Hastings Borough Council v Linda Turner

An appeal by way of rehearing from a regulatory licensing decision does not place an evidential burden on the licensing authority to prove afresh the facts supporting its decision. The appellant must establish why a different outcome is justified. The appellate tribunal must make its own decision on the material before it, while giving proper weight and respect to the authority’s evaluative judgment. It is not confined to reviewing the authority’s decision-making. In an HMO licensing appeal, the tribunal must assess the statutory conditions itself, including whether proposed licence holders are fit and proper persons, are the most appropriate persons available, and have satisfactory management arrangements. A section 257 HMO’s management obligations principally concern the common parts, structure and exterior of the building. The appeal was allowed and the licence confirmed.

Hastings Borough Council granted an HMO licence for a converted block of flats to three joint freeholders and Indigo Properties UK Ltd, which held a lease of one flat. Linda Turner, another joint freeholder and the leaseholder of a further flat, appealed to the First-tier Tribunal, objecting to the proposed licence holders and management arrangements.

The FTT allowed her appeal. This Tribunal had previously determined that the building was a section 257 HMO and had remitted the licence appeal to the FTT: [2020] UKUT 185 (LC). The Council appealed the FTT’s second decision, arguing that the FTT had wrongly placed the burden on the authority and had failed to analyse the evidence. The central issues were the proper approach to a rehearing under paragraph 34 of Schedule 5 to the Housing Act 2004 and whether the licence conditions were satisfied.

1. Appeal allowed. The FTT had adopted the wrong approach. A local housing authority determining an HMO licence application performs an adjudicative regulatory function. The onus at the application stage lies on the applicant, but a rehearing appeal does not transform the authority into an adversarial litigant bearing an evidential burden.
2. On an appeal involving an evaluative judgment or discretion, the appellant must lead evidence and establish a basis for a different outcome. The FTT must make up its own mind on the material before it, including material unavailable to the authority, but must give proper weight to the authority’s decision and reasons. It must not conduct a mere review of the authority’s decision-making. The principles in R (Hope and Glory Public House Limited) v The City of Westminster Magistrates Court [2011] EWCA Civ 31, Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, London Borough of Brent v Reynolds [2001] EWCA Civ 1843 and the earlier licensing authorities applied.
3. The FTT wrongly required the Council to investigate and prove the allegations made by Ms Turner. Its task was to assess the evidence itself. The FTT had not analysed the evidence, reached findings on its relevance or made the necessary evaluative judgments. That was a separate error of law.
4. On the rehearing, the proposed licence holders were fit and proper persons. The complaints concerning Mr Lawson and Indigo did not establish unsuitability. The statutory presumption concerning the person having control did not require Ms Turner to be included when she had refused to participate. The three willing freeholders and Indigo were the most appropriate persons reasonably available.
5. The proposed management arrangements were satisfactory. For a section 257 HMO, the relevant management duties principally concern the common parts, structure, exterior and non-demised external areas. The evidence supported the inference that conventional lease and service-charge arrangements existed to fund those responsibilities. The Council’s licence decision was therefore confirmed.

• Upper Tribunal (Lands Chamber): The appeal against the FTT’s decision was allowed. The Tribunal reheard the licence application and confirmed the Council’s grant of the HMO licence.
• First-tier Tribunal (Property Chamber): The FTT had allowed Ms Turner’s appeal and reversed the licence decision.
• Upper Tribunal (Lands Chamber): On the earlier appeal, the Tribunal determined that the building was a section 257 HMO and remitted the licence appeal to the FTT: [2020] UKUT 185 (LC).