The Queen (on the application of Peter Gaskin) v Richmond Upon Thames London Borough Council (First Defendant) Lavender Hill & Wimbledon Magistrates' Court (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean |
| Judgment Date | 11 December 2017 |
| Neutral Citation | [2017] EWHC 3234 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2448/2016 |
| Date | 11 December 2017 |
[2017] EWHC 3234 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mrs Justice Carr
Case No: CO/2448/2016
Mr Jonathan Manning and Mr Alexander Campbell (instructed by Public Access) for the Claimant
Mr Simon Butler (instructed by London Borough of Richmond) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 29 th November 2017
This is the judgment of the court to which we have both contributed.
This is a claim for judicial review brought by the Claimant, Mr Peter Gaskin, against Richmond-upon-Thames London Borough Council ("the Council") and Lavender Hill & Wimbledon Magistrates' Court. The Claimant seeks to challenge the Council's failure to issue him with a renewed licence for a house in multiple occupation ("HMO") under Part 2 of the Housing Act 2004 in respect of property at 157 Mortlake Road, Kew Gardens, TW9 4AW ("the Property"), and the Council's subsequent decision to prosecute him in the magistrates' court under s. 72 of the 2004 Act and s. 16 of the Local Government (Miscellaneous Provisions) Act 1976 for failure to pay the required fee and to provide the names of all the occupiers of the property.
The facts
The Claimant is the freehold owner of the Property, a HMO within the meaning of Part 2 of the 2004 Act. While at least some of the Claimant's family lives there, there are 7 units of accommodation at the Property which the Claimant rents out.
After the mandatory licensing provisions in Part 2 of the 2004 Act came into force, the Claimant applied for and, on 9 th December 2009, was granted a 5 year HMO licence by the Council ("the Licence"). On 14 th June 2013 he applied for a variation to the Licence so as to increase the permitted number of occupiers from 7 to 12, which was also granted (on 5 th December 2013). The Claimant was not asked to provide occupancy details for this purpose.
The Licence expired on 2 nd December 2014. On the preceding day the Claimant applied for renewal. Part 3.1 of the standard renewal application form ("Part 3.1") was entitled " Tenant Information" and read as follows:
"Please write the rooms making up each separate letting and list the occupiers in each of those rooms. The names of all the members of the household including children should be given. Indicate vacant rooms."
The box for completion included a column headed " Tenancy start and end date".
The Claimant declined to provide this information, writing the words " Not relevant" across the box. He says that he did so on the basis that he did not believe that the Council was entitled to require such information on a renewal application. There was no change to the licence requirements. He completed the remainder of the application form, including a declaration that to the best of his knowledge none of the information described in paragraphs 2 (c) to (g) "of that Act" and previously submitted to the Council had materially changed since the grant of the Licence. (The paragraphs mentioned were in fact to be found in Schedule 2 to the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006, as amended, but nothing turns on that inaccuracy in the form.)
Part 16 of the application form included a schedule of fees, showing a basic fee payable on submission of £257 per lettable unit. The schedule identified additional costs payable in certain circumstances, such as submission of an incomplete application. The fees had been set by the Council's Cabinet and Member Committee following a report from the Cabinet member for Adult Services, Health and Housing dated 29 th January 2014. No distinction was made between fees payable on renewal and those payable on an original application. Mr Simon Butler, appearing for the Council, told us on instructions that neither the report nor any record of the decision-making process can now be found.
The Claimant declined to pay the fee of £1,799 for 7 units on the basis that he considered it to be unlawfully high. He says that he had in mind other boroughs charging " far less" for licence renewals. He transferred £850 to the Council's account (on 1 st December 2014) but the Council later returned those monies.
On 11 th December 2014 Nicholas Hancock, a Senior Environmental Health Officer of the Council, wrote to the Claimant identifying that his application was incomplete in two respects: first in that question 3.1 had not been answered, and secondly that £949 was outstanding. The fee, he wrote, was non-negotiable. Mr Hancock requested that these matters be remedied within 14 days. He stated that until the outstanding matters were attended to, the Claimant would not be issued with a licence.
On 13 th January 2015 Mr Hancock wrote again to the Claimant indicating that he had received neither the outstanding information nor the correct fee. Therefore he was unable to process the Claimant's application or to carry out an inspection. He recommended that the Claimant reconsider his position. He reminded Mr Gaskin of his legal obligation to comply with Part 2 of the 2004 Act. By this stage the Claimant had made a request for information under the Freedom of Information ("FOI") Act 2000 relating to the Council's HMO licensing accounts. Mr Hancock stated that he had passed the request to appropriate colleagues. It was subsequently answered by the Council.
On 3 rd March 2015 the Council (again through Mr Hancock) served a notice under s 16 of the 1976 Act ("the s 16 notice") requiring the Claimant to state in writing within 14 days the nature of his interest in the Property and also " to state in writing the name and address of any other person known to you who has an interest in the land or premises, as freeholder, mortgagee, lessee or otherwise, or who receives rent for the land." It went on to say that the purpose for which the information was required was set out overleaf. Overleaf the notice stated:
"The information is required by the Council with a view to performing their function of Enforcement Authority and service of enforcement notice under powers conferred on them by the Housing Act (Part 2) Licensing of Houses in Multiple Occupation"
The Claimant did not comply with the s 16 notice. Accordingly on 19 th June 2015 the Council commenced a prosecution against him for failing to have a licence contrary to s 72 of the 2004 Act and failure to comply with the s 16 notice. In relation to the s 16 offence the Schedule of Alleged Offences stated:
"…. The [s.16] Notice was served with a view to the Council performing their statutory functions under Part 2 Housing Act 2004…and it required you, as a person having an interest in the property, to furnish to the Council the nature of your interest in the property and the names and address of each person who you believed to have an interest."
On 7 th July 2015 the Claimant entered "not guilty" pleas in the Magistrates' Court to each offence. The matter was fixed for trial on 17 th May 2016.
On 3 rd December 2015 the Council, at the conclusion of the complaints procedure which the Claimant had instigated, gave the following explanation to the Claimant:
"The Council charges the same for renewal and first time licensing because in our opinion the same amount of work is required for both. The original licence lasts for five years, so a rigorous check is required. The Council believes it is very thorough when carrying out this task. The fees are based on estimates of staff time used and assessments show that the average resource required is the same for renewals as for initial applications."
Procedural history
The Claimant issued this claim for judicial review on 12 th May 2016. Urgent interim relief was obtained on the same day staying the criminal proceedings. On 13 th June 2016 William Davis J refused permission to apply on the papers on the grounds both of delay and of lack of substantive merit. He certified the claim to be totally without merit. On delay he wrote:
" The notion that the First Defendant's decisions not to issue the Claimant with a renewed HMO licence and subsequently to prosecute the Claimant in the magistrate's court were continuing decisions is wholly unarguable. The decisions were taken almost a year prior to the issue of these proceedings. There is no conceivable basis on which to extend time, not least because it is apparent from the chronology provided by the Second Defendant that the Claimant was on notice about the prospect of judicial review from July 2015. These proceedings were commenced only after several hearings in the magistrates' court involving case management of the summary trial without any reference to an application for judicial review."
However, on 7 th December 2016 Gross LJ granted permission to apply and any necessary extension of time on the following basis:
"These issues are best resolved on their merits, rather than taking more time arguing whether the Applicant is out of time or whether [the Council's] decisions are continuing decisions. Accordingly, if it is necessary to do so, I extend time for the claim to be brought."
There is no right of appeal against such a decision to extend time for bringing a judicial review claim (see R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330), although the Court can still consider the question of undue delay in deciding whether to grant substantive relief (s 31(6)(b) of the Senior Courts Act 1981).
The Claimant served an Amended Statement of Facts and...
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R Peter Gaskin v Richmond Upon Thames London Borough Council
...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......