Reynolds v Brent London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON |
| Judgment Date | 04 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1843 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2001/0784 |
| Date | 04 December 2001 |
[2001] EWCA Civ 1843
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Woolf of Barnes, Chief Justice
Lord Justice Mummery and
Lord Justice Buxton
Case No: B2/2001/0784
In the Matter of Section 348 of the Housing Act 1985
Mr Andrew Arden QC (instructed by Messrs Hodders) for the Appellant
Mr Timothy Frith (instructed by Straiton & Co) for the Respondent
Houses in Multiple Occupation [HMOs]
This appeal concerns Houses in Multiple Occupation [HMOs], and the attempts of local housing authorities to control their management and to protect the interests of their occupants.
There is a statutory definition of HMOs, which need not be set out because it is agreed to apply to the premises with which this appeal is concerned. More generally, however, HMOs are, or are usually, domestic premises originally designed for occupation by one family, which have been converted for occupation by a number of separate families or individuals. This process, which almost inevitably involves the sharing of bathing or kitchen facilities, and the use of parts of the premises for purposes for which they were not originally designed, raises obvious potential problems in terms not just of the amenity but also of the safety of the premises. In addition, government and Parliament have seen the need to make special provision in respect of HMOs because of the regrettable fact that it is often persons and families most in need of social protection, including families with young children, who find themselves obliged to occupy housing that, in the main, is likely to be much less adequate than purpose-built flats or houses.
These problems, and the special attention that they justify to be given to HMOs, have been graphically recognised by this court. In Rogers v Islington LBC (1999) 32 HLR 138 at p 140 Nourse LJ quoted a passage from the Encyclopaedia of Housing Law and Practice, and then added some comment of his own:
" 'Since the first controls were introduced it has been recognised that HMOs represent a particular housing problem, and the further powers included in this part of the Act are a recognition that the problem still continues. It is currently estimated that there are about 638,000 HMOs in England and Wales. According to the English House Condition Survey in 1993, four out of 10 HMOs were unfit for human habitation. A study for the Campaign for Bedsit Rights by G Randall estimated that the chances of being killed or injured by fire in an HMO are 28 times higher than for residents of other dwellings'.
The high or very high risks from fire to occupants of HMOs is confirmed by the study entitled "Fire Risk in HMOs", a summary report to the Department of the Environment, Transport and the Regions prepared by Entec U.K.Ltd in November 1997. HMOs can also present a number of other risks to the health and safety of those who live in them, such as structural instability, disrepair, damp, inadequate heating, lighting or ventilation and unsatisfactory kitchen, washing and lavatory facilities. It is of the greatest importance to the good of the occupants that houses which ought to be treated as HMOs do not escape the statutory control."
Parliament has long recognised the need to guard against such dangers, by giving to local housing authorities [LHAs] significant powers of control over the activities of those who own and manage HMOs. Such powers were first effectively included in Part IV of the Housing Act 1969, which was consolidated into Part XI of the Housing Act 1985 [the 1985 Act]. The present scheme, with which this appeal is concerned, is an expanded version of the original scheme, that was introduced into the 1985 Act by amendment by the Housing Act 1996. It will be convenient next to set out the main features of that scheme.
Statutory control over HMOs
The lynch-pin of control over HMOs is the power of an LHA to make a registration scheme that requires HMOs to be registered with the LHA. The scheme will contain "control provisions" regulating the property (1985 Act, ss 346–347). The LHA can either produce its own scheme, subject to confirmation by the Secretary of State, or can adopt a model scheme drawn up by the Secretary of State (1985 Act, s 346B). The rules that an LHA may follow in deciding whether to register particular premises are contained in s 348 of the 1985 Act, and need to be set out in full as they are crucial in this appeal. Section 348 reads as follows:
(1) Control provisions may enable the local authority, on an application for first registration of a house or a renewal or variation of registration-
(a) to refuse the application on the ground that the house is unsuitable and incapable of being made suitable for such occupation as would be permitted if the application were granted;
(b) to refuse the application on the ground that the person having control of the house or the person intended to be the person managing the house is not a fit and proper person;
(c) to require as a condition of granting the application that such works as will make the house suitable for such occupation as would be permitted if the application were granted are executed within such time as the authority may determine:
(d) to impose such conditions relating to the management of the house during the period of registration as the authority may determine.
(2) Control provisions shall provide that the local housing authority shall give an applicant a written statement of their reasons where they-
(a) refuse to grant his application for their first registration or for a renewal or variation of registration,
(b) require the execution of works as a condition of granting such an application, or
(c) impose conditions relating to the management of the house.
(3) Where the local housing authority-
(a) notify an applicant that they refuse to grant his application for first registration or for the renewal or variation of a registration,
(b) notify an applicant that they require the execution of works as a condition of granting such an application,
(c) notify an applicant that they intend to impose conditions relating to the management of the house, or
(d) do not within five weeks of receiving the application, or such longer period as may be agreed in writing between the authority and the applicant, register the house or vary or renew the registration in accordance with the application,
the applicant may, within 21 days of being so notified or of the end of the period mentioned in paragraph (d), or such longer period as the authority may in writing allow, appeal to the county court.
(4) On appeal the court may confirm, reverse or vary the decision of the authority.
(5) Where the decision of the authority was a refusal-
(a) to grant an application for first registration of a house, or
(b) for the renewal or variation of the registration,
the court may direct the authority to grant the application as made or as varied in such manner as the court may direct
The provisions as to registration schemes are supplemented by a wide range of further powers on the part of the LHA, which apply to HMOs whether they are registered or not. These include powers to require the execution of works to render the premises fit for the number of occupants (1985 Act, s 352); and powers to require the execution of works to repair failures to comply with a management code drawn up by the Secretary of State under s 369 of the 1985 Act (1985 Act, s 372). It is an offence under s376 of the 1985 Act for the person on whom either type of notice has been served wilfully to fail to comply with it. The owner of an HMO additionally remains bound by the general housing and other law: including, relevantly to the present case, powers on the part of the LHA to require repairs to houses that are unfit for human habitation (1985 Act, s 189); and the abatement of statutory nuisances (Environmental Protection Act 1990, s 80).
The scheme operated by Brent LBC
In the present case the appellants [Brent] adopted a scheme confirmed by the Secretary of State under s346B. That sets out "Conditions for Registration", which reproduce verbatim the four sub-sections, (a)-(d), of section 348(1), but prefaced them with the words
"The authority may, on an application for first registration of a house or a renewal of [sic] variation of a registration"
It will be observed that this formulation applies the apparently facultative expression "may" to each of the LHA's powers: in contrast to the terms of section 348(1) itself, which used the word "may" in relation to the types of power that might be included in the scheme, rather than to the content of those powers once so included. It will be necessary to say something more of that in due course.
Neither the 1985 Act nor the model scheme provides any definition of, or guidance in relation to, the concept of "fit and proper person" in section 348(1)(b). That is provided in a separate Brent policy document, which in relevant part reads as follows:
"the applicant's suitability as a "fit and proper" person will be judged against the following criteria:
1. Is the landlord known to have been convicted by this Authority for non compliance with substantial enforcement notices i.e. s190, s189 and s352 in the past five years?
2. Is the landlord known to have had work in default carried out (not with their agreement) of substantial enforcement notices i.e s190, s189 and s352 by this Authority in the past five years.
3. Is the landlord or any of his...
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