There must be some way out of here.

‘Withdrawal’ of proceedings – we’ve been here before, with Spicer v Tuli, but this time, the purported withdrawal was in an appeal of an improvement notice to the Residential Property Tribunal. The appeal to the Upper Tribunal arose out of that.

Simon v Denbighshire CC [2010] UKUT 488 (LC)

Denbighshire had decided that a category 1 hazard existed in an HMO owned by Mr Simon, of excess cold. The Council served an improvement notice, requiring

the provision of insulating materials, the installation of double or secondary glazing, and the fitting of thermostatic radiator valves and electrical heating appliances in each of the bedsits.

Mr Simon appealed to the RPT and a hearing was set for August 2009. 3 weeks before the hearing, the Council wrote to the RPT, though not Mr Simon, purporting to ‘withdraw’ the Improvement Notice. The RPT sent a copy of this letter to Mr S, asking if he would be withdrawing his appeal. He replied:

“In the light of the contents of the Denbighshire letter there would seem little purpose in proceeding with the appeal, and I confirm that I will withdraw my appeal

I will confirm this in writing to you once I have received the letter from Denbighshire.”

Denbighshire did not write to Mr S. The RPT cancelled the appeal hearing without anything further from Mr S. Denbighshire did not remove the notice it had entered on the Land Registry of the improvement notice.

18 months later, Denbighshire:

served nine further improvement notices in relation to the Premises (one for each of the seven bedsits, one for the internal common parts, and one for the external building fabric). These notices informed the appellant of the respondent’s view that the premises were subject to the same category 1 hazard, excess cold, and required the same remedial work as the original Notice. The notices also added a catalogue of additional hazards in respect of which remedial action was required, most falling within category 2.

Mr S appealed the 9 notices to the RPT, arguing:

that “technically” his original appeal remained outstanding, which, he said, gave rise to a number of concerns. Since the most recent notices covered the same ground as the original Notice “I should not be paying twice for what is effectively one appeal”. He also invoked the principles of natural justice and double jeopardy and concluded “clearly I should not expect to have to go through such a process time after time merely because the Council wishes to impose its will in matters where I believe it is incorrect”.

He later suggested it was an abuse of process by Denbighshire.

The hearing of the appeal against the first notice was actually heard in July 2012. After the hearing, but before the decision was served, Denbighshire served a Notice of Revocation of the first notice.

The RPT decided that:

“We consider that the Notice having been withdrawn by the Council that it is not possible for the Landlord’s first [appeal] to proceed. The Notice once served does not become operative until either the period of 21 days (the period for making an application to the tribunal) has expired or, if an appeal is made, the date of this Tribunal’s decision (and the time for appeal to the Upper Tribunal) has passed. We determine that until the Notice becomes operative it can be withdrawn by the Council and notwithstanding that they appear not to have directly informed the Landlord that it was withdrawn, that it was.

We do not consider that the provisions of the Act relating to revocation apply as these can only operate once a notice has become operative.”

Mr S’s appeal fee should be refunded.

Mr S appealed to the Upper Tribunal.

The UT was not impressed with the RPT decision or Denbighshire. The relevant provisions of Housing Act 2004 are:

the general rule laid down by section 15(2) is that an improvement notice becomes operative at the end of the period of 21 days beginning with the day on which it is served.  That period of 21 days is also the time limit within which the recipient of an improvement notice may appeal to the RPT against the notice under Part 3 of Schedule 1 to the Act (Schedule 1, paragraphs 10(1) and 14(1)).

S.15(5) provides that in the event of an appeal, the notice does no become operative “until the appeal process (including any appeal to the Upper Tribunal) is completed and the notice is finally confirmed, or any period of suspension expires.”

S.16 sets out the conditions and process for revocation of an improvement notice by the Council, which requires service of a revocation notice under paragraph 6 of Part 2 of Schedule 1.

While it was common ground that the 2009 notice had not become operative. However, this did not, as the RPT had assumed, mean that the Council could withdraw or otherwise vary it.

It does not seem to me that is a permissible approach to the statutory scheme because the consequences of a notice not yet being operative are spelled out in the Act itself.  It is true that an improvement notice does not become operative until it has been confirmed on appeal or the time for appealing has expired.  No offence is therefore committed by the recipient of a notice who fails to comply with it before it has become operative.  Additionally a notice which has not yet become operative is not a local land charge.  Nonetheless a notice is still valid and amenable to the operation of the statutory scheme in the period before it becomes operative; where the Act intends that a specific provision will not apply to a notice before it becomes operative it says so expressly, as in section 30(1) (offences) and in section 37(2) (local land charges).  There is nothing in the Act which postpones the power of an authority to amend or revoke a notice until after it has become operative.  The fact that the Act allows for a period when an improvement notice need not be complied with pending the possibility of a successful appeal is therefore no justification for the adoption of informal or ad hoc procedures during that period.

The only route open to the Council given that it no longer wished to rely upon the notice, was either to revoke it, or consent to the appeal.

Denbighshire’s letter of ‘withdrawal’ could not be considered as a revocation. Not only did it suggest that the then appeal should be allowed, which cold not happen on a revoked notice, but there was no service on Mr S.

HA 2004 did not prescribe the form of the notice, but it had to provide “the authority’s decision to revoke the improvement notice, the reasons for the decision and the date on which it was made”. So simply deciding to revoke the notice was not enough, even if that was what they had done.

Finally, Denbighshire had, very belatedly, asserted that the reason for its ‘withdrawal’ of the notice was that “it had not been served correctly”.  For a category 1 hazard, s.15 provides that a notice may be revoked only if the Council considers that there are ‘special circumstances’. It was hard to see that merely getting service wrong could be an exceptional circumstance, as the answer was simply to serve it properly at the time, once the failure to serve was realised.

The duty to give reasons for revocation was a safeguard both for tenants and the recipient of the notice.

If the respondent had informed the appellant in 2009 that it was revoking the Notice because it had doubts about service, he could not have been misled into thinking that no further enforcement action was to be expected.  When he received the respondent’s e-mail withdrawing the Notice, the appellant might reasonably have concluded that the respondent accepted his assertion that there was no category 1 hazard at the Premises and that the remedial work was not required.  The appellant’s annoyance in 2011 on being served with further notices making the same allegations is understandable.

Appeal allowed. The RPT had been wrong to cancel the hearing in 2009 and was in error in its decision of June 2012. “Although the Notice was formally revoked between the hearing and the publication of the decision, the RPT appears not to have been aware of the revocation.  The Notice had not been revoked by the time of the appeal and the correct analysis was that the purported withdrawal had been of no effect.  If the respondent was unwilling to contest the appeal, the RPT should have quashed the Notice”.

Comment

A different situation and a involving a statutory scheme rather than common law and CPR provisions, but again, we see the dispelling of this idea that many Local Authorities seem to have that proceedings can be ‘withdrawn’, and that this is different to them being discontinued, dismissed or, as here, revoked.

 

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Posted in FLW case note, Housing law - All, Regulation and planning and tagged , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

2 Comments

  1. The terminology of the new tribunal procedure rules is “withdrawal” (rule 22 in fact). It requires “consent” of the tribunal.

    In practice notices of withdrawal don’t seem to be complying with rule 22, which is a pity.

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