Using Enforcement Powers to Move Occupiers Out

Under the Housing Act 2004, if the LA considers there is a Category 1 hazard there is a duty to take enforcement action (s. 5), and for a Category 2 hazard there is a power to take enforcement action (s. 7). Assessing the hazard rating is a complex and expert task (see the operating guidance and the addendum for cladding). The enforcement action may take the form of an improvement notice (s. 11) but could alternatively be a prohibition order (s. 20). Under the improvement notice, the LA specifies remedial action which is to be taken (ss. 11, 13); a prohibition order will impose prohibitions on use of the property and must also explain what remedial action would result in the order being revoked (ss. 20, 21, 22). A prohibition order generally becomes operative 28 days after service of the notice, unless it is suspended or appealed (s. 24). For category 1 hazards where there is an ‘imminent risk of serious harm to the health or safety of any of the occupiers’ it is also possible for the LA itself to take emergency remedial action (s. 40, and recover expenses, s. 42, as discussed briefly here) or serve an emergency prohibition order that takes ‘immediate effect’ (s. 43). Reasons have to be given for the action taken (s. 8).

In April 2019, there were press stories (here and here) of Liverpool City Council serving a prohibition order in relation to a development in Fox St, Liverpool. An appeal against this notice has now been heard by the First Tier Tribunal (Property Chamber), in which it was argued that in view of progress being made onsite to remedy the problems identified, it should be downgraded to an improvement notice. The FTT disagreed and confirmed the Prohibition order.

The Fox Street Village development contains five blocks, the maximum height being 7 storeys. Most of the blocks are new build and one block is a converted old warehouse. The site was not fully completed when, on 17 April 2019, a Housing Act prohibition notice was served in respect of two of the five blocks (Blocks C and E, para 15). One news report states that inspection was not required as the blocks are under 18m (although this would be surprising for 7 storeys) but that Liverpool CC nonetheless chose to inspect. Additional to the fire safety issues, planning enforcement notices were also served in relation to the whole 400-apartment development. The first flats were occupied in 2015. The majority had been sold to investors on long leaseholds, many of whom were overseas investors subletting to students. Some units were owner-occupied. At the time of the FTT site inspection, work to risers, fire doors, and ancillary fire equipment was being carried out on Block B (not one of the blocks covered by the prohibition notice).

When the problem came to light, waking watch was immediately put in place and paid for by Liverpool CC (para 35) (at the expense of taxpayers). The press reports that the ‘external wall system is incomplete’, ACM cladding is poorly fitted and there are holes in the panels and gaps in the timber joints, there is no evidence of cavity barriers to stop fire spread, and some fire doors have been compromised. Poor management of the site also fed into the high hazard score rating: 

The Order included:

The likelihood of the occurrence has been adjusted to take account of the poor construction quality, the ease with which the building can be accessed, signs of regular smoking around the immediate perimeter of the building and the lack of confidence in the ability of the building owner to provide and manage an ongoing waking watch programme.

The reasons accompanying the order state that although the hazard was serious there was not an imminent risk so as to require emergency measures, but an improvement notice was not appropriate because the poor structural conditions mean that the risk of harm to occupiers will be increased if they are present while works are done.

The Mayor of Liverpool has accused the de-regulation agenda as eroding responsibility and accountability, enabling poor construction with no effective oversight:

Who can report the approved inspector? Only the developer who appointed them!  To add insult to injury, the Local Authority’s Building Control team cannot intervene without a referral from the Approved Inspector themselves.

When served, the notice said that the prohibition order would come into effect on 13^th May 2019 and all residents would have to move out (but presumably its operation was suspended pending the appeal to the FTT). At the time of the FTT hearing in mid-July, the students had moved out as the academic year had finished, but around 12 families still lived there.

Following service of the notice, an ‘Investors Association’ was formed to fix the problems, raise the necessary funds, and to pay for a waking watch to ensure occupation can continue during the remedial work – expressing concern that if the site is evacuated, its reputation will become ‘toxic by association’ and may then be left derelict. Presumably it fell to the investors to take action, because they wished to protect their investment, and the freeholders are now in administration (para 27).

It was argued before the Tribunal that, although the prohibition order was initially appropriate, sufficient work had now been done to justify lifting it, and the outstanding works could be required through an improvement notice. The Tribunal did not agree. Work onsite to date had not focused on Blocks C and E, and it was necessary for intrusive inspections of voids to be done to identify all defects. Also, neither cladding removal nor work to compartmentation was yet completed (para 46). There did, therefore, continue to be a ‘serious and substantial risk to occupiers’. The FTT did note that, as Liverpool CC had no obligation to continue supplying the waking watch, this could not affect the hazard rating (para 48) (an intriguing comment seeing as the Government guidance states that interim measures, such as waking watch, should NOT form part of the hazard assessment).  

Alongside the LA enforcement powers, the fire service is also empowered to take action under the Regulatory Reform (Fire Safety) Order 2005, Article 31 (an explanation of the powers is given in a 2012 briefing). Data on the use of these powers is thin. There are online registers both nationally and for the London Fire Brigade but they are difficult to search and provide little information. For example, a notice served for the building first in the list below, Appleton Point, provides little information and no detail as to the defects identified. In each of the following sites it appears that evacuation has been required, through either HA or Fire Service intervention: 

• Appleton Point: a private block in Bradford, initially built for students but now with a range of household types. The defects involve the lack of an alarm system and compartmentation breaches. An enforcement notice was apparently first served in 2016. 120 people were evacuated.
• A building managed by housing association L&Q in Arch Street, Elephant and Castle. This has combustible HPL cladding and there are also concerns about the insulation. It seems that only some of the residents have been forced to move. L&Q have also offered to buy back properties from shared owners and leaseholders.
• A 50-home Catalyst-owned site in South Kilburn. Defects here include ACM cladding, the insulation and fire breaks. It may be 18 months before all tenants will have moved out and work starts. Catalyst is seeking to permanently re-house tenants, as well as offering £6,300 as part of the government’s Home Loss payment. Again, there is an offer to shared owners to buy back.
• A student block, Kingfisher Court, Huddersfield. A prohibition notice was issued by the Fire Service which appears to have required immediate evacuation of around 80 students, probably due to compartmentation failures, although earlier reports also mention problems with the ‘air-gap and insulation’ behind the cladding. Like Fox St, there are also planning defects and the building owners are in administration.

We may expect the pace of enforcement action to quicken as defects continue to emerge, and LAs and the Fire Service become more concerned about the adequacy of interim measures such as the waking watch. For each of these stories there will be huge personal disruption. And it is interesting that in two cases it is student housing that is involved while the freeholders are in administration.

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How to cite this blog post (Harvard style) 

Bright, S. (2019). Using Enforcement Powers to Move Occupiers Out. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/08/using-enforcement-powers-move-occupiers-out (Accessed [date]).