In Brown v Hyndburn Borough Council [2018] EWCA Civ 242 the Court of Appeal decided issues on the licensing of private landlords by local authorities. Hyndburn Borough Council has adopted a selective licensing scheme and as a result, private landlords in their area have to be licensed by them. Mr Brown is one such landlord who along with 346 other local landlords has formed a local representative landlord’s body.
He is challenging two conditions in the licence. It was common ground that the Council includes such conditions in all of its licences and that other authorities follow a similar practice. Although Mr Brown’s properties comply with these conditions given the importance of the issue to landlords, he decided to challenge this practice.
Selective licensing may be adopted where there is either low housing demand or anti-social behaviour in the area. It has been adopted by many Councils and it was one of the measures introduced by the Housing Act 2004 to improve standards in the private rented sector.
A licence will include certain conditions. Some, such as those dealing with gas safety certificates and for the safe supply of electricity (schedule 4 to the Act) must be included; others may be included at the discretion of the Council. Section 90 provides that a licence may include such conditions as the Council ‘consider appropriate for regulating the management, use or occupation of the house concerned’.
A landlord who applies for a licence may challenge decisions on the application. Mr Brown argued that two of the conditions are unlawful as they are not justified under section 90. The first, a condition requiring the landlord to install a carbon monoxide detector; and second, to ensure that the premises are covered by an electrical condition report and if it report something unsatisfactory this is remedied. They do not, in his view, amount to a regulation of the management, use and occupation of the properties and they amount to improvements.
He succeeded in the First-tier Tribunal (‘FTT’) which determined that the Council has no power under the Act to require a landlord to upgrade their properties, or to introduce new equipment or facilities. The FTT concluded that these conditions went beyond regulating the management use or occupation of the dwelling concerned under section 90. It allowed a differently worded condition on carbon monoxide – if a detector is provided written confirmation of who is responsible for it must be given. The FTT determined that the condition on the electrical report should be removed.
However, the Council successfully appealed to the Upper Tribunal which took a different approach to interpreting the legislation. It concluded that the conditions were justified as part of the management of the properties. The UT reinstated the two conditions as they were originally included.
The Court of Appeal allowed the landlord’s appeal and restored the determination made by the FTT. The Court reasoned that the UT did not consider the interpretation of selective licensing in the broader context of the Act which includes (in Part I) new measures to deal with individual properties which are below standard) 0r measures covering ‘houses in multiple occupation’ (in Part 2). Part 3 does not exist for improving the general fabric of housing by imposing licensing conditions that require new equipment or facilities.
James Driscoll is a solicitor and a writer
