Brown v Hyndburn Borough Council

Under Part 3 of the Housing Act 2004, licence conditions regulating management, use or occupation do not extend to regulating a house’s condition and contents, or requiring new facilities, equipment or improvements. The separate powers concerning prescribed facilities and equipment confirm that limitation. Management may include operational matters and possibly routine non-structural maintenance. Conditions must also serve the statutory purpose of selective licensing: addressing low housing demand or anti-social behaviour that justified designation. Section 90(5) governs the relationship with Part 1 functions but creates no independent residual power. Category 1 and category 2 hazards are generally addressed through Part 1.

Paul Brown, a private landlord, challenged conditions imposed by Hyndburn Borough Council under a selective licensing scheme. The conditions required a carbon monoxide detector where gas was supplied and a valid electrical installation condition report, with remedial work where necessary.

The First-tier Tribunal substantially allowed the appeal, modifying the first condition and deleting the second. The Upper Tribunal (Lands Chamber) allowed the Council’s appeal and reinstated both conditions. The central issue before the Court of Appeal was whether section 90 of the Housing Act 2004 authorised those conditions, and whether section 90(5) supplied or preserved a wider power to address housing hazards through licensing.

1. Appeal allowed. The Court restored the First-tier Tribunal’s order. The original conditions requiring a carbon monoxide detector and a satisfactory electrical installation condition report were outside the Council’s power under section 90(1) of the Housing Act 2004.
2. Section 90 must be read as a coherent whole. Subsection (1) gives a general power concerning management, use or occupation. Subsection (3) separately permits conditions about prescribed facilities and equipment, while subsection (4) requires conditions specified by Schedule 4. Those separate provisions show that facilities and equipment do not fall within subsection (1). The comparison with the wider wording of section 67, which expressly refers to a house’s condition and contents, reinforces that conclusion.
3. Management in section 90(1) concerns operational matters concerning what happens at and to the property. Routine non-structural maintenance may fall within management, although the Court did not decide the boundary. Requiring installation of a new carbon monoxide detector regulated the house’s facilities and equipment. Requiring an electrical installation report stating that the installation was satisfactory effectively required improvements to the property. Both conditions were therefore unlawful. Allocating responsibility for maintaining an already-installed detector could properly be treated as management.
4. Alternatively, any power to impose conditions under Part 3 had to serve the statutory purpose of selective licensing. A direct and unequivocal link was unnecessary, but the authority had to conclude that the condition was an appropriate means of addressing the low housing demand or anti-social behaviour that justified designation. General upgrading of housing stock was not a Part 3 purpose.
5. Section 90(5) was not a source of residual discretion. It regulated the relationship between Part 1 functions and licensing conditions, emphasising the primacy of Part 1 for identifying, removing or reducing category 1 and category 2 hazards, while preserving the specific route under section 90(3). The Court left open the precise scope of the inspection power under section 4. Subsequent delegated legislation and non-statutory guidance could not alter the statutory construction. Conditions 6 and 8 were restored to the form ordered by the First-tier Tribunal.

• Court of Appeal (Civil Division): Allowed Brown’s appeal and restored the First-tier Tribunal’s order.
• Upper Tribunal (Lands Chamber): Allowed Hyndburn Borough Council’s appeal and reinstated the original licence conditions.
• First-tier Tribunal: Substantially allowed the landlord’s appeal under Schedule 5 of the Housing Act 2004, modifying the carbon monoxide condition and deleting the electrical installation condition.