Can a local authority vary an active improvement notice under the Housing Act 2004 without agreement in order to alter the required works or timescales?

The short answer is that this is possible only in very limited situations.

The starting point is to underline the importance of the Court of Appeal’s decision in R (Ball) v Hinckley and Bosworth Council [2024] EWCA Civ 433. This made it clear that for mandatory notices (i.e. where there is a duty to serve them once the local authority (LA) is satisfied on the relevant circumstances) and which have a right of appeal attached, LAs will not have an implied power to vary them. If there is a statutory ability to vary them, then it will depend on what the relevant legal provision states. That case also made it clear that the power to withdraw valid notices after they have been served may be very limited, for example, when they have been fully complied with.

The service of improvement notices (INs) under sections 11 and 12 of the Housing Act 2004 (‘the Act’) and prohibition orders under section 25 of the Act are rare examples where revocation or variation is specifically allowed in certain situations. It follows that LAs will need to show that any purported attempt to revoke or vary such notices or orders falls within the limited powers to do so.

Sections 16 and 25 of the Act, which deal with the revocation, etc. of INs and prohibition orders, follow an almost identical structure. Section 16(1) tells us that the LA must revoke the IN when the requirements are complied with. Because of 16(8), this can be done at the request of the recipient but also by the LA without such a request. An LA which refused to revoke such an IN could be challenged by an ombudsman complaint or by judicial review. 

Under section 16(2), an LA has the power to revoke an IN served under section 11 (to deal with a Category 1 hazard) only when there are special circumstances. Importantly, the special circumstances should be recorded in sufficient detail, particularly if the hazard is continuing. In England, this counts as an executive function that must be recorded and published in the way prescribed by the relevant regulations* regardless of whether the decision is made by the executive, individual member of the LA’s cabinet or an officer acting under delegated authority. In respect of section 12 INs (to deal with a Category 2 hazard), the power is broader, reflecting that there is no duty to serve an IN in such circumstances. The same comment about recording the reasons applies, as there is still a possibility of challenge.

Under 16(3), where the IN covers more than one hazard, then 16(1) applies to each element. This means that the only bits that must be revoked are those which have been complied with, and the LA has the power to vary the IN if appropriate. This may not be necessary, depending on how the original notice was worded. The power to vary under 16(3)(b) is therefore limited to an IN which covered more than one hazard and at least one of the hazards cited remains unresolved. This sub-section specifically does not include revocations under 16(2), suggesting that there is no discretion to revoke a multi-hazard IN using that subsection. It would be illogical to argue that an LA has the power to revoke such a notice in its entirety if one or more Category 1 hazards remain.

Under 16(4), two further powers to vary an IN are given. Section 16(4)(a) requires the agreement of the person on whom the notice was served. As written, this does not appear to require the agreement of parties on whom only copies were served, but this point could require litigation to resolve, particularly where the owner is not the main recipient. Much of the confusion I have read about appears to have been caused by 16(4)(b). This power is limited to varying certain details of a suspended IN in respect of when the suspension will end. 

That sub-section needs to be read alongside section 14, which deals with suspensions. At the time of service of the IN, an LA has the discretion to suspend its operation until certain things happen or until a certain date, and the reason needs to be specified on the face of the notice. Section 14 does not give an LA the power to suspend the IN after it has been served. This would itself be a variation that could only be made under the terms of section 16 as described above, so that the power to vary under 16(4)(b) applies solely where the original notice was a suspended one. The only power to vary a single-hazard IN, which was not a suspended one, is with the agreement of the notice recipient. In the case of multi-hazard INs, there is a power to vary on the LA’s own initiative when at least one of the hazards has been dealt with. 

The recipient of the notice has a right of appeal where the LA makes a decision to vary or revoke an IN on its own initiative (see 16(7)).

It has been argued that 16(8) creates a separate free-standing power for an LA to revoke or vary an IN. I do not think this is tenable, as this would make much of the rest of section 16 unnecessary. Courts will not usually interpret legislation in this way – they will look to give meaning to the whole section as enacted. I think this sub-section simply says that for each of the duties and powers as listed, these can be exercised on request or by the LA of its own volition.

I can find no case law setting precedent on these points. It is worth mentioning Curd (t/a Glenwood Property Investments) v Liverpool City Council [2024] UKUT 218 (LC), which dealt with the power of First-tier Tribunals to vary an IN. As tribunals were created by statute, their powers are limited to what the legislation** states they can do. In that case, the Upper Tribunal held that the FTT could not vary an IN without first being satisfied that a hazard existed and had no power to ask for steps to be taken to ascertain this. As the judge pointed out, an LA can serve an IN only if satisfied that a relevant hazard exists.

It is important to stress the issue of the decision-maker having the appropriate delegated power. Just as a simple authorisation to serve an IN does not automatically grant authority for that officer to decide to enforce it, decisions to revoke or vary such a notice once served can only be made by someone with an unambiguous delegated power to do so. 

I was asked at a recent webinar if LAs can vary abatement notices under section 80 of the Environmental Protection Act 1990 to extend the original time allowed to comply. The answer, following the Hinckley and Bosworth case, is no. However, the critical point is that even for mandatory notices, the decision to enforce them by prosecution or works in default is always discretionary. There may be good reasons not to pursue such action, which in practice could amount to extending the time allowed. To avoid successful challenges – the failure to enforce notices is a common ombudsman referral – recording any such decision, noting the reasons for the delay, is important. In my experience, it is often some time after the allowed period has elapsed before any enforcement decision is taken.

*The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 SI 2012/2089, in force from 10/9/2012

**Tribunals, Courts and Enforcement Act 2007, and the Tribunal Procedure (First Tier Tribunals) (Property Chamber) Rules 2013

Resources  

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