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Requiring Flood Prevention when Issuing Improvement Notices

19th June 2019 RIAMS

In the latest digest written by Steve Battersby for the Housing Professionals forum, involving Eden District Council. This case concerned three properties owned by Mr Bailey that had all been extensively damaged by flooding during Storm Desmond in 2015. In this case, the Tribunal was required to consider whether flooding and risk of future flooding was something that could legitimately be assessed under the HHSRS. They were also required to consider an extension on time limits requested by the applicant.

Eden District Council had issued three Improvement Notices for three unoccupied properties that had been affected by extensive flooding as a result of Storm Desmond in 2015. The works identified in the Notices were deficiencies that were mainly the result of the flooding. Each Notice required the applicant to commence the remedial works no later than 11 June 2018 and to complete them by 30 September 2018.

The applicant, Mr Bailey, requested more time to complete the works on 28 September and there was no evidence of a response by the Council to this email but notices of refusal to vary were issued on 9 October 2018 as “reasonable progress has not been made”.

In contesting this decision, the applicant Mr Bailey gave a number of reasons why the extension should be granted and in considering this point, the Tribunal decided that as these properties were occupied, the operation of each Notice should be suspended until one year had passed from the decision or the property was occupied again (a ‘trigger event’), whichever event happened sooner.

In considering whether flood protections works could be specified in an improvement notice, the Tribunal considered para 1.15 of the Operating Guidance and the principle that the dwelling should provide adequate protection from all potential hazards prevailing in the local external environment. Reference was also made to para 4.11 and the need for a dwelling to satisfy the basic needs for everyday life.

A report by Cumbria County Council and the Environment Agency in 2017 was also considered. That report highlighted that the River Eden can be fuelled by winter snow melt with rapid rise and fall in river levels and that Appleby has a long history of flooding. The full judgment refers to several of the major floods over the years that have affected these properties or others nearby. 176 properties were flooded as a result of Storm Desmond in 2015 and of that number, some properties were flooded three times. In light of this, the Tribunal had no difficulty in accepting the Council’s assessment that there was a significant risk of flooding.

To read the full summary of this case, including a more extensive consideration of the Tribunals reasons for allowing Flooding to be considered, click here.