Simon Fletcher & Anor v Portsmouth City Council

Each non-mandatory HMO licence condition must be justified as appropriate for the particular house. A council-wide standard policy may be practical, but carries less weight on appeal unless the authority has considered the circumstances of the property and adapted the conditions accordingly. The mandatory requirement for a written statement of occupancy terms does not permit a licence to prescribe the substance of tenancy terms. Conditions requiring production of records on demand outside the safeguards in Housing Act 2004, section 235, need particular justification. Regulation 15 of the Provision of Services Regulations 2009 concerns authorisation requirements, not conditions governing operation after a licence is granted. A condition that inaccurately restates another statutory regime and risks confusion may be inappropriate.

Simon and Iva Fletcher held HMO licences granted by Portsmouth City Council for two properties. They appealed conditions in the licence for 1 Sheffield Road, including requirements concerning tenancy terms, production of records, waste, electrical installations and tenant references. The First-tier Tribunal (Property Chamber) varied some conditions but upheld most of those challenged. The Fletchers appealed to the Upper Tribunal on six grounds. The central issues included whether the conditions were appropriate for the particular property, whether some duplicated statutory requirements or bypassed safeguards for document requests, and whether regulation 15 of the Provision of Services Regulations 2009 applied to conditions governing a licensed HMO.

1. Appeal standard. The First-tier Tribunal must decide whether the licensing authority’s decision was wrong when made, while giving it the deference or special weight appropriate to the authority’s primary responsibility. It does not apply the judicial-review test of whether the decision fell within a reasonable range. The Upper Tribunal’s question was whether the FTT went wrong in that task: Hussain (Nasim) and others v Waltham Forest London Borough Council [2023] EWCA Civ 733 (paras [8]–[10]).
2. Conditions must be justified for the house. Under section 67 of the Housing Act 2004, the authority must justify a condition as appropriate in light of the property being licensed. Standard conditions can be a practical starting point, but should form a suite from which the authority selects and adapts conditions. A blanket policy applied without regard to the particular house carries less weight on appeal. The approach in Nottingham City Council v Parr [2018] UKSC 51 supported taking account of the property and its proposed mode of occupation (paras [64]–[68]).
3. Tenancy terms. Schedule 4, paragraph 1(5), requires a written statement of the terms on which occupiers occupy the house. It does not authorise the licence to prescribe the substance or scope of those terms. Condition 18 did so, and therefore was not justified by the mandatory condition; it also offended section 67(5) and (6). The condition was varied to mirror paragraph 1(5). Additional conditions beyond Schedule 4 are not necessarily invalid, but require their own justification under section 67 (paras [19]–[23]).
4. Document production. Section 235 provides a statutory route for demanding documents, with safeguards about the notice and consequences of non-compliance. A condition requiring production of underlying records outside that route needs particular justification. The Council had shown none. The requirements in conditions 20 and 32 to produce records on demand or request were removed; the record-keeping requirements remained. Annual production of a gas safety certificate under Schedule 4 was materially different from an on-demand request (paras [27]–[34]).
5. Provision of services rules. Regulation 15 of the Provision of Services Regulations 2009 did not govern the challenged conditions. Following the distinction drawn in R (Hemming) v Westminster City Council [2015] UKSC 25, the Tribunal held that conditions attached to operation of an already licensed HMO are distinct from requirements for obtaining authorisation. The FTT was right to reject this ground (paras [43]–[52]).
6. Electrical condition and references. Condition 15 imposed requirements that did not match the detailed duties in the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, risking confusion, including over enforcement. It was varied to contain only the mandatory wording in Schedule 4, paragraph 1(3)(c) (paras [59]–[61]). The reference-taking requirement in condition 20 did not justify supplying copies to the Council; the mandatory condition for Part 3 licences did not support that further requirement, and condition 20 gave no right to redact. This was an alternative reason for removing the production requirement (paras [69]–[73]).
7. Disposition. The appeal was allowed in part. Conditions 18 and 15 were varied, as were conditions 20 and 32 to remove the specified document-production requirements. The challenge under regulation 15 was dismissed; the FTT’s variation of condition 10 was not disturbed.

1. Upper Tribunal (Lands Chamber): On appeal, varied conditions 18 and 15 and removed document-production requirements from conditions 20 and 32. Appeal otherwise dismissed in relevant part.
2. First-tier Tribunal (Property Chamber): Decision dated 30 June 2025, references CHI/00MR/HML/2024/0001 & 0002. It varied some licence conditions and upheld most of those challenged.