DECISION
Introduction
1. 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.
2. 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.
3. 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
4. There is
no statement of agreed facts and I find the following facts based upon the
evidence.
5. 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.
6. 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.
7. 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.
8. 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.
9.
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
10.
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.
11.
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).
12.
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.
13.
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.
14.
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.
15.
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.
16.
Section 5(2) of the 2004 Act, insofar as relevant to the present
reference, defines “the appropriate enforcement action” as whichever of the
following courses is indicated by subsection (3) or (4):
(a)
Serving an improvement notice (section 11),
(b)
Making a prohibition order (section 20),
(c)
Serving a hazard awareness notice (section 28),
(d)
Taking emergency remedial action (section 40) and
(e)
Making an emergency prohibition order (section 43).
17.
Subsection 5(3) states that if only one course of action within
subsection (2) is available to the authority in relation to the hazard, they
must take that course of action.
18.
Subsection 5(4) states that if two or more courses of action within
subsection (2) are so available, the authority must take the course of action
which they consider to be the most appropriate of those available to them.
19.
Section 584A of the Housing Act 1985 provides for compensation to be
payable where a prohibition order becomes operative:
“584A(1) … where a relevant
prohibition order becomes operative in respect of any premises, or a demolition
order … is made in respect of any premises, the local housing authority shall
pay to every owner of the premises an amount determined in accordance with
subsection (2).
(2) the amount referred to in subsection (1) is the
diminution in the compulsory purchase value of the owner’s interest in the
premises as a result of the coming into operation of the relevant prohibition
order or, as the case may be, the making of the demolition order; and that
amount –
(a) shall be determined as at the
date of the coming into operation or making of the order in question; and
(b) shall be determined (in default
of agreement) as if it were compensation payable in respect of the compulsory
purchase of the interest in question and shall be dealt with accordingly.
…
(4) For the purposes of this section –
‘compulsory purchase value’, in relation to an owner’s
interest in premises, means the compensation which would be payable in respect
of the compulsory purchase of that interest if it fell to be assessed in
accordance with the Land Compensation Act 1961.
…
‘premises’, in relation to a prohibition order, means
premises which are specified premises in relation to the order within the
meaning of Part 1 of the Housing Act 2004;
‘relevant prohibition order’, means
a prohibition order under section 20 or section 21 of the Housing Act 2004
which imposes in relation to the whole of any premises a prohibition on their
use for all purposes other than any purpose approved by the authority.”
20.
Compensation is assessed by reference to the six valuation rules
contained in section 5 of the Land Compensation Act 1961. The dispute in this
reference involves rule 4 which states:
“Where the value of land is
increased by reason of the use thereof or any premises thereon in a manner
which could be restrained by any court, or is contrary to law, or is
detrimental to the health of the occupants of the premises or to the public
health, the amount of that increase shall not be taken into account.”
Meaning of house in multiple occupation
21.
Part 7 of the Housing Act 2004 defines a “house in multiple occupation”
in section 254 as a building or part of a building that, for the purposes of
this reference, meets any one of three tests; the standard test, the
self-contained test, or the converted building test.
22.
Section 254(2) states that a building or part of a building meets the
standard test if -
“(a) it consists of one or more
units of living accommodation not consisting of a self-contained flat or flats;
(b) the living accommodation is
occupied by persons who do not form a single household (see section 258);
…”
23.
Section 254(3) states that a building or part of a building meets the
self-contained test if -
“(a) it consists of a self-contained
flat; and
(b) paragraphs (b) to (f) of subsection (2) apply
(reading references to the living accommodation concerned as references to the
flat).”
The first of the paragraphs in
the second part of the self-contained test is found at section 254(2)(b); see
paragraph 21 above. Section 258(2) states:
“Persons are to be regarded as not
forming a single household unless –
(a)
they are all members of the same family, or
…”
24.
Section 254(4) states that a building or part of a building meets the
converted building test if -
“(a) it is a converted building;
(b)
it contains one or more units of living accommodation that do not
consist of a self-contained flat or flats (whether or not it also contains any
such flat or flats);
(c)
the living accommodation is occupied
by persons who do not form a single household (see section 258);
…”
25.
A “self-contained flat” is defined under section 254(8) as meaning:
“a separate set of premises (whether or not on the same
floor) –
(a)
which forms part of a building;
(b)
either the whole or a material part of which lies above or below some
other part of the building; and
(c)
in which all three basic amenities are available for the exclusive use
of its occupants.”
“basic amenities” is defined in
that section as –
“(a) a
toilet,
(b)
personal washing facilities, or
(c) cooking facilities.”
Planning: lawful use
26.
Section 171B of the Town and Country Planning Act 1990 states:
“171B(1)…
(2) Where there has been a breach of planning control
consisting in the change of use of any building to use as a single
dwellinghouse, no enforcement action may be taken after the end of the period
of four years beginning with the date of the breach.
(3) In the case of any other breach of planning control,
no enforcement action may be taken after the end of the period of ten years
beginning with the date of the breach.
…”
A “building” includes any part of a building (section 336(1)
of the 1990 Act).
27.
Section 191 of the 1990 Act deals with certificates of lawfulness of existing
use or development and states:
“191(1) If any person wishes to ascertain whether -
(a)
any existing use of buildings or other land is lawful
…
he may make an application for the purpose to the local
planning authority specifying the land and describing the use…
(2)
For the purposes of this Act uses…are lawful at any time if –
(a)
no enforcement action may then be taken in respect of them (whether
because they did not involve development, or require planning permission or
because the time for enforcement action has expired for any other reason); and
(b)
they do not constitute a contravention of any of the requirements of any
enforcement action then in force.
…
(4)
If, on an application under this section, the local planning authority
are provided with information satisfying them of the lawfulness at the time of
the application of the use…described in the application…they shall issue a
certificate to that effect; and in any other case they shall refuse the
application.
…
(6) The lawfulness of any use…for
which a certificate is in force under this section shall be conclusively
presumed.”
The prohibition orders
28.
Officers of the council’s Environmental Health Department Private
Housing Team inspected 101 Pevensey Road on 23 April 2008. Following that
inspection the council determined that there was a prescribed hazard at Flat 7
and that there was a risk of harm associated with paragraph 11 of the matters
and circumstances listed in Schedule 1 to the 2005 Regulations, namely
“Crowding and Space: a lack of adequate space for living and sleeping.” The
application of the HHSRS led to a hazard rating that placed the hazard into
prescribed Band A, the highest band of category 1 risk. The council proceeded
to serve a prohibition order on the claimant on 24 July 2008.
29.
The council gave reasons why they considered a prohibition notice to be
the most appropriate enforcement action. They said:
“A prohibition order is considered the most appropriate
action as the local authority has a power to specify the maximum number of
persons who could occupy a premise where it is too small for the household’s
needs. In this case the accommodation is too small for occupation. Due to the
lack of space within the flat it is considered that the likelihood of an
occurrence of accidents, hygiene risks and physiological related conditions is
greatly increased.”
The council said that neither a
hazard awareness notice nor an improvement notice was appropriate. Nor were
remedial works possible. Emergency action was not appropriate:
“As the hazards identified do not pose an imminent risk to
the health or safety of the occupants.”
The council commented that:
“It is not appropriate to suspend
the prohibition order as the hazard identified needs to be removed within a
specified time period.”
30.
Mr Haq did not appeal against the prohibition order which thus became
operative on 21 August 2008, 28 days from the date of the order.
31.
In their reply to the claimant’s statement of case the compensating
authority said:
“At
the conclusion of the 28 day period the enforcement of the Order was reviewed
and a decision was taken not to enforce the Order on the basis of Ms Ncube’s
difficulty in finding and resourcing alternative accommodation.”
32.
The prohibition order did not provide for its operation to be suspended
under section 23 of the 2004 Act. On 13 February 2009 the council revoked the
original prohibition order under section 25 of the 2004 Act and replaced it on
5 March 2009 with another (similar) prohibition notice suspended for the
duration of Ms Ncube’s tenancy. The council explained that it:
“Did not wish to be
responsible for making the present tenant homeless as she did not have access
to either public or private resources to enable her to obtain suitable
alternative accommodation.”
Ms Ncube and her daughter vacated Flat 7 on 1 October 2009 and
the suspended prohibition order became operative on that date.
The case
for the claimant
33.
In his particulars of claim the claimant requested that compensation
should be determined at the date the tenant vacated the premises and the
suspended prohibition order became operative (1 October 2009).
34.
In response to a written request from the Tribunal that the parties
should agree the valuation date the claimant in a letter dated 19 November 2010
said that:
“It is our position that the valuation date is 24th July
2008 as this is the date when the Prohibition order had been made. The Order
has been in force ever since this date. As per your letter it refers to either
the coming into operation of the order or the making of the order. It is the
latter that is the basis of the Claimant’s claim.”
The claimant
maintained this position in further correspondence dated 22 December 2010.
35.
Mr Haq claimed £45,000 and relied upon three valuation reports (with the
permission of the Tribunal). These are summarised below:
(i)
Mr T Pearson MRICS, Sussex Surveyors
Date of Report: 16 December 2009
Valuation Date: 24 July 2008
Instructions: “opinion as to [the subject property’s]
market valuation for the assessment of compensation payable”
Conclusions: value of Flat 7 was £50,000 based upon
comparables including investment sales, i.e. capitalised rental income.
Alternative use value: £5,000 as storage accommodation.
Compensation was £45,000 (difference between flat value and alternative use
value).
(ii) Mr Stewart Gray FRICS,
Austin Gray
Date of Report: 30 July 2010
Valuation Date: 24 July 2008
Instructions: “to prepare a valuation for the diminution in
value of [Flat 7]”
Conclusions: value of Flat 7 was £42,000 based upon
comparables, including investment sales.
Alternative use value: let as an additional non
self-contained bedroom together with Flat 6 for £40 pcm.
Compensation: £36,000 (loss of income of £2,880 pcm
capitalised at 8%).
(iii)
Mr Michael Reid FRICS, Reid & Dean
Date of Report: 9 August 2010
Valuation Date: 24 July 2008
Instructions: “requires advice on the diminution in the
value of [the freehold interest of 101 Pevensey Road] which arises as a result
[of the prohibition order]”
Conclusions: diminution in the freehold value of 101
Pevensey Road was £35,000 based upon an analysis of sales of local properties
with six bedrooms or more to give a capital value “per room” (the comparables
were houses in multiple occupation and self-contained flats)
Compensation: £35,000 (represented
by the loss of a one bedroom self-contained flat)
36.
The claimant argued that the council’s action following the original
service of a prohibition order by allowing Ms Ncube and her daughter to remain
in occupation until 1 October 2009 was inconsistent with their assertion that
Flat 7 was a category 1 risk under HHSRS and not suitable for accommodation by
reason of crowding and space. The claimant said that, according to the HHSRS
Enforcement Guidance, a prohibition order could only be revoked (absent special
circumstances) if the hazard no longer existed. If the occupation of Flat 7
was a category 1 risk it was wrong to revoke the first prohibition order and to
suspend the second one.
37.
In respect of planning permission the claimant argued (i) that the
warden’s flat already had planning consent together with the other five holiday
flats and therefore “the addition of a further holiday flat merely augments
what had previously been granted”; and, alternatively, (ii) that Flat 7 had
“remained unauthorised since the claimant’s purchase, and would now be immune
from enforcement action, and would in any event qualify for a Certificate of
Lawful Use.” In his submissions dated 4 April 2011 the claimant provided
evidence to support his claim that the separate residential use of Flat 7 was
immune from enforcement action.
38.
Firstly, the claimant referred to a brochure from Carrwood Holiday
Flats, said to be the previous owner, advertising seven flats to let in July
2002. (Mr Haq is shown on the planning application dated 16 September 2002 as
being the freeholder of 101 Pevensey Road so it appears that he probably
purchased the property at some time between July and September 2002. But there
is no witness statement from the claimant about his period of freehold
ownership of 101 Pevensey Road, the use made of Flat 7 or the period of
occupation of Ms Ncube or any other tenant of the flat.) The brochure is not
dated and there is nothing in it to confirm the claimant’s assertion that it
was produced in July 2002. The accommodation was summarised on the first page
of the brochure and included “Flatlet 7”, said to be suitable for one person.
There were three other “flatlets”, numbers 1, 3 and 5 which were located on the
ground, first and second floors respectively. Each was said to be suitable for
two persons. “Flats” 2, 4 and 6 were located on the ground, first and second
floors respectively. These were larger flats with Nos. 2 and 6 being suitable
for up to three persons and No.4 being suitable for up to five persons. There
were descriptions and floor plans of each flat/flatlet except for No.7 which
was only referred to on the first page. All the flats/flatlets were said to be
self-contained.
39.
Secondly, the claimant produced a valuation report for the Royal Bank of
Scotland dated 12 July 2002 and signed by “J K Haynes, Lambor Associates” but
written on paper headed “Allied Surveyors Brighton Office”. The instructions
were “to value the freehold interest in the above property [101 Pevensey Road]
for loan security purposes.” It was not stated in terms that the loan was for
Mr Haq. The premises were inspected by Mr Haynes on 10 July 2002. The
accommodation was described in paragraph 3 of the report which stated “The
property is described as holiday flats…” The report then went on to describe
briefly each of seven flats. It only identified units 1 to 6 but there was
apparently a typing mistake since unit 4 appeared twice, once on the first
floor and again on the second floor. The descriptions of units 1 and 2 on the
ground floor and unit 3 on the first floor matched those shown in the
brochure. But the description of unit 4 on the first floor differed from the
brochure. The valuation report described it as “lounge with kitchen, double
bedroom and bathroom”. The brochure described it as “a self-contained two-bedroom
unit, ideal for family occupation…” There was also a discrepancy in the
description of the units on the second floor. The valuation report referred to
three flats, described (wrongly) as units 4, 5 and 6. It was not clear from
the descriptions whether unit 4 or 5 corresponded to Flat 7. Both were
described as bedsitting rooms although the description of unit 5 did not refer
to a kitchen. In paragraph 5 of the report Mr Haynes commented upon the
planning position:
“5.1 We made verbal enquiries with the Planning Department
and were informed that a change of use from holiday accommodation to
self-contained flats would be considered and was likely to be approved.
5.2 It is recommended that the
applicant should only proceed on the condition that such a change of use is
approved.”
40.
Thirdly, the claimant relied upon a printout dated 13 June 2002 of a web
page from the Rightmove website showing a property in Pevensey Road for sale.
It was not identified in terms as being 101 Pevensey Road. The header above
the (poor quality) photograph stated “£175,000 5 bedroom house”. The only
description given was under the heading “features” and stated “7 bathrooms, 7
reception rooms.”
41.
Fourthly, the claimant referred to a “Security Assessment and Investment
Valuation” of 101 Pevensey Road for a body called “Paragon” about which no
details were given but which appeared to be a mortgage provider. The valuation
was dated 10 July 2003 and referred to an inspection made on the previous day.
It was electronically “signed by an in-house surveyor”. The surveyor was not
identified. The applicant was Mr Haq. The second floor accommodation was
described as :
“Flat 5:- studio
flatlet, shower/WC
Flat 6:- 1 bedroom,
living/kitchenette, shower/WC
Flat 7:- small studio flatlet.”
The report continued:
“It is understood and assumed for
valuation that all of the flats are let on ASTs…”
42.
There was also a “Further Advance Report” for Paragon dated 30 May 2006
prepared by D W Gibbs MRICS of Ashdown Lyons. This stated:
“This property was originally
built as a semi-detached 3-storey house. It has been converted into seven
self-contained units. All of these are currently let on assured shorthold
tenancies…We have not seen the tenancy agreements…It is understood from your
customer [Mr Haq] that consent has been granted by the Local Authority for
division of the building into separate flats that can be sold, each on a long
leasehold basis. We are unable to verify this…”
43.
Finally, the claimant relied upon a valuation of 101 Pevensey Road by Mr
W Dickie dated 22 May 2006 which referred to accommodation comprising 5 studio
flats, 1x1 bedroom flat and 1x2 bedroom flat. The claimant also referred to a
council tax reminder dated 25 May 2010 which described the property as “Second
Floor Rear Fl[at]”. The claimant said that this referred to Flat 7.
44.
The change of use from holiday lets to residential self-contained flats
was granted planning permission in 2002 since when, from the above evidence, Mr
Haq said that Flat 7 had been used as a self-contained flat. He argued that as
this was a change of use the council had four years from the planning breach to
take enforcement action. They had not done so and the breach was therefore
immune as at the valuation date.
45.
The claimant had an owner’s (freehold) interest in the whole of 101 Pevensey Road, including Flat 7, as defined in section 602 of the Housing Act 1985. He
was therefore entitled to compensation under section 584A(1) of the 1985 Act in
respect of the prohibition order. The compensating authority’s reference to
the fact that there was not a separate legal title was not relevant to this
issue.
46.
The compensation payable should be assessed by reference to section 5 of
the Land Compensation Act 1961. The claimant argued that this could be determined
either under rule 2 or, alternatively, as the capitalised loss of rent under
rule 6, relying on the Tribunal’s decision in Pattle v Secretary of State
for Transport [2009] UKUT 141 (LC) where it said at [39]:
“A claim under rule 6 can include
a claim for losses sustained by someone who is not in occupation of the
relevant land but who merely holds the land as an investor…”
47.
The claimant said that the use of Flat 7 was not subject to rule 4 of
section 5 of the 1961 Act because it was not used in a manner that could be
restrained by any court or was contrary to law. The use of the flat was immune
from enforcement action under section 171B of the Town and Country Planning Act
1990 and was “eligible for a Certificate of Lawful Use.” Under section 191(2)
of the 1990 Act the use of Flat 7 was lawful because no enforcement action
could be taken in respect of it since the time for enforcement action had
expired.
48.
The claimant denied the compensating authority’s argument that the
creation of Flat 7 did not involve the creation of a separate dwellinghouse
because it was a house in multiple occupation (HMO) and would therefore only be
immune from enforcement action after 10 years rather than 4 years under section
171B(3) of the 1990 Act. The definition of a HMO was found in section 254 of
the Housing Act 2004. The claimant said that none of the three tests in
section 254(1) (a) to (c) was met and therefore the subject property could not
be classified as a HMO.
49.
Alternatively, the claimant said that under the Town and Country
Planning (Use Classes) (Amendment) (England) Order 2010 the subject property
might qualify as a Class 4 use being “the use of a dwellinghouse by not more
than six residents as a ‘house in multiple occupation’”. He relied upon
Department for Communities and Local Government Circular 08/10 issued in
November 2010 following amendment to the Use Classes Order 1987 (as amended)
and the General Permitted Development Order 1995 (as amended) in April and
October 2010 and which said at paragraph 14:
“…from 1 October 2010 a change of use from a dwellinghouse
(Class C3) to a house in multiple occupation (Class C4) and from a house in
multiple occupation to a dwellinghouse is possible under permitted development
rights and planning applications are not needed.”
The claimant argued that this meant that no planning
permission was required to switch between the two classes and that therefore
there was no unlawful use of Flat 7.
50.
In response to an invitation from the Tribunal to comment on the second
limb of rule 4, namely a manner of use “which is detrimental to the health of
the occupants of the premises or to the public health”, the claimant said that
the identification of a category 1 risk giving rise to the service of a
prohibition order did not establish as a matter of fact that the use of Flat 7
was detrimental to the health of the occupants. Had the compensating authority
believed that there was actual detriment to the occupants’ health they would
not have allowed them to continue living in Flat 7 until the expiry of Ms
Ncube’s tenancy on 1 October 2009. There was no medical or other evidence that
established that the use of Flat 7 was detrimental to the health of its
occupants.
51.
For the second limb of rule 4 to be satisfied there must be evidence of actual
detriment to the occupants and the claimant submitted that:
“…it would be unwise to take the
observations of the respondent [compensating authority] in account (sic) as per
the original Prohibition Order and make findings of fact absent any supporting
evidence (see R (Iran) v Secretary of State [2005] EWCA Civ 982)”
52.
The Court of Appeal in R (Iran) reviewed, inter alia, the points
of law upon which a ground of appeal could be based. The first of these was
making perverse or irrational findings on a matter or matters that were
material to the outcome. Brooke LJ, giving the judgment of the Court, said at
[11]:
“… It is well known that
"perversity" represents a very high hurdle. In Miftari v SSHD
[2005] EWCA Civ 481, the whole court agreed that the word meant what it said:
it was a demanding concept. The majority of the court (Keene and Maurice Kay
LJJ) said that it embraced decisions that were irrational or unreasonable in
the Wednesbury sense (even if there was no wilful or conscious departure
from the rational), but it also included a finding of fact that was wholly
unsupported by the evidence, provided always that this was a finding as to a
material matter.”
The claimant argued that, in the absence of specific medical
evidence, a finding of fact that the use of Flat 7 as a self-contained flat was
detrimental to the health of its occupants would be wholly unsupported by the
evidence of the HHSRS assessment.
53.
Ms Ncube and her daughter were allowed by the council to remain in Flat
7 for in excess of a year which was “an inherent contradiction in the
respondent’s [council’s] position” that the occupation of that flat posed a
category 1 risk under HHSRS. Continued occupation merely increased exposure to
the risks that the council sought to address. If those risks had in fact been
detrimental to the health of the occupants the council would not have allowed
such continued occupation. The HHSRS considered the risks of occupying a flat
with limited space but this did not amount to proof of detriment.
The case for the compensating
authority
54.
In its reply to the claimant’s statement of case dated 1 September 2010
the compensating authority disputed the compensation claim on four grounds:
(i)
Flat 7 was smaller than the council’s prescribed standards for houses in
multiple occupation which stated that “for a one-roomed unit with kitchen
facilities in it the minimum size should be 13 square metres.” The living area
of Flat 7 measured 10 m2 with a shower room/WC of 2m2
making a total of 12m2. It was therefore deemed unsuitable for
occupation.
(ii)
Flat 7 had been assessed as a category 1 hazard under the HHSRS.
(iii)
101 Pevensey Road had planning permission for 6 flats and there was no
permission for the residential use of Flat 7. This meant that the use of Flat
7 was unauthorised and would therefore preclude compensation being payable.
(iv)
There was not a separate title in respect of Flat 7.
55.
Points (iii) and (iv) were supported by a short report by Mr Roger
Morehen MRICS, Principal of Kingston Morehen, Chartered Surveyors.
56.
In further submissions dated 20 April 2011 the compensating authority
explained that Ms Ncube was allowed to remain in occupation of Flat 7 following
the service of the original prohibition order because the authority had a duty
to act reasonably and to assess and balance all the relevant issues. Ms Ncube
was allowed to stay on humanitarian and compassionate grounds until she secured
alternative accommodation. She did not qualify for accommodation as a homeless
person under the Housing Act 2004.
57.
The 2002 planning permission merely lifted the 1975 holiday restriction
from the six flats (including the warden’s flat). It did not grant permission
for a seventh flat. Flat 7 could not be immune from enforcement action unless
and until a certificate of lawfulness was granted under section 191 of the 1990
Act or planning permission for its separate residential use was obtained. No
application for such a certificate had been made. In any event the documents
appended to the claimant’s further submissions were “woefully short” of the
evidence required to support such an application.
58.
The question of whether the limitation of enforcement action under
section 171B of the 1990 Act was four or ten years was:
“a particularly complex area of planning law with regard
to houses in multiple occupation such as 101 Pevensey Road.”
The compensating authority said that the period that applied
depended upon the degree of self-containment and the lack of shared
facilities. It could not be assumed that the four year rule applied to the use
of Flat 7.
59.
In response to the Tribunal’s invitation to the parties to comment on
the second limb of rule 4, the compensating authority said that the principal
reason the prohibition orders were served was because the authority “considered
that the occupation of the flat would be detrimental to the health of the
occupants, mainly by reason of its restricted floorspace”. They also noted
that the claimant did not appeal against either prohibition order.
Consequently any increase in value due to the separate residential use of Flat
7 should not be taken into account.
Conclusions
60.
The compensation in this reference is to be determined in accordance
with section 584A of the Housing Act 1985. For the purposes of that section
two things must be identified:
(i) the valuation date;
(ii)
the diminution in the compulsory purchase value of the owner’s interest
61.
The valuation date in respect of a prohibition order is the date of the
coming into operation of the order. (Reference to the “making of the order” in
section 584A(2)(a) is to a demolition order. This is clear from the wording of
section 584A(1).) The first prohibition order became operative 28 days from
the date on which it was made. It therefore became operative on 21 August
2008.
62.
The first prohibition order was not suspended. In its reply to the
claimant’s statement of case the compensating authority say that it decided not
to enforce the order. Subsequently it decided to revoke the order and to
replace it with another, suspended, prohibition order. In my opinion a
decision not to enforce a prohibition order has no effect upon the valuation
date since the order remains operative. It only ceases to be operative if it
is suspended or revoked.
63.
The first prohibition order was revoked on 13 February 2009 and replaced
on 5 March 2009 by a prohibition order that was suspended until the expiry of
Ms Ncube’s tenancy on 1 October 2009, which is the valuation date for the
second prohibition notice.
64.
Section 584B(1) of the 1985 Act provides that where a payment in respect
of premises has been made under section 584A(1) in connection with a relevant
prohibition order and that order is revoked then the person to whom the payment
was made (assuming that he has the same interest in the premises) shall on
demand repay to the authority the amount of the payment. In this reference no
payment has been made to the claimant by the compensating authority and
therefore no repayment was due upon the revocation of the first prohibition
order. The claimant continued to receive rent for Flat 7 until the second
prohibition order became operative on 1 October 2009.
65.
The claimant argues that the valuation date should be 24 July 2008. In
my opinion that date is incorrect for the reasons given in paragraph 61 above.
I consider that the valuation date for the first prohibition notice is 21
August 2008 but given the subsequent revocation of the first prohibition order,
the provisions of section 584B(1) of the 1985 Act and the fact that the
claimant continued to receive rent, I do not consider that the claimant
suffered any loss as a result of it. His loss arises from the date that the
second prohibition notice became operative and he was prevented from using Flat
7 as a separate dwelling. This is the date adopted by the compensating
authority and also by the claimant in his particulars of claim.
66.
The claimant is therefore entitled to receive compensation comprising
the diminution in the compulsory purchase value of his freehold interest in
Flat 7 which is the result of the coming into operation of the second
prohibition order on 1 October 2009. In my opinion the fact that there is not
a separate title for Flat 7 is irrelevant. It is not disputed that the
claimant is the freehold owner of 101 Pevensey Road of which Flat 7 forms a
part. The compensating authority have given no reasons to justify their
assertion on this point and I reject it.
67.
In assessing the compensation payable regard must be had to the
valuation rules contained in section 5 of the Land Compensation Act 1961. It
is argued by the compensating authority that there will be no diminution in the
compulsory purchase value of Flat 7 due to the operation of rule 4. The
compensating authority say firstly that the separate residential use of Flat 7
did not have planning permission and that it was not immune from enforcement
action for ten years rather than four years; and, secondly, that its use was
detrimental to the health of its occupants. I consider these arguments in
turn.
Rule 4: lawful use
68.
From the planning evidence and the documents produced by the claimant in
support of his assertion that the separate residential use of Flat 7 began more
than four years before the valuation date (see paragraphs 38 to 43 above), I
reach the following conclusions:
i.
The valuation report for the Royal Bank of Scotland dated 12 July 2002
recommended that the applicant should only proceed on the condition that a
change of use from holiday accommodation to self-contained flats was approved.
It is probable that the planning application submitted by the claimant in
September 2002 was made to satisfy that requirement.
ii.
The 2002 planning application refers to six holiday flats. Condition 5
of the 1975 planning permission refers to “the holiday units”. The description
of the development permitted in 1975 refers to “five holiday flatlets and a
warden’s flat”. Therefore reference in the 2002 planning permission “to allow
six holiday flats to be used as six residential self-contained flats” could be
to either of the following situations:
(a)
six holiday flats, including flat 7, but excluding the warden’s flat
(which is nowhere identified in the evidence), giving a total of seven flats;
(b) six holiday
flats, including the warden’s flat but excluding Flat 7, giving a total of six
flats.
69.
On balance I prefer alternative (b) which I consider reflects the actual
situation addressed by the local planning authority. This is supported by the
fact that the September 2002 planning application was only accompanied by a
site plan outlining the curtilage of 101 Pevensey Road and not by detailed
floor plans showing Flat 7 in use as a separate self-contained flat. The 1975
planning application contained floor plans showing a total of six separate
flats (including the warden’s flat - whichever one that was) with Flat 7 then
being shown as a communal bathroom. In the absence of any other information
(and there is none submitted in the evidence) the local planning authority
would have considered the 2002 application by reference to the 1975 plan and
assumed there was a total of six, and not seven, flats in the building.
70.
I am therefore satisfied from the planning evidence that Flat 7 does not
have planning permission for use as a separate residential flat.
71.
I do not consider the claimant’s reliance on Circular 08/10 and the
changes made to the Use Classes Order and the General Permitted Development
Order in April and October 2010 to be relevant in this reference because those
changes were made after the valuation date.
72.
The compensating authority say that, in the absence of a planning permission,
the use of Flat 7 cannot be immune from enforcement action unless and until a
certificate of lawfulness is obtained. I disagree. It is not section 191 of
the 1990 Act (certificates of lawfulness) that grants immunity from enforcement
but section 171B. Such immunity depends upon the period of the breach of
planning control. Section 191 enables a person to establish conclusively, by
certification, that a use is lawful, but the absence of such certification does
not mean, as the compensating authority assert, that that use is unlawful. A
use is lawful if it satisfies section 191(2) which depends, in this reference,
on satisfying section 171B.
73.
The use of Flat 7 as a separate residential unit without planning
permission was a breach of planning control and unlawful ab initio. But for
the purposes of rule 4 if the claimant can show that it has been so used for a
period of four years beginning with the date of the breach then,
notwithstanding the absence of a certificate of lawfulness, that use will be
immune from enforcement action. In Hughes v Doncaster Metropolitan Borough
Council [1991] 1 AC 382 (HoL) Lord Bridge of Harwich, with whom their
Lordships unanimously agreed, said at 395B:
“…it seems to me impossible to treat an established use
under the [Town and Country Planning] Act of 1971 as being ‘contrary to law’
within the meaning of rule 4 of the compensation rules. The right to such a
use is aptly described by Lord Wilberforce in Hartnell v Minister of Housing
and Local Government [1965] AC 1134, 1169D as ‘analogous to a right
established by prescription’ and the legitimate status of the use is now
expressly recognised by the statutory procedure for giving it the imprimatur of
an established use certificate.”
In my opinion this conclusion applies equally to the present
planning regime under the 1990 Act under which established use certificates
have been replaced by certificates of lawfulness of existing use and
development.
74.
The compensating authority do not accept that the relevant period for
the purposes of section 171B is four rather than ten years. They state in
their representations that:
“The application of the period of
immunity to a residential use is a particularly complex area of planning law
particularly with regard to houses in multiple occupation such as 101 Pevensey Road.”
75.
There is no suggestion in the prohibition orders that 101 Pevensey Road, or Flat 7, is a house in multiple occupation. The first prohibition order
states that:
“Under section 20 of the Act, the
Council prohibit the use of the premise for the following purposes; a unit
of self contained accommodation.” (Original emphasis)
76.
In deciding whether section 171B(2) (a four year period of use) or
171B(3) (a ten year period of use) applies in this reference it is necessary to
consider whether there has been a change of use of part of 101 Pevensey Road,
namely Flat 7, to use as a single dwellinghouse (four years) or a house in
multiple occupation (ten years). For Flat 7 to be a “house in multiple
occupation” it must meet one of three tests contained in section 254 of the
Housing Act 2004 which are described in paragraphs 21 to 25 above.
77.
From the evidence I am satisfied that Flat 7 is a self-contained flat
for the purposes of the 2004 Act and therefore it does not meet the standard
test for houses in multiple occupation.
78.
The evidence shows that the only occupants of Flat 7 at all material
times were Ms Ncube and her daughter. In my opinion the flat was occupied by
persons forming a single household and therefore Flat 7 does not meet the
self-contained test.
79.
The final test is the “converted building test”. This test requires,
inter alia, that the part of the building concerned does not consist of a
self-contained flat and is occupied by persons who do not form a single household.
For the reasons stated above neither of these criteria is satisfied and
therefore Flat 7 does not meet the converted building test.
80.
In my opinion Flat 7 is not a house in multiple occupation but is a
single dwellinghouse. The change of use of part of 101 Pevensey Road to the
self-contained Flat 7 is therefore subject to the four year rule under section
171B(2) of the 1990 Act.
81.
The key issue is whether the claimant has shown that the use of Flat 7
as a separate self-contained flat is immune from enforcement action. There has
been no application for a lawful development certificate (LDC) and the matter
has not been considered formally by the local planning authority. The
compensating authority say that the claimant’s evidence on this point is “woefully
short” of that necessary to support such an application and to discharge the
onus of proof placed on the applicant in these matters. That onus of proof is
described in Annex 8 of Department of the Environment Circular 10/97 which
states at paragraph 8.12 that “The onus of proof in a LDC application is firmly
on the applicant.” The circular continues at paragraph 8.15:
“If the LPA have no evidence of
their own, or from others, to contradict or otherwise make the applicant’s
version of events less than probable, there is no good reason to refuse the
application, provided the applicant’s evidence alone is sufficiently precise
and unambiguous to justify the grant of a certificate ‘on the balance of
probability.’”
82.
In this reference it is sufficient for the claimant to show, on the
balance of probability, that the use of Flat 7 as a self-contained unit
commenced four years before the valuation date, namely on or before 1 October
2005.
83.
The compensating authority’s only evidence on the point is that they
inspected Flat 7 on 23 April 2008 at which time it was in occupation as a
self-contained flat, as evidenced by the subsequent prohibition order served on
24 July 2008.
84.
In my opinion the evidence produced by the claimant to support his
assertion that Flat 7 was used as a separate self-contained flat as early as
2002 while not being entirely consistent in the respects to which I have
referred above in paragraphs 38 to 43 is nevertheless sufficiently precise and
unambiguous to establish such a use on the balance of probabilities. The
compensating authority make no attempt to consider such evidence objectively,
dismissing it summarily and without explanation. I do not find that approach
helpful.
85.
I am therefore satisfied that the uninterrupted use of Flat 7 as a self-contained
flat had commenced by 1 October 2005. For the avoidance of doubt, in the event
that I am wrong that the valuation date in this reference should be 1 October
2005 and that instead it should be 21 August 2008 (the date when the first
prohibition order became operative), I remain satisfied on the balance of
probabilities that the separate use of Flat 7 commenced before 21 August 2004.
The value of the land has not been increased by reason of the use of the
premises in a manner which could be restrained by any court, or is contrary to
law under the first limb of rule 4 of section 5 of the Land Compensation Act
1961.
Rule 4: use detrimental to
health
86.
I turn next to the second limb of rule 4 under which any increase in the
value of the land by reason of the use of any premises thereon in a manner
which is detrimental to the health of the occupants of the premises shall not
be taken into account (detriment to the public health is not relevant in this
reference).
87.
The crux of this issue is the meaning of the adjective “detrimental” in
rule 4. The first use of the word in this context is in section 2(4) of the
Acquisition of Land (Assessment of Compensation) Act 1919 which introduced the
six rules of valuation. The wording of rule 4 of the 1919 Act is identical to
that of the 1961 Act except that it refers to “inmates” instead of
“occupants”. The rule has otherwise remained unchanged for over 90 years. The
first limb of rule 4, dealing with lawful use, has been the subject of scrutiny
by the courts but I can find no relevant authority that has considered the
interpretation of the word “detrimental” in the second limb of that rule.
88.
There are two possible reasons for the lack of previous decisions on
this issue in the context of residential property. Firstly, rule 4 refers to
an increase in the value of land “by reason of the use [of] any premises… in a
manner which… is detrimental to the health of the occupants…” The manner of
use of premises means the way in which they are used and suggests an activity
on, rather than a condition of, the premises. Detrimental conditions, such as
lack of repair, dampness, poor ventilation, inadequate heating etc will
decrease, rather than increase, the value of a property and are therefore very
unlikely to appear in any reported case of a compensation dispute involving
rule 4. The only detrimental manner of use that is likely lead to an increase
in the value of premises is that involving overcrowding, where the owner tries
to maximise value by renting out as much accommodation as possible to as many
persons as possible. It is crowding and lack of space which are in issue in
this reference.
89.
Secondly, before the Housing Act 2004, which replaced the Housing
Fitness Standard with the HHSRS, housing legislation had focussed on the
identification of houses which were unfit for human habitation. Until March
1990, when the Housing and Local Government Act 1989 introduced the current
section 584A into the Housing Act 1985 (see paragraph 19 above), compensation
in respect of unfit housing was based upon the value of the property as a
cleared site available for development in accordance with the requirements of
the building byelaws. Historically section 2 rule 4 of the 1919 Act and
latterly section 5 rule 4 of the 1961 Act were not relevant to the assessment
of compensation for the compulsory acquisition of unfit housing.
90.
In determining whether premises were unfit for human habitation under
the Housing Act 1985 regard was had “to their condition” in respect of nine
defined matters. (This definition was adopted from the Housing Act 1957,
although “internal arrangement” was added as a ninth condition under the
Housing Act 1969.) Overcrowding was not one of the defined matters and was
dealt with separately under Part X of the 1985 Act. The definition of
overcrowding was based upon the contravention of one or both of two standards;
the room standard and the space standard (sections 325 and 326 of the 1985 Act
respectively).
91.
Under the HHSRS introduced in 2004 “crowding and space” was included as
one of 29 hazards, which also included the nine conditions specified under the
1985 Act (although not always by the same name). But Part X of the 1985 Act
remains in force so that local housing authorities have a choice of whether to
deal with overcrowding under the HHSRS or under the 1985 Act. The HHSRS
Enforcement Guidance states at paragraph 4.25:
“Authorities are advised, as a first step, to assess the
health and safety implications of overcrowding and to consider the
appropriateness of action under Part 1 of the [2004] Act [Housing Conditions].
Such action would need to be based on the evidence of the harmful impact of
overcrowding in relation to the household’s needs. A wide range of factors is
relevant to the space and crowding hazard, including the number, sizes and
layout of rooms. If authorities choose to use their Part 1 powers it will not
normally be appropriate to make parallel use of the Part 10 [overcrowding]
provisions [of the Housing Act 1985]”
In this reference the compensating authority dealt with the
crowding and space issue under the HHSRS and there is no evidence about whether
Flat 7 was overcrowded for the purposes of Part X of the 1985 Act.
92.
There is no definition of the word “detrimental” as it appears in the
1919 Act or the 1961 Act. I have therefore looked at public health and housing
legislation for guidance as to its meaning. In doing so I have also considered
its synonym “prejudicial”.
93.
Prior to 1936 public health legislation referred to “injurious to
health”, eg the Public Health Act 1875 sections 41, 44 and 91. In the Public
Health Act 1936 the expression “prejudicial to health” is first used and is
defined under section 343 as meaning “injurious, or likely to cause injury, to
health”. The expression is used, inter alia, in section 268(2) which states:
“…a tent, van, shed or similar structure used for human
habitation -
(a)
which is in such a state, or so overcrowded, as to be prejudicial to the
health of the inmates; or
(b)
the use of which, by reason of the absence of proper sanitary
accommodation or otherwise, gives rise, whether on the site or on other land,
to a nuisance or to conditions prejudicial to health,
…”
In Lumley’s Public Health, Volume
1 (eleventh edition) footnote (i) to section 268(2)(b) explains the significance
of the change in wording to “prejudicial” as follows:
“the change from “injurious” to “prejudicial” throughout
this Act does not seem, in view of the definition in s343…, to involve any
substantial change of meaning, apart from relieving the local authority of the
need for showing that either a nuisance or an injury to health has actually
arisen.”
This definition of “prejudicial” was retained in subsequent
public health legislation, for instance in the Public Health Act 1961 where it
is specifically incorporated in section 1(4). The word “detrimental” also
appears in that Act, for instance in sections 27 and 34 where reference is made
to “seriously detrimental to the amenities of the neighbourhood”. No
definition of the word is given.
94.
The compensating authority relies upon the evidence of potential harm
that results from the HHSRS assessment undertaken under the 2004 Act. Applying
this procedure to Flat 7 involves the assessment of the likelihood over the
next 12 months that exposure to the hazard of crowding and space would result
in harm to the actual occupants. “Likelihood” is defined as “the probability
of an occurrence that could cause harm” (paragraph 2.19 of the Enforcement
Guidance). It is then necessary to identify which of the four classes of harm
contained in Schedule 2 to the 2005 Regulations the occupants are most likely
to suffer. Each class of harm is attributed a percentage. These summate to
100% and represent the “spread of harm”. Each class of harm is also given a
prescribed weight according to its seriousness and this is then multiplied by
the likelihood of the occurrence and the outcome expressed as a percentage.
The products of these calculations (one for each of the four classes of harm)
are summated to give the hazard score.
95.
The HHSRS system is a probabilistic process and does not assess actual
harm. Note 57 of the Explanatory Notes to the 2004 Act states:
“The [HHSRS] system relates poor housing conditions to the
kinds of harm attributable to such conditions – it does not try to assess a
specific health outcome in relation to the current occupant.”
In applying the HHSRS to Flat 7 the compensating authority
were therefore assessing the risk, but not a specific health outcome, to the
health and safety of Ms Ncube and her daughter.
96.
The higher the hazard score under HHSRS the greater the risk of harm
arising from the identified deficiency (in this case crowding and lack of
space). But that risk is considered over a period of 12 months from the date
of inspection and not at any particular date. The probabilistic nature of the
HHSRS system does allow for a likelihood of an occurrence to be assessed as a
mathematical certainty, i.e. where that likelihood is greater than a 1 in 1.5
chance the representative scale point is taken as 1. But that only means that
it is certain that the occupants will be exposed to the hazard over the next 12
months and that harm will definitely occur. It does not mean that such harm is
certain to occur on any given day during that period.
97.
No details are given of how the compensating authority calculated the
hazard score and they have not produced their inspector’s report (no
application for its disclosure having been made by the claimant). All that is
known is that the hazard is said to fall within Band A of Table 3 to the 2005
Regulations. This is the highest hazard band and has a numerical score range
of 5,000 plus. To put this into context the lowest numerical score that would
place a hazard within category 1 (requiring mandatory enforcement action by the
local housing authority) is 1,000. Annex D of the HHSRS Operating Guidance
gives the national statistical average hazard score for each of the 29
identified categories of hazard. For flats built before 1920 the average
numerical score in respect of crowding and space is 33 (Band H).
98.
The HHSRS, introduced by the 2004 Act, is the legislative system for
assessing the condition of residential premises and for enforcing housing
standards in respect of them. It is an evidence based system requiring
inspection of the premises. The assessment of hazards depends upon the
subjective, but informed, opinion of the inspector. The unchallenged
conclusion of the inspection in this reference was that the hazard of space and
crowding constituted a Band A hazard to the occupants of Flat 7. Band A is
described in the HHSRS Operating Guidance as “the most dangerous” of the hazard
bands, since the higher the score the greater the risk.
99.
In my opinion the word “detrimental” as it appears in rule 4 of both the
1919 and 1961 Acts should be interpreted in the same way as the word
“prejudicial” is defined in the 1936 Act, so as to include the likelihood of
harm as well as actual harm. “Prejudicial” (actual and potential injury)
includes but goes beyond the meaning of the word “injurious” (actual injury).
The word “detrimental” applies appropriately to the current situation where
there is a particularly high risk that the use of the property will cause
detriment to health over time. It is not necessary in order for a manner of
use to be detrimental under rule 4 for it to have caused actual detriment at
the valuation date. The longer the use, and the more protracted the exposure
to the potentially harmful effects of a lack of space and crowding, the more
likely actual detriment becomes, but it is an insidious process and the use
does not become detrimental only when harm has been done. This distinction is
recognised in paragraph 3.04 of the HHSRS Operating Guidance when considering
the formula used to evaluate numerical hazard scores:
“It is this approach which enables
hazards which have a slow and insidious effect to be compared with ones where
the effect is relatively instantaneous; and enable hazards which may result in
physical injury to be compared with ones which could cause illness or affect
mental health.”
100.
In my opinion specific evidence of harm to the occupants of Flat 7 is
not a prerequisite to the application of the second limb of rule 4 and I see no
reason in principle why the evidence obtained under the HHSRS procedure should
not be considered when determining whether the manner of use of the premises is
detrimental to the health of the occupants for the purposes of that rule. I am
satisfied that the assessment of the use of Flat 7 as a category 1 (Band A)
hazard under HHSRS, requiring mandatory enforcement action by the local housing
authority, is properly regarded as prima facie evidence that it is a manner of
use that is detrimental to the health of the occupants for the purposes of rule
4. That evidence was not challenged by the claimant on appeal and the claimant
has produced no evidence to suggest that the compensating authority were wrong
to determine that crowding and space was a category 1 hazard. I therefore
reject the claimant’s argument that to find the manner of use of Flat 7 to be
detrimental would be wholly unsupported by the evidence.
101.
The claimant also argues that it was inconsistent for the compensating
authority to assess the separate use of Flat 7 as a category 1 hazard and then
to revoke the first prohibition order and suspend the second one. Section
25(2) of the 2004 Act gives discretion to a local housing authority to revoke
an order made under section 20 where they consider that there are any special
circumstances making it appropriate to review the order. Paragraph 5.19 of the
HHSRS Enforcement Guidance states that such revocation can apply to a category
1 hazard. The compensating authority explained that such circumstances existed
in this case (see paragraph 56 above).
102.
Similarly, under section 23 of the 2004 Act, a prohibition order may
be suspended until the occurrence of an event specified in the order including,
under section 23(2), suspension until “a person of a particular
description…ceases to occupy any premises.” The Enforcement Guidance says in
paragraph 5.26 that for category 1 hazards the authority:
“will need to consider very carefully whether a suspended
notice is the appropriate way of responding.”
The compensating authority were satisfied that the category 1
hazard did not involve an imminent risk of serious harm to the health and
safety of any of the occupants of Flat 7 and consequently it was not necessary
for them to make an emergency prohibition order.
103.
I consider that the actions of the compensating authority were not
inconsistent with their assessment of the use of Flat 7 as a self-contained
flat as a category 1 hazard.
104.
For the reasons I give in paragraphs 88 to 89 above, I think it unlikely
that there will be many (if any) references involving rule 4 where the service
of a prohibition order does not include the assessment of crowding and space
as a hazard. Where such a hazard exists the influence of that assessment on
the application of rule 4 must be a matter of fact and evidence in each case.
In the present reference I have placed weight upon the compensating authority’s
assessment of that hazard in the highest (“most dangerous”) category and the
fact that it was not challenged on appeal. Those circumstances are unlikely to
apply in every case.
105.
I conclude that the claim for compensation in this case is solely based
upon an increase in the value of land which is due to the use of Flat 7 as a
separate self-contained flat. That use was detrimental to the health of the
occupants of that flat and, under rule 4, the increase in value shall not be
taken into account. I therefore determine that no compensation shall be paid.
106.
Under Direction 12.8 of the Upper Tribunal (Lands Chamber) Practice
Directions where proceedings are determined in accordance with the written
representations procedure, costs will only be awarded if there has been an
unreasonable failure on the part of the claimant to accept an offer to settle,
or if either party has behaved otherwise unreasonably, or the circumstances are
in some other respect exceptional. None of these circumstances apply in this
reference and I therefore make no order as to costs.
Dated
10 October 2011
A J Trott FRICS
