[2024] UKUT 218 (LC)

This appeal is about an improvement notice served by a local housing authority under section 12, Housing Act 2004 (the 2004 Act). It raises the issue of how a decision maker (an authority or a tribunal exercising the same powers on an appeal) should proceed where because of uncertainty about the quality or specification of a building component, or for other reasons, there is doubt about whether a hazard exists. Is the decision maker entitled to require the replacement of the component with an alternative of a known specification, thereby removing any risk? Alternatively, is the decision maker entitled to require the owner of the property to commission tests to establish whether a hazard exists and to carry out any remedial work necessary to bring the building up to standard?

The issue arises in the appeal of Mr Bryan Curd against a decision of the First-tier Tribunal, Property Chamber (the FTT) handed down on 10 March 2023. The decision concerned Mr Curd’s challenge to an improvement notice served on him by Liverpool City Council on 21 June 2021. The improvement notice required work to be carried out to a house in multiple occupation which he owned at 55 Kenmare Road (the HMO). The work required by the notice included work to seven fire doors in the HMO, including the replacement of hinges and other door furniture where these did not carry a CE mark. Mr Curd appealed against the notice. When it considered the appeal, the FTT was not satisfied on the evidence what work, if any, was required to remedy any hazard which might exist. It therefore varied the improvement notice, not by omitting the work to the fire doors, but instead by substituting a requirement that Mr Curd obtain a report from an independent fire risk assessor and then follow the assessor’s recommendations.

Mr Curd was granted permission to appeal by the FTT, although he also complied with the varied improvement notice by obtaining a new fire risk assessment (which did not recommend any significant further work). The City Council subsequently sought permission to cross appeal and I directed that its application be dealt with at the hearing of the appeal.

Mr Curd trades in partnership with Mr Barry Curd and the FTT’s decision also dealt with other matters of concern to both partners, but the sole appellant against its decision on the improvement notice is Mr Bryan Curd.

Mr Curd is a chartered surveyor and at the hearing of the appeal he represented himself. The City Council was represented by Mr Brynmor Adams. I am grateful to them both for their helpful submissions.