7 & 9 Hayes Road, Clacton-on-Sea, Essex CO15 1TX CAM/22UN/HNA/2019/0021-0026
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No CAM/22UN/HNA/2019/0021-0026
Between
Lystra DorvalApplicantTendring District CouncilRespondent
Before
Tribunal Judge S EvansMr Gerard Smith MRICS FAAV REVMr Kennedy of Counsel for the ApplicantMr Grant Fenton-Jones, Environmental Health Team Leader for the RespondentDate 5 November 2020Property: 7 & 9 Hayes Road, Clacton-on-Sea, Essex CO15 1TXType of application: Appeal against the imposition of a financial penalty, pursuant to s.249A and Schedule 13A of the Housing Act 2004
[4]The reason for the decision is that the Tribunal had considered and taken into account all of the points now raised by the Applicant, when reaching its original decision.[5]The original Tribunal’s decision was based on the evidence before it and the Applicant has raised no legal arguments in support of the application for permission to appeal.[6]For the benefit of the parties and of the Upper Tribunal (Lands Chamber) (assuming that further application for permission to appeal is made), the Tribunal has set out its comments on the specific points raised by the Applicant in the application for permission to appeal, in the appendix attached. APPENDIX TO THE DECISION REFUSING PERMISSION TO APPEAL For the benefit of the parties and of the Upper Tribunal (Lands Chamber), the Tribunal records below its comments on the grounds of appeal. 3 Specific comments on the grounds of appeal[1]The Tribunal did not find that the Respondent had failed to explain its decision- making process. It found that the Respondent had not recorded it, but that it had done its best to explain the figures arrived at: paragraph 59 of the decision.[2]Whilst the Tribunal was concerned by the Respondent’s emails (paragraph 60 of the decision), it did not find that any bad faith on the Council’s part. The Tribunal was aware that the decision as to penalty was not taken by Mr Fenton-Jones alone. The Tribunal rejected the Applicant’s argument that the appeal should be allowed on such a basis: paragraph 61 of the decision.[3]The Tribunal was obliged to give some deference to the Respondent’s decision, despite the Respondent’s lack of rigour. This was not a case where the Tribunal was entitled to depart from the Policy of the Respondent, and the Tribunal was required to assess harm in the light of the stated severity and harm Tables.[4]The Tribunal notes that at the hearing the Applicant did not advance any case that the levels of harm adopted by the Respondent were flawed. Nor does the Applicant now suggest what category of harm should be substituted in relation to each and every breach proven.[5]The Applicant is wrong to assert that Category 1 in the Harm Factors Table in the Respondent’s Policy is limited to “serious adverse effect or high risk of serious adverse effect”. It continues “Vulnerable people to be taken into account”. The Tribunal considered that many (but not all) of the defects proven presented a high risk of a serious adverse effect on the occupiers who were vulnerable by reason of their social circumstances, as evidenced by PC Southgate.[6]The Tribunal’s assessment of harm was based on its experience and knowledge as an expert Tribunal. It did not place great reliance on the Respondent’s HHSRS Assessment Forms. The Tribunal did not, nor was it required, to conduct its own separate HHSRS assessment. The Tribunal considered the facts of each breach against the text in the Tables in the Policy, in the light of the evidence as a whole.[7]Pursuant to the above reasons, the Tribunal refuses to exercise its discretion under rule 6(o) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rule 2013 to suspend the effect of the Tribunal’s decision dated 5 November 2020. Any such application should be made to the Upper Tribunal, where appropriate. Name: Tribunal Judge S Evans Date: 4 January 2021