Northumberland Mews Limited v Thanet District Council

Under Part 3 of the Housing Act 2004, a “house” may be a building, part of a building, or an individual flat consisting of a dwelling. A licence may relate to any premises which constitute a single Part 3 house. It need not relate to the largest or smallest possible unit within a building.

That flexible statutory scheme permits separate licences and separate offences in respect of different flats. The principle against doubtful criminalisation does not require a construction producing the fewest possible offences where the offence itself is clear.

Northumberland Mews Limited appealed against a First-tier Tribunal decision upholding five financial penalties imposed by Thanet District Council. The penalties concerned five flats in a 22-flat building acquired and managed by the appellant in a selective licensing area.

The appellant argued that the building, rather than the individual flats, was the only Part 3 house and that only one offence under section 95(1) of the Housing Act 2004 had been committed. The central issues were whether an individual flat could be a Part 3 house, how section 91(1) governed the scope of a licence, and whether the principle against doubtful criminalisation affected that construction.

1. Appeal dismissed. The five financial penalties imposed in respect of the five flats were upheld.
2. Section 99 of the Housing Act 2004 defines a house as a building or part of a building consisting of one or more dwellings. Read with section 79(2), an individual flat may therefore be a Part 3 house where it is in a designated area and the whole of it is occupied under the specified non-exempt tenancy or licence arrangements.
3. Section 91(1), which provides that a licence may not relate to more than one Part 3 house, means that the premises covered by a licence must constitute a single Part 3 house. It does not require identification of the smallest or largest possible unit within a building. A licence may accordingly relate to a flat, a group of flats comprising part of a building, or the whole building, provided the premises constitute a single Part 3 house.
4. The flexible construction is consistent with the statutory scheme and with the practical licensing arrangements illustrated by London Borough of Waltham Forest v Khan [2017] UKUT] 153 (LC). The authority is required to determine whether the premises identified in the application constitute a single Part 3 house; it need not audit the whole building.
5. The principle against doubtful criminalisation, illustrated by Dickenson v Fletcher (1873) LR 9 CP 1, was not engaged. There was no uncertainty that an offence had been committed. The principle does not require the statute to be construed so that the fewest possible offences are committed.
6. The argument that premises must be licensed when intended to be occupied was rejected. Section 79(2) requires occupation in the specified manner. Sections 91(2) and 91(5) address the timing of licensing and changes in occupation, including subsequent vacancies.
7. The local housing authority necessarily has discretion in deciding which offences to prosecute or penalise, but that discretion must respond to the information available and may be challenged if exercised irrationally.

1. Upper Tribunal (Lands Chamber): appeal against the First-tier Tribunal’s decision dismissed; the five financial penalties stood.
2. First-tier Tribunal (Property Chamber): upheld five financial penalties of £10,000 imposed by Thanet District Council.