Housing – Selective licensing – Housing Act 2004 – Respondent letting flats in area designated by appellant local authority for selective licensing scheme under Part 3 of 2004 Act – Some flats created without planning permission – Appellants granting licences for one year in respect of those flats in contrast to five-year licences granted for other properties – First-tier substituting five-year licences – Whether permissible to take into account planning status of property when determining application for Part 3 licence – Appeal allowed
The respondent was the landlord of numerous properties in an area which the appellant local authority had designated for the operation of the selective licencing scheme for private sector housing pursuant to Part 3 of the Housing Act 1988. The respondent’s properties included a former warehouse which he had converted, without planning permission, into six flats which he had then let to tenants, and a house converted into six flats, two of which did not have the benefit of planning permission.
The appellants’ designation had been made in the light of their conclusion that the general conditions in section 80(6) of the 2004 Act were satisfied, in that the designated area was experiencing a significant and persistent problem caused by anti-social behaviour, which some private sector landlords were failing to take appropriate action to combat and which the designation would contribute to reducing.
The respondent applied to the appellants for licences for the six flats in the former warehouse. At that stage, the lack of planning permission became apparent. The appellants and the respondents entered into discussions about regularising the planning position. Before that issue had been resolved, the appellants granted a licence for the six flats for a period of one year. That differed from the five-year licences granted for most of the respondent’s properties.
Licences were also granted for the six flats in the converted house but, in respect of the two flats created without the benefit of planning permission, the licence period was again one year rather than five. The appellants indicated that the licence period was to allow time for the planning issues to be resolved.
The respondent appealed to the first-tier tribunal (FTT), under para 31(1)(b) of Schedule 5 to the 2004 Act, contending that planning considerations were not relevant to Part 3 licensing. Allowing the appeal, the FTT decided that the licences should be extended to five years and ordered the appellant to reimburse the respondent’s hearing fees. The appellants appealed.
Held: The appeal was allowed.
1) Part 3 licensing should not be seen as an alternative to the use by a local housing authority of its powers of planning enforcement under the Town and Country Planning Act 1990. However, that did not mean that, where a building had been converted to residential use or an existing residential use had been intensified, in breach of planning control, those circumstances were irrelevant to the decision whether to grant a licence or to its terms.
It was not irrelevant whether a house had been built or occupied in breach of planning control, given the grounds on which the appellants had designated the area for selective licensing. Inappropriate or over-intensive uses of land, especially in a densely populated urban area, were an obvious manifestation of anti-social behaviour in themselves and created conditions in which antisocial behaviour was liable to be a significant problem. Planning control was directed in large measure at ensuring that new or additional uses of land did not have an unacceptably adverse impact on existing users. Where a consideration of that impact had been by-passed, because the house had been built or converted without planning consent, important safeguards against anti-social behaviour would have been evaded. To that extent, the concerns of planning control and the concerns of licensing under Part 3 of the 2004 Act overlapped.
It was therefore legitimate for a local housing authority to have regard to the planning status of a house when deciding whether or not to grant a licence and when considering the terms of a licence. It would be permissible for an authority to refuse to determine an application until they were satisfied that planning permission had been granted or could no longer be required.
While it would be equally permissible to refuse to grant a Part 3 licence, in circumstance where the local authority considered that enforcement action was appropriate, that would make it difficult for a landlord to recover possession of the house and would expose him to prosecution for an offence which he would be unable to avoid by his own actions. The solution adopted by the appellants, of granting a licence for a short period to allow the planning status of the house to be resolved was a rational and pragmatic course which was well within their powers.
Moreover, the landlord’s need for a Part 3 licence provided an opportunity to require that the landlord take the initiative of demonstrating that he did not need, or alternatively was entitled to, planning permission. In such circumstances, it would not be satisfactory instead to place the onus on the local authority to establish a breach of planning control in costly and time-consuming enforcement proceedings. The authority had a discretion over the duration of each licence that they granted and there was no automatic entitlement to a period of five years. Where there were grounds to believe that the applicant required planning permission and did not have it, the grant of a shorter period was a legitimate means of procuring that an unlawful use, which itself might exacerbate anti-social behaviour, was discontinued or regularised.
(2) It was not appropriate simply to restore the original licences without any independent consideration of their terms. The respondent was entitled to a re-determination of his original licence application which took into account all relevant factors. The proper course was to continue the licences until two months after the date of the present decision, which would allow the respondent sufficient time to make new applications and thereby avoid committing an offence by being in charge of unlicensed Part 3 houses, and would also allow the appellants to make a decision on those applications with all of the information now at their disposal.
Ashley Underwood QC (instructed by the legal department of Waltham Forest London Borough Council) appeared for the appellants; the respondent appeared in person.
Sally Dobson, barrister
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