Planning status of house can be relevant to selective licensing: Upper Tribunal

It is legitimate for a local housing authority to have regard to the planning status of a house when deciding – under a selective licensing regime – whether or not to grant a licence, the Upper Tribunal has ruled.

Each of the appeals in Waltham Forest v Khan (Housing - Selective Licencing) [2017] UKUT 153 (LC) concerned converted flats created without the benefit of planning permission by the respondent, Mr Khan, who subsequently applied to the local housing authority for a Part 3 licence for those flats.

In each case the London Borough of Waltham Forest granted a licence for a period of 1 year only with the intention that during that period the planning status of the flats should be regularised.

In each case on appeal to the First-tier Tribunal (Property Chamber) the period of the licence was increased to 5 years on the grounds that the respondents' compliance with planning requirements was irrelevant to the question of licensing.

Waltham Forest appealed against the FTT's decisions.

Martin Rodger QC, Deputy President Chamber, said he agreed with the general observations of the FTT in both appeals that Part 3 licensing should not be seen as an alternative to the use by a local housing authority which is also a local planning authority of its powers of enforcement under the Town and Country Planning Act.

“But that does not mean that where a building has been converted to residential use, or an existing residential use has been intensified, in either case in breach of planning control, those circumstances are irrelevant to the decision whether to grant a licence or to its terms,” he said.

The judge said that in the case of the Waltham Forest licensing scheme, the designation was made in the light of the authority's conclusion that the general condition in section 80(6) of [the Housing Act 2004] was satisfied, that is that the area designated 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.

“In my judgment it cannot possibly be said that, in the light of that objective, the issue whether a house has been built or occupied in breach of planning control is irrelevant,” the Deputy President said.

“Inappropriate or over-intensive uses of land, especially in a densely populated urban area, are an obvious manifestation of anti-social behaviour in themselves and create conditions in which anti-social behaviour is liable to be a significant problem.”

The judge said 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 consideration of the impact which the occupation of a new house will have on its neighbours has been by-passed, because the house has been built or converted without planning consent, important safeguards against anti-social behaviour will have been evaded. To that extent the concerns of planning control and the concerns of licensing under Part 3 of the 2004 Act overlap,” he found.

“It is therefore unnecessary and unrealistic, in my judgment, to regard planning control and Part 3 licensing as unconnected policy spheres in which local authorities should exercise their powers in blinkers. I am satisfied that it is 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.”

The judge said it would be permissible for an authority to refuse to determine an application until it was satisfied that planning permission had been granted or could no longer be required. He added that it would be equally permissible, where an authority was satisfied that enforcement action was appropriate, for it to refuse to grant a Part 3 licence, “but as Waltham Forest points out 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 Deputy President said the solution adopted by Waltham Forest of granting a licence for a short period to allow the planning status of the house to be resolved “was, in those circumstances, a rational and pragmatic course which I accept was well within its powers”.

The judge said it would not be satisfactory either to place the onus on the local authority to establish a breach of planning control in costly and time consuming enforcement proceedings when the landlord's requirement of a Part 3 licence provided an opportunity to require that he took the initiative of demonstrating that he did not need, or alternatively was entitled to, planning permission.

“The authority has a discretion over the duration of each licence it grants, and there is no automatic entitlement to a period of five years,” the Deputy President pointed out.

“Where there are grounds to believe that the applicant requires but does not have planning permission the grant of a shorter period is a legitimate means of procuring that an unlawful use (which itself may exacerbate anti-social behaviour) is discontinued or regularised.”

The judge said he was therefore satisfied that both FTTs were in error in regarding the issue of planning status as irrelevant to the terms of a Part 3 licence. He also agreed a submission from Waltham Forest’s QC that the reasoning of the FTT in one of the appeals was flawed to the extent that it relied on the power of a housing authority to revoke a Part 3 licence.

“Moreover, although it would be wrong for a local housing authority to use its Part 3 powers with the intention of punishing a landlord for a breach of planning control, there is nothing in Waltham Forest's guidance to its staff that could reasonably be interpreted as reflecting such an intention, as the FTT in the Eldon Road appeal appears to have believed,” he added.

The judge decided that the licences for each of the appeal houses should continue until two months after the date of his decision (until 12 June 2017).

That would allow Mr Khan 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 Waltham Forest to make a decision on those applications with all of the information now at its disposal, he said.