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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gaskin, R (on the application of) v Richmond Upon Thames London Borough Council & Anor [2017] EWHC 3234 (Admin) (11 December 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/3234.html Cite as: [2017] EWHC 3234 (Admin), [2018] HLR 8, [2018] LLR 139 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE CARR
____________________
THE QUEEN (on the application of PETER GASKIN) |
Claimant |
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- and - |
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RICHMOND UPON THAMES LONDON BOROUGH COUNCIL LAVENDER HILL & WIMBLEDON MAGISTRATES' COURT |
First Defendant Second Defendant |
____________________
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: 29th November 2017
____________________
Crown Copyright ©
Lord Justice Bean :
This is the judgment of the court to which we have both contributed.
The facts
"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 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 [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."
"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 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."
"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).
i) from Mr Dave Offord, operations manager of the National Landlords Association, of which the Claimant is a member, dated 16th June 2016. Mr Offord states (although no dates are given) that as head of private housing at the Borough of Hammersmith and Fulham he was seconded to the Department of Communities and Local Government to oversee the introduction of parts of the 2004 Act, including national mandatory HMO licensing. He commissioned the production of a Financial Toolkit aimed at providing a standard framework to assist local authorities assessing the likely cost of licensing. He then gives opinion evidence on his interpretation of the evidence relating to the Council's explanation of its costs, his experience of the cost of licence renewal applications and his views as to the need for information as to current tenants of HMO property;ii) from the Claimant himself dated 2nd November 2017. In challenging the Council's justification of the fixed fees charged by reference to an average of 50 hours over a five year period to administer a HMO licence, he details the limited contact he has had over the years with the Council since the initial grant of the Licence.
Relevant legislation
Part 2 of the 2004 Act
"(1) An application 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 -
(a) specify the manner and form in which applications are to be made;
(b) require the applicant to give copies of the application, or information about it, to particular persons;
(c) specify the information which is to be supplied in connection with applications;
(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)."
"2.2 The 2006 Regulations specify the information required in a [HMO] licence application form. These Regulations reduce the information requirements for applicants for the renewal of licences for HMOs requiring a licence under Part of the [2004 Act].
…
4.4 These Regulations amend the 2006 Regulations so that where an application under Part 2…is a renewal application…the information required by paragraph 2(c) to (g) of Schedule 2 to those Regulations is not required. Instead, the applicant will be required to declare that the information had not materially changed since the existing licence was granted or to set out any material changes as part of the declaration. [emphasis added]
…
7.1 …Whilst the Government is satisfied that the overall legislative framework for tackling problems in HMOs achieves the right balance between the rights and obligations of private landlords and tenants, they wish to simplify the application form for HMO licence renewals as part of the commitment to reduce red-tape and unnecessary form filing…..
7.2 ….These Regulations therefore simplify the HMO licence renewal application form for those properties where there has been no material change since the initial licence was granted, as the information will already be held by the local authority.
…
9.1 We not propose to publish guidance for these Regulations. Local authorities have the discretion to make the necessary changes to their HMO licensing renewal application forms."
The 1976 Act
"(1) Where, with a view to performing a function conferred on a local authority by any enactment, the authority considers that it ought to have information connected with any land, the authority may serve on one or more of the following persons, namely—
(a) the occupier of the land; and
(b) any person who has an interest in the land either as freeholder, mortgagee or lessee or who directly or indirectly receives rent for the land; and
(c) any person who, in pursuance of an agreement between himself and a person interested in the land, is authorised to manage the land or to arrange for the letting of it, a notice specifying the land and the function and the enactment which confers the function and requiring the recipient of the notice to furnish to the authority, within a period specified in the notice (which shall not be less than fourteen days beginning with the day on which the notice is served), the nature of his interest in the land and the name and address of each person whom the recipient of the notice believes is the occupier of the land and of each person whom he believes is, as respects the land, such a person as is mentioned in the provisions of paragraphs (b) and (c) of this subsection.
(2) A person who—
(a) fails to comply with the requirements of a notice served on him in pursuance of the preceding subsection; or
(b) in furnishing any information in compliance with such a notice makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale."
Grounds of challenge
i) The Council's failure to process the application was unlawful; the Council misdirected itself in law in requiring a fee of £257 per unit;ii) The Council's failure to process the application without the provision of information in Part 3 was unlawful; the Council misdirected itself in law in requiring information concerning the names of the occupiers;
iii) The s 16 notice was unlawful;
iv) The decision to prosecute was unlawful.
Requirement for fee of £257 per unit
"I am astonished that a licensing re-application complying with the SI should take as long as 50.0 hours to process, particularly as the premises had been recently inspected and unconditionally licensed."
Requirement of provision of information on the renewal application form
Section 16 notice
Relief and delay
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant…….
b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship or, or substantially prejudice the rights of, any person or would be detrimental to good administration."
The EU law challenge
"… but in fixing fees for the processing of an application (as opposed to the grant of a licence to successful applicants) the authority may not take into account costs incurred by them in carrying out any function other than the processing of the application."
Conclusion
CLAIM NO: CO/2448/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
BEFORE: THE RIGHT HONOURABLE LORD JUSTICE BEAN AND THE HONOURABLE MRS JUSTICE CARR
BETWEEN:
Claimant
First Defendant
Second Defendant
UPON hearing counsel for the Claimant and the First Defendant and
UPON the Claimant discontinuing ground 4 of the claim
IT IS ORDERED THAT:
"The First Defendant was not entitled, as a condition of granting the Claimant a renewed HMO licence, to require the Claimant to provide the information relating to the occupiers of his HMO sought at section 3.1 of its renewal application form; the First Defendant's refusal to process the Claimant's application for a renewed HMO licence for failure to supply such information was thereby unlawful."
(i) The Claimant shall file and serve written submissions on costs, by 4pm on 18 January 2018;
(ii) The First Defendant shall file and serve written submissions on costs by 4pm on 25 January 2018;
(iii) The Claimant may, if so advised, file and serve written submission in reply by 4pm on 1 February 2018;
(iv) At each individual stage described above, the written submissions shall be limited to two sides of A4 paper in a minimum of size 12 font.