Part 3 of the Housing Act 2004 (the 2004 Act) enables local authorities to subject certain areas that experience low housing demand or antisocial behaviour to selective licensing. A landlord or managing agent commits an offence if he has control of or manages a house which is required to be licensed, but is not so licensed.
Section 90(1) of the 2004 Act empowers local authorities to attach conditions that it deems appropriate “for regulating the management, use or occupation of the house concerned”.
Part 2 of the 2004 Act concerns the licensing of houses in multiple occupation (HMOs). Section 67 of the 2004 Act permits a local authority to impose conditions in respect of licences for HMOs. Specifically, section 67(1) allows conditions to be imposed for regulating the condition of HMOs as well as regulating the “the management, use or occupation of the house concerned”. Further, under section 67(2)(f) a condition can be imposed requiring a landlord or managing agent to attend training courses in relation to any applicable code of practice approved by a local authority pursuant to section 233 of the 2004 Act.
In Berg v Burnley Borough Council [2020] UKUT 91 (LC) the appellant landlord argued that Burnley Council did not have authority under section 90 of the 2004 Act to impose a condition requiring him or his managing agent to attend a Landlord Development Day covering “how to manage tenancies” or periodic property management training courses.
The landlord argued that section 67 of the 2004 Act deliberately referred to training courses, whereas section 90 did not. Relying on Brown v Hyndburn Borough Council [2018] EWCA Civ 242, [2018] PLSCS 33, the landlord argued that differences in wording between those sections were deliberate and determinative of the scope of Burnley Council’s power to impose conditions under both licensing schemes. The Upper Tribunal (Lands Chamber) (UT) agreed. The landlord went on to argue that parliament could not have intended local authorities to rely on section 90 of the 2004 Act to require landlords to attend training courses. The UT disagreed that this conclusion followed from Brown.
Brown specifically concerned whether section 90 of the 2004 Act permitted Hyndburn Borough Council to impose conditions as to the provision of a carbon monoxide detector and a valid electrical installation condition report. The Court of Appeal held that section 90 did not allow for conditions to be imposed in respect of such contents and condition of the property.
The UT noted that Brown highlighted the difference between the power to impose conditions relating to the contents and condition of a property in section 67 of the 2004 Act and the more constrained ability under section 90. Yet both sections enabled conditions to be imposed in relation to “the management, use and occupation of the property”. The training condition imposed by Burnley Council related specifically to the “management” of the property. Further, such a condition was neither disproportionate or beyond the scope of conditions envisaged by parliament under section 90 of the 2004 Act.
Elizabeth Dwomoh is a barrister at Lamb Chambers
