[2023] UKUT 263 (LC)

Mr Kazi appeals that decision with permission from this Tribunal on two grounds. A third ground, raised after permission on the first two had been given, was heard on a “rolled up” basis along with the first two, on the basis that permission and, if permission was granted, the substantive appeal would be determined together.

All the grounds relate to the amount of the civil penalties imposed, and I therefore bear closely in mind what the Court of Appeal said in in Sutton v Norwich City Council:

“30.

Where the decision of a lower Court or Tribunal involved evaluation or the exercise of a discretion, an appellate Court or Tribunal is not entitled to interfere merely because it might have come to a different conclusion. In G v G (Minors: Custody Appeal) [1985] 1 WLR 647, Lord Fraser said at 652 that an appellate Court should interfere with an exercise of discretion only if it considers that the judge of first instance "has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which reasonable disagreement is possible". …

31.

A Tribunal's decision as to what civil penalty it should impose for either a breach of the 2007 Regulations or failure to comply with an improvement notice involves, as I see it, both evaluation and discretion. An appellate Court/Tribunal is not, accordingly, entitled to overturn a penalty just because it thinks it would have imposed a different one. To interfere, the Court/Tribunal must conclude that the decision under appeal was an unreasonable one or is wrong because of "an identifiable flaw in the judge's reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion".