One Legal Sept 21 Director 600

Slide background

Upper Tribunal allows appeal by owner over order to demolish damaged house

The Upper Tribunal (Lands Chamber) has overturned an order by the First Tier Tribunal (FTT) that a damaged house must be demolished.

Arun District Council had ordered Peter Bathurst to demolish the Bognor Regis house where he had lived since 1963 after it sustained damage from a burst pipe.

The council said the house was in a dangerous state, but Mr Bathurst argued that he could rectify the damage if allowed time.

The FTT heard from Arun empty homes officer Helen Stevens that she had found hazards that included damaged floors due to rotting and volume of belongings, ceilings collapsed due to water damage, widespread damp and mould and the kitchen ceiling and staircase in the process of collapsing.

At the case management hearing the parties agreed that expert evidence was not required.

The FTT visited the property in November 2018 and later asked Arun to substantiate its view that the property could not be brought back into habitable use at reasonable cost.

Arun sent estimates from a contractor that demolition would cost some £25,000 and removing the hazards and bringing the property to a habitable condition would be £55,000 excluding external repairs, decoration and eradication of vermin.

The council told the FTT: “Mr Bathurst does not appear to recognise the scale of the work involved as demonstrated by his suggestion that the contents need not be cleared and the work carried out by himself and his friends.”

It felt therefore that an improvement notice would be insufficient and only demolition provided a feasible course of action.

Mr Bathurst’s first ground of appeal was procedural fairness because the FTT had invited the expert evidence from Arun about the cost of works without making it clear to him that he too was entitled to provide such evidence.

In Bathurst v Arun District Council (HOUSING - ENFORCEMENT ACTION - demolition order) [2020] UKUT 136 (LC) Tribunal judge Elizabeth Cooke held that this succeeded. She said: “It was not fair for the FTT to depart from that decision [on expert evidence] by inviting one party, but not the other, to provide additional evidence.”

Mr Bathurst also appealed successfully over absence of evidence of his incapacity to do the work.

Judge Cooke said: “The FTT recognised…that the demolition order would be draconian.

“It recognised that it did not have the expert evidence it would expect to justify that order. Yet it confirmed the order on the basis of its view of the appellant’s capacity to comply with an improvement notice; the FTT had not heard live evidence from the appellant about how he would respond to such an order.”

She said it was difficult to see why the FTT did not either indicate that an improvement notice would be appropriate or suspend the demolition order requiring remedial action on a specified timescale.

“Its decision to go straight to the ‘nuclear option’ of demolition was made on inadequate evidence, and accordingly the appellant succeeds,” she said.

Judge Cooke remitted the case to the FTT but adjourned for a year to give Mr Bathurst the opportunity to either make substantial progress in putting the property right or to sell the property to a builder.

Mark Smulian