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R Peter Gaskin v Richmond Upon Thames London Borough Council

Judgment Public and Third Sector Law Reports Cited authorities 19 Cited in 7 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeLord Justice Hickinbottom
Judgment Date31 July 2018
Neutral Citation[2018] EWHC 1996 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2448/2016
Date31 July 2018
Categories

[2018] EWHC 1996 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hickinbottom

Mr Justice Picken

and

Mr Justice Fraser

Case No: CO/2448/2016

Between:
The Queen on the Application of Peter Gaskin
Claimant
and
(1) Richmond Upon Thames London Borough Council
(2) Lavender Hill & Wimbledon Magistrates' Court
Defendants

Jonathan Manning and Alexander Campbell (instructed by way of Direct Access) for the Claimant

Simon Butler and Jake Richards (instructed by South London Legal Partnership) for the First Defendant

The Second Defendant neither appearing nor being represented

Hearing date: 3 July 2018

Lord Justice Hickinbottom

Introduction

1

This claim gives rise to a narrow but important issue: does the owner of a house in multiple occupation (“HMO”) provide a “service” for the purposes of Directive 2006/123/EC of the European Parliament and Council of 12 December 2006 on services in the internal market (“the Services Directive”)?

2

The issue arises in the context of criminal proceedings brought in the Second Defendant magistrates' court by the First Defendant local authority (“the Council”) against the Claimant Peter Gaskin (“Mr Gaskin”) for, amongst other things, having control of or managing an unlicensed HMO. Part 2 of the Housing Act 2004 (“the 2004 Act”) requires HMOs to be licensed by the relevant local authority. One reason why Mr Gaskin's HMO is unlicensed is because he refuses to pay the Council's application fee for renewal of his HMO licence which, he contends, is a charge levied by the Council in contravention of the Services Directive. If, however, he is not providing a “service”, as the Council contends, then the relevant provision of the Services Directive does not apply.

3

The hearing before us was concerned solely with the lawfulness of the fee demanded for the renewed licence by the Council from Mr Gaskin under EU law. Other grounds of judicial review under domestic law were considered by a different constitution of this court (Bean LJ and Carr J), following a hearing on 29 November 2017. Their relevant findings are at paragraph 31 below, and their full judgment is at [2017] EWHC 3234 (Admin). That court adjourned the point the subject of this judgment to enable notice to be given to the Crown, so that a Minister of State or Law Officer could seek to be joined as a party, if so advised. Notice was given, but the Crown did not seek to become involved; and therefore the hearing before us was argued solely on behalf of Mr Gaskin and the Council. Mr Gaskin seeks various declarations as to the correct position in law, for the guidance of the magistrates' court. In the meantime, the criminal proceedings against him are stayed.

4

Before us, Jonathan Manning and Alexander Campbell, both of Counsel, appeared for Mr Gaskin; and Simon Butler and Jake Richards, also both of Counsel, appeared for the Council. In the usual way, the Second Defendant court neither appeared nor was represented.

5

This is the judgment of the court to which each member of the constitution has contributed.

Part 2 of the Housing Act 2004

6

Part 2 (i.e. sections 55–78) of the 2004 Act concerns “Licensing of Houses in Multiple Occupation”, which covers not only the licensing procedure including variation and revocation, but also (at sections 72–75) enforcement.

7

By sections 55(2) and (3), that part of the Act applies to any HMO in a local authority's district which falls within any description as prescribed by the appropriate national authority, i.e. for England, the Secretary of State. Article 3 of the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 (SI 2006 No 371) defines HMO for these purposes as follows:

“(1) An HMO is of a prescribed description for the purpose of section 55(2)(a) of the Act where it satisfies the conditions described in paragraph (2).

(2) The conditions referred to in paragraph (1) are that –

(a) the HMO or any part of it comprises three storeys or more;

(b) it is occupied by five or more persons; and

(c) it is occupied by persons living in two or more single households.”

Although not relevant to this claim, for the sake of completeness, we should say that a new description has been prescribed with effect from 1 October 2018 which omits the reference to three or more storeys (see Article 4 of the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 ( SI 2018 No 221)).

8

Section 61(1) of the 2004 Act provides that, subject to exceptions not relevant to this claim:

“Every HMO to which this Part applies must be licensed under this Part…”

9

Sections 63 and 64 deal with procedure for licences, as follows:

“ 63 Applications for Licences

(1) An application for a licence must be made to the local housing authority.

(2) The application must be made in accordance with such requirements as the authority may specify.

(3) The authority may, in particular, require the application to be accompanied by a fee fixed by the authority.

(4) The power of the authority to specify requirements under this section is subject to any regulations made under subsection (5).

(5) The appropriate national authority may by regulations make provision about the making of applications under this section.

(6) Such regulations may, in particular –

…

(d) specify the maximum fees which are to be charged (whether by specifying amounts or methods for calculating amounts);

(e) specify cases in which no fees are to be charged or fees are to be refunded.

(7) When fixing fees under this section, the local housing authority may (subject to any regulations made under subsection (5)) take into account –

(a) all costs incurred by the authority in carrying out their functions under this Part, and

(b) all costs incurred by them in carrying out their functions under Chapter 1 of Part 4 in relation to HMOs (so far as they are not recoverable under or by virtue of any provision of that Chapter).

64 Grant or refusal of licence

(1) Where an application in respect of an HMO is made to the local housing authority under section 63, the authority must either –

(a) grant a licence in accordance with subsection (2), or

(b) refuse to grant a licence.

(2) If the authority are satisfied as to the matters mentioned in subsection (3), they may grant a licence…

The matters are –

(a) that the house is reasonably suitable for occupation by not more than the maximum number of households or persons mentioned in subsection (4) or that it can be made so suitable by the imposition of conditions under section 67;

(b) that the proposed licence holder –

(i) is a fit and proper person to be the licence holder, and

(ii) is, out of all the persons reasonably available to be the licence holder in respect of the house, the most appropriate person to be the licence holder;

(c) that the proposed manager of the house is either –

(i) the person having control of the house, or

(ii) a person who is an agent or employee of the person having control of the house;

(d) that the proposed manager of the house is a fit and proper person to be the manager of the house; and

(e) that the proposed management arrangements for the house are otherwise satisfactory.”

10

Section 63(3) provides that an authority may require the application to be accompanied by a fee fixed by the authority; and section 63(7) stipulates that, when fixing the fee, the authority may (subject to regulations made under section 63(5)) take into account the costs incurred by the local authority in carrying out its functions under Part 2 (including enforcement) and Chapter 1 of Part 4 of the Act (which concerns management orders).

11

For these purposes, the relevant regulations are the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006 No 373) as amended, with effect from 10 September 2012, by the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Amendment) (England) Regulations 2012 (SI 2012 No 2111)). Regulation 7 of, and paragraph 2 of Schedule 2 to, the 2006 Regulations set out the mandated form of application and the information that is required to be provided by the applicant. That information is focused upon the dwelling itself. It does not include any information about the occupiers of the HMO.

12

Where an application for an HMO is made, the relevant local authority must either grant or refuse it (section 64(1)). It may only grant a licence if it is satisfied as to the matters set out in section 64(3), including that both the proposed licence holder and the proposed manager of the house are fit and proper persons, and that the proposed manager is either the person having control of the house, or is the agent or employee of the person having control of the house.

13

Section 72 provides for several offences in relation to licensing of HMOs, including, as section 72(1):

“A person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not licensed.”

14

Finally, to complete the domestic statutory position, where a local authority is performing a statutory function and considers that it ought to have information connected with any land, section 16(1) of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”) gives the authority the power to obtain particulars of all persons interested in land by serving a notice on any person who occupies, manages or has an interest in the land. By section 16(2), where a person fails to comply with such a notice, he is guilty of an offence.

The Factual Background

15

Mr Gaskin owns four properties, each an HMO, from which he lets out a...

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