in which to complete it.
The Tribunal varied each of the four notices in relation to central heating by deleting the provision for a separate boiler system and substituting in each notice, whether Flat 1, 2, 3 or 4, the following paragraph of requirements:
"Renew the boiler in the first floor kitchen and upgrade the existing central heating system to provide radiators in all rooms and circulation areas."
In each flat, save Flat 3, this remedial action was to commence within a period of three months from the operative date of the notice and was to be completed within a period of six weeks from the commencement of the works.
That language was, however, different in relation to Flat 3. Although the works to the central heating were described in precisely the same way, the remedial action was to commence within a period of three months from the operative date and was to be completed "within a period of six months" from the commencement of the works. The difference was that in relation to Flat 3 the period for completion was six months, as opposed to six weeks for the identical works in the other three flats.
In relation to Flat 4, the improvement notice required an extension to be built and the landlord asked for nine months in which to do the works. The Tribunal agreed:
"… that it may well take nine months to build a satisfactory extension and we accept that nine months is a reasonable period in which the works required to rectify the hazards of flames, hot surfaces and food safety and crowding and space may be carried out."
It is perfectly clear from that decision that that relates only to Flat 4 because the decision goes through each notice in relation to each flat in sequence. It is equally clear that the nine month period for completion relates only to the works other than the boiler, because for the boiler in Flat 4, remedial action had to commence within a period of two months, (another probably unintended difference from the other flats but unhelpful to the respondent's case) and to be completed within a period of six weeks. For all the other Flat 4 hazards the remedial action had to commence within six months and be completed within three months.
The local authority wrote to the Respondent on a number of occasions, reminding her of the time limits consequent upon that decision. The operative date of the improvement notices as varied was 21 days from the Tribunal decision, which the local authority calculated as being 29 July. The period of three months and then six weeks would run from that. Accordingly, the period for compliance in relation to the six weeks works, if I can put it that way, became, because of a minor error in the Respondent's favour for calculating the operative date, 15 December 2011 (that is for the central heating works) and 15 February 2012 for the other works.
Visits by local authority officers show, as the magistrates accepted, that by those dates the works had not been complied with. The magistrates found as fact that although the works had not been completed by 15 February 2012, the Respondent had asked the Tribunal for the period for completion to be extended to nine months, ie, says the case stated, until the end of March 2012. The Respondent was hence relying on the defence available under the offence-creating provision in the Housing Act 2004 upon the defence that she had a reasonable excuse for not complying.
There being no issue of fact that by 15 February 2012 the works had not been completed and there being, on the finding of the Magistrates' no doubt that that was the date by which the works ought to have been done, the defence relied on was one of reasonable excuse. The reasonable excuse relied on was that the Respondent believed that in varying the notices the Tribunal had granted her nine months to complete all the works at 232, West Green Road.
The justices found that she had that belief and therefore the Court must approach this case on the basis that she had a genuine honest belief that she had a longer period than in fact was granted by the improvement notices to do the work.
The magistrates found as follows in paragraphs 6.5, 6.6 and 6.7:
"6.5 it was the error in the Tribunal document that had led the respondent to believe that she had 9 months to complete the work.
6.6 the respondent had a reasonable excuse for not complying with the Improvement Notices: she had applied to the Tribunal for 9 months to complete the work and due to the error in the document, formed the mistaken but understandable belief that she had been granted 9 months to complete the works.
6.7 the Justices considered whether the reasonable excuse resulting from the error in paragraph 35 of the Tribunal's decision should be limited to the works in respect of Flat 3 or whether it extended to the other flats as well. Paragraph 35 was not the only reference to a 9 month period in which to carry out works and the document was confusing and misleading as to dates. The Justices therefore conclude that the reasonable excuse applied to all three flats and dismissed all ten offences."
The first question for the opinion in the High Court is:
"Were we wrong to conclude that the Respondent's honestly held but mistaken belief that she had nine months in which to comply with the improvement notices resulting from the error in the document containing the Tribunal's decision was capable in law of amounting to a reasonable excuse for not complying with the improvement notices?"
The second question was:
"Were we wrong in not restricting the effect of the error in the document to the improvement notice in respect of Flat 3?"
The reference to paragraph 35 of the Tribunal's decision is the reference to the improvement notice variation in respect of Flat 3, where a period of completion was expressed as six months. It is quite clear from the magistrates' reference that they regarded that and were satisfied that it was indeed a mistake rather than a deliberate extension of time for that one flat.
It is evident from the requirement in relation to Flat 4, where the period of six weeks is given for completion but a two-month period for the commencement of works, that the Tribunal was not beyond inconsistencies in its requirements.
But the magistrates referred as well to other parts of "the document", as they call it, where there were references to nine...
To continue reading
Request your trial