[2023] UKUT 292 (LC)

Fecha: 15-Dic-2023

Conclusions

Conclusion

100.

For these reasons I allow the appeal and set aside the financial penalty notice.

101.

If the Council is of the view that category 1 hazards still exist in the building, despite the improvement notice having been complied with to the extent that it has now been, it will remain under a duty to take enforcement action. How it chooses to comply with that duty is a matter for it but it may wish to consider whether further improvement notices addressed to the leaseholders, so far as the common parts are concerned, and to the leaseholder of Flat 2, as far as the fire alarm in his flat is concerned, would be appropriate steps. In that connection it may wish to consider the matters identified in paragraph 16(3), Schedule 13A, 2004 Act (see paragraph 18 above) and have regard to the fact that the leaseholders are entitled to possession of their own flats which they have covenanted to repair; they control access to their flats and can prevent work being done within them; they have the use of the common parts, which they have covenanted not to obstruct; items stored in the common parts belong to them; their own safety is put at risk by any remaining hazards and remediation is primarily for their benefit; it is in their interest for the service charge not to be inflated by the cost of regular inspections or expensive litigation.

Martin Rodger KC,

Deputy Chamber President

15 December 2023

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.