Archive for the 'Regulation and planning' Category

Carrots and sticks – travellers’ sites

Published by NL on 01/09/2010 in FLW article, Housing law - All, Licences and occupiers and Regulation and planning. 1 Comment Tags: , , , .

News from Mr Pickles and the DCLG

Item 1. The Government is to bring s.318 Housing and Regeneration Act 2008 into force, finally according travellers on authorised sites the same security as those who come under the Mobile Homes Act. Hurrah.

Item 2. Planning circulars regarding construction of authorised travellers sites are being scrapped. Apparently because Councils complained about being forced to build on countryside and undertake compulsory purchase. Actual examples of either are welcome if anyone has come across them – we’d be interested.

Item 3. The regional strategies have already gone.

Item 4. ‘Plans for further powers for councils to combat unauthorised development’. Awaited…

Item 5. ‘New Homes Bonus Scheme’ to be extended to travellers’ sites, so councils get financial benefits for building authorised sites ‘where they are needed’. But what happened to the frozen Gypsy and Traveller site grant budget (or what was left of it)? That form of direct payment to Councils to develop sites has vanished.

Localism – it’s been tried before and didn’t work in this context. I’m not holding my breath for the sudden appearance of much needed authorised sites.

Meanwhile, Birmingham is worried about the Pope and trespassing Travellers. Don’t go near Birmingham without a ‘Pilgrim Pass’ on 19 September, apparently.

There is an argument, although not one vocally espoused by NL, that visiting Birmingham on that or indeed any other date would be penance enough to both qualify one as a pilgrim and to have 5 or 6 venial sins and possibly a mortal one wiped off the slate. But right now all I really want to do is pop Richard Dawkins into a two bed towable and head up the M6…

HMOs and Council Tax

Published by David Smith on 30/07/2010 in Assured Shorthold tenancy, FLW case note, Housing law - All and Regulation and planning. 1 Comment Tags: , , .

Goremsandu, R (on the application of) v London Borough of Harrow [2010] EWHC 1873 (Admin)

As many of you will know the definition of an HMO for the purposes of Council Tax is totally different from that used in the Housing Act 2004 (and in relation to planning uses classes). It is, however, an important definition because where a property is an HMO the Council Tax (Liability for Owners) Regulations 1992 require that the owner is the person who has the primary liability to pay the Council Tax, even if they then pass on that charge to the tenants.

In this case G owned a property with a conservatory which she had let to four tenants from October 1999. Crucially the tenants were on a single tenancy agreement and were jointly and severally liable for breaches. After a series of renewals the tenancies came to an end in December 2007 with the tenants finally vacated in February 2008 after holding over as periodic tenants for a short time. The property had been let furnished but the tenants did not wish to use the furniture and had, by agreement with G, placed it into the conservatory. This basically rendered the conservatory unusable. Towards the end of the occupation G built a new two-room extension to the property which joined it by way of the conservatory. This was completed shortly before the tenants moved out and G had apparently moved into the extension about 2 weeks before vacant possession was given up by the tenants. It seems that the tenants had not paid the entirety of their Council tax and London Borough of Harrow (LBH) then sought to recover the outstanding sums along with bailiff’s fees from G, a figure in excess of £11,000. She took the matter to the London (North West) Valuation Tribunal who gave a decision dated 23 June 2009. This decision was then appealed to the High Court.

The case for LBH and the decision if the Tribunal turned on their interpretation of regulation 2 Council Tax (Liability for Owners) Regulations 1992. This states:

The following are the classes of chargeable dwellings prescribed for the purposes of section 8(1) of the of section 8(1) of the [LGFA]-
Houses in multiple occupation, etc
Class C a dwelling which
(a) was originally constructed or subsequently adapted for occupation by persons who do not constitute a single household; or
(b) is inhabited by a person who, or by two or more persons each of whom either-
(1) is a tenant of, or has a licence to occupy, part only of the dwelling; or
(2) has a licence to occupy, but is not liable (whether alone or jointly with other persons) to pay rent or a licence fee in respect of the dwelling as a whole.

The Tribunal found as facts that each tenant was liable to pay their rent separately to G and also that she had restricted access to the conservatory. They did so primarily on the basis of evidence submitted by the tenant’s through LBH. They discounted the tenancy agreements which were expressed to be in the name’s of all the tenants. The Tribunal also found that G had restricted access to the conservatory. Based on these findings the Tribunal found that the property was an HMO for the purposes of Council tax and the money was payable.

The High Court criticised the basis on which the Tribunal had approached this matter. The starting point for their investigation should have been the tenancy agreements the parties had entered into. The statements by the tenants referring to paying their ‘shares’ of the tenancy simply expressed the fact that the rent for the property was shared among them. It did not undermine the agreement itself and the right of the landlord to hold them jointly and severally liable for the rent. It also did not mean that the tenants did not enjoy full access to the property.

With regard to the conservatory the evidence showed that the tenants retained a right of access to it and that it was filled with the landlord’s furniture because of their choice, albeit with the landlord’s consent.

By failing to give effect to the tenancy agreements the tribunal had applied the law incorrectly. They had also applied the test in the regulations incorrectly. The Tribunal had taken the view that individual rent charges equated to an HMO whereas the test in the regulations was whether “the rent charges gave rise to a licence whereby they only occupied part only of the dwelling or whether they were paid in respect of part only of the dwelling.” On the facts the individual rent charges, in so far as they existed, were paid to allow access to the whole of the dwelling and so the decision by the Tribunal was incorrect.

Appeal allowed.

A farewell to the pink campervan?

Published by NL on 18/06/2010 in Housing law - All and Regulation and planning. 5 Comments Tags: , , .

It appears that the Tenant Services Authority is living on borrowed time and is on route to being the shortest lived social housing regulator ever, having got its full powers only in April 2010. There will probably be an announcement at the Chartered Institute of Housing conference, next week.

See this interview with Grant Shapps, Housing Minister, which strongly suggests that the oversight of housing association governance and finances will go to the Homes and Communities Agency, while the tenant services regulatory aspect will go… well nowhere much:

[T]he framework developed by the TSA to ensure the provision of excellent tenant services will remain – indeed, Mr Shapps claims to ‘agree with virtually every word’ in the 86-page document which he describes as ‘great work’. However, complaints that cannot be resolved by a landlord will escalate to an elected local official such as a councillor or MP, before heading to the, existing, housing ombudsman service as a final resort.

Mr Shapps admits that several details of this new system have yet to be worked out so it is unclear whether the ombudsman would take on any statutory powers, or rather refer intractable cases to the CLG and Mr Shapps. ’ I think there is a system of tenant empowerment here that could go way beyond the incredibly complex structures that the TSA envisages,’ he says, ‘and would bring power back home for tenants.’

Note also that the manifesto promise to leave security of tenure alone, might not be quite as, well, secure as all that. Mr Shapps announced in the House of Commons last week that reducing social housing waiting lists was a priority and this ‘…may include looking at tenure for the future’.

Pulling the Rugg out from under them

Published by NL on 10/06/2010 in Housing law - All and Regulation and planning. 2 Comments Tags: , , , .

Housing Minister Grant Shapps has now confirmed that not only the National Landlord Register is finished as a proposal. Also dead in the water are regulation of letting and managing agents, and compulsory written tenancy agreements.

Councils are ‘urged to use the wide range of powers that they already have at their disposal’ to deal with bad landlords. Quite who is to deal with dodgy letting and managing agents is not clear.

No further regulation of the private rental sector is to be expected.

In other news, cuts of £360 million to Criminal legal aid are confirmed. Civil legal aid shivers at the footstep on the stair…

Housing policy dribbles

Published by NL on 08/06/2010 in Housing law - All, Regulation and planning and Various (non-housing). 7 Comments Tags: , , , , , .

Or the good, the bad and the ugly from the Housing minister and the Communities and Local Government secretary.

Grant Shapps, housing minister has been setting out some plans, or perhaps aspirations. Mostly, these seem to involve encouraging people to buy houses. And encouraging mortgage lenders to lend more to people to buy houses. Via an unspecified “structural change” in how supply meets demand. Sounds like a plan, and one we haven’t seen before…

On rented accommodation, Mr Shapps confirmed that the national landlord register mooted under the last government will be scrapped. The rest of the Rugg review recommendations and being considered – more to come shortly, but apparently they plan to ‘penalise rogue landlords but not by penalising everybody’. It is a fair bet that the mumsnet for tenants is out the window.

Government support for shared ownership schemes has ‘run out of cash’ and will end.

Meanwhile, on the plus side, the consultation on the Housing Revenue Account system continues, with Mr Shapps describing the current position as ‘unfair’ and looking at devolved powers to councils with greater financial freedom on their housing funding. We shall see.

Eric Pickles at Trauma TowersAnd for the ugly, we turn to Eric Pickles at the DCLG and the emerging policy on gypsies and travellers. Not content with scrapping the Housing and Communities Agency funding that was in place for developing new sites and refurbishing old ones (and some really, really need refurbishment) and persisting with the Conservative plan to criminalise trespass, Eric Pickles has announced that he intends to “scrap new rules giving Gypsies and Travellers a “level playing field” in planning disputes with local authorities”. And then the regional planning schemes, which encouraged/required local authorities to find or build permanent sites are also to be scrapped. These are going to be difficult times for gypsies and travellers, with apparently not a peep from the Lib-Dems.

A farewell to the RSL

Published by NL on 26/03/2010 in Assured Shorthold tenancy, Housing law - All, Regulation and planning, assured-tenancy and secure-tenancy. 6 Comments

On 17 March 2010, the ‘The Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010′, SI 2010 NO. 866 was made. Also enacted on 17 March was The Housing and Regeneration Act 2008 (Commencement No. 7 and Transitional and Saving Provisions) Order 2010, SI 2010 NO. 862. Both come into force on 1 April 2010. The upshot is that the Tenant Services Authority becomes the regulator for both RSLs (as where) and Local Authority housing providers. But of course, there must be some changes of name. The TSA is, for the purposes of the Act at least, now the ‘Regulator of Social Housing’, but that is not all.

From 1 April 2010, RSLs are no more, becoming instead ‘private registered providers of social housing’. while Scottish Homes becomes ‘a non-profit registered provider of social housing’.

‘Private’? Does one detect the result of lobbying, post Weaver.

Today’s challenge is to browse the full list of amended legislation and to find bits they’ve missed…

(Not so) Restrictive Covenants

Published by David Smith on 13/02/2010 in FLW case note, Housing law - All and Regulation and planning. 0 Comments Tags: .

Flowers, Re 30 Burges Road [2010] UKUT 23 (LC)

The Lands Tribunal, or the Upper Tribunal (Lands Chamber) as we should now refer to it, has recently ruled on an interesting restrictive covenants issue.

Ms Flowers is the owner of a freehold house on the Thorpe Bay Estate in Southend. She holds as a successor in title from the Woods who originally purchased from the Thorpe Bay Estate Company itself. The original transfer included an interpretation clause stating:

In this Transfer unless the context otherwise requires ‘the Vendor’ includes its assigns and the owners for the time being of the Thorpe Bay Estate aforesaid …

It also includes a number of restrictive covenants, the key one in this case being:

Not at any time to make any alterations or additions whatsoever to the property hereby transferred nor to erect any other buildings whether of a permanent or temporary nature upon the property hereby transferred except in accordance with the plans previously approved in writing by the Vendor and to pay the Vendor’s Architect’s and Surveyor’s costs in connection with such approval.

Over time the freehold interest in many of the properties on the estate have been conveyed to the leaseholders. The Thorpe Bay Estate Company has also conveyed its interest to Thorpe Estates Ltd.

The essence of Ms Flowers complaint was that Thorpe Estates Ltd had been seeking to enforce its rights to be paid under the provisions of the restrictive covenant above where an owner sought to redevelop or alter his property. They had apparently been successful in gaining payment for the giving of their approval. Ms Flowers was described by the Tribunal as being ‘incensed’ by this state of affairs. She was seeking amendment of the restriction under section 84(1) of the Law of Property Act 1925 so that it read:

Not at any time to make alterations or additions whatsoever to the property hereby transferred that are not in keeping with the scale, design and character of the neighbouring properties. Not to erect any other building of a permanent or temporary nature upon the property.

Section 84 allows the Lands Tribunal to modify or wholly or partly discharge a restrictive covenant on various bases. The two Ms Flowers was seeking to rely on were ground a which reads:

that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete…

and ground c which reads:

that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction

Ms Flowers two concerns were concisely expressed by the Lands Tribunal as follows:

Firstly there is the demanding of payments by Thorpe Estates Limited for its approval. But, secondly, she is concerned that the quality of the estate should be upheld, and she considers that the planning regime is inadequate for this purpose. The property next to hers has been redeveloped in a way that she considers out of keeping with neighbouring properties. She therefore seeks to have imposed on her own property, which she is about to sell, a restriction that would prevent its redevelopment or its alteration in a way that was out of keeping.

The Tribunal was not, however, prepared to make the modification that Ms Flowers sought. No objections to her application had been received and so the Tribunal was largely unconcerned that the first two effects of the amendments she sought would be to prevent any redevelopment to her own property on its sale and would also deprive Thorpe Estates Ltd of its ability to refuse consent for any alterations or redevelopment.

What the Tribunal was not prepared to countenance was the third consequence of the amendment which would prevent changes which were “not in keeping with the scale, design and character of the neighbouring properties”. The Tribunal did not accept Ms Flowers contention that it would be obvious what was and was not in keeping and held that it was far too subjective and because the restriction had no provisions as to who should arbitrate disputes it was so fraught with problems that it should not be imposed.

This case is a good example of the dangers of carelessly drafted provisions and this decision has avoided the high probability of satellite litigation at a later date.

John Healy saves the world*

Published by NL on 03/02/2010 in Assured Shorthold tenancy, Housing law - All and Regulation and planning. 12 Comments Tags: , .

*Not really.

The current housing minister, who holds the current record for the number of times a housing minister’s name can be mentioned in a press release, has announced forthcoming legislation, in response to the Rugg report. More details here [link to PDF]. The announced headlines are as follows, then we’ll take a look at the substance.

Funding for a new housing hotline offering free help and advice for private tenants should things go wrong.

An online word-of-mouth directory of landlords similar to tripadviser or mumsnet. Consumer Focus is currently undertaking work to establish better ways for tenants to provide and access information about landlords’ track records.

A requirement for written tenancy agreements that will strengthen the hand of tenants should they face a dispute and ensure all tenants and landlords are clear of their rights and responsibilities.

Boosting the number of tenants protected under the most commonly used tenancy agreement. An increase of the short-term rental threshold to £100,000 a year will mean that many shared households, most often those of students or seasonal workers, will have their rights strengthened and protected by legislation should they face a dispute.

A National Register for Landlords to help tenants make basic checks on their prospective landlords. Councils will be able to identify local landlords more easily, making enforcement of letting rules easier, and registered landlords will gain access to the latest advice and information on what their role entails and how best to fulfil their responsibilities

Better regulation of letting and managing agents, which will help tackle the rogue agents who can drag the reputation of the Private Rented Sector down. Full legislation will drive out the worst practices such as wrongful eviction, raise standards and provide greater protection for both tenants and landlords in cases of dispute.

Work is also currently underway with councils across England to encourage best practice in taking a more business-friendly approach to working with the best landlords and agents in their area. Creating Local Letting Agencies, where councils and good landlords work together to help local people find better-quality homes in the private rented sector will help to effectively side-line the cowboys across the country.

So, clear substance is:

  • the raising of the AST annual rent limit to £100,000 (which is well overdue)
  • a requirement for a written tenancy agreement (although how would this be enforceable?)
  • regulation of letting agents (although what this actually means will have to be seen)
  • Surprisingly, a compulsory national register of landlords (except leasehold, holiday lets and resident landlords) even with suggestions for enforcement.

The pure wind/smoke/mirrors are:

  • A mumsnet for tenants to swap tips on landlords. Why on earth is the Government proposing to do this? Governments don’t do this kind of thing well. And who ends up liable for the libel?
  • Funding for a new housing hotline to provide advice to tenants. We already have several versions of this, all more or less underfunded. If this is to be a national advice line, prospectively covering the entire rented sector (approaching 40% of households), then that is serious money. And the training of the advisors? Look, if they are going to hand out the money to actually provide such a service, I’m going to be rebranding myself as a trainer for tenant advisors. But we all know that isn’t going to happen. Instead, at best, a horde of basically trained call centre fodder will be let loose on some of the most complicated public facing law this jurisdiction can offer.
  • Local Letting Agencies, where private landlords and local authorities work together in happy harmony. Uh huh.

So, some potentially good bits, even surprisingly so, but also some airy nonsense. Now let us see whether this makes the statute books.

HMO Planning Changes and a Consultation

Published by David Smith on 29/01/2010 in FLW article and Regulation and planning. 2 Comments Tags: , .

The Department of Communities and Local Government yesterday published a response on their website to a consultation on planning responses to HMOs which was launched back in May 2009.

Briefly, there is concern that certain areas, principally where there are a lot of students are becoming dominated by HMOs. The current powers to control HMOs under Part 2 of the Housing Act 2004 provide limited scope for dealing with this at is not permissible to refuse a licence for an HMO on the basis that there are too many HMOs in the immediate area. The original consultation proposed a number of ways to resolve this issue, centering around an alteration to planning categories.

Ultimately, the intended resolution involves creating a new planning category specifically for HMOs and defining it in accordance with the definition given by s254 of the Housing Act 2004. Put simply, properties rented to three or more individuals who do not form one household (three sharers in other words) will form a separate planning category and it will be necessary to obtain planning permission for these lets.

The new planning category will be brought into existence on 6 April 2010 by an amendment to the Town and Country Planning (Use Classes) Order 1987.

Separately, a short, 12 week, consultation has been launched to alter the method by which permissions are granted for additional and selective licensing under parts 2 and 3 of the Housing Act 2004 respectively. Additional licensing allows for local authorities to license HMOs other than those prescribed for mandatory licensing. About 12 local authorities do this across England. Selective licensing allows for the licensing on non-HMO landlords in areas of low housing demand which also have problems with anti-social behavior. 10 local authorities in England currently have consent to operate selective licensing schemes. The permission to operate additional and selective licensing is a devolved competency in Wales and so this consultation has no application there.

The current process requires each local authority to carry out a consultation process in its area and then seek consent from the Secretary of State to actually carry through the new licensing designation. What is proposed is to grant a blanket permission for additional and selective licensing in England, thereby removing the need for the Secretary to grant consent in each case. Each local authority will still need to carry out a consultation but that will be all that is needed.

This proposal looks set to be carried through but, given that a number of requests to the Secretary of State have been rejected in the past it seems unwise to remove this check. One suspects that the position will be filled by the judicial review process if local authorities do not carry out the consultations to a suitable standard.

Its all in the name

Published by J on 21/01/2010 in Housing law - All and Regulation and planning. 1 Comment Tags: , .

The Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010 has just been laid before Parliament in draft form, to come into effect on April 1, 2010. A copy is available here.

In short, it makes it compulsory for local authorities which provide or intend to provide social housing to register with the TSA.

In addition, in what I can only presume is some misguided attempt to minimise Weaver, RSLs in England will now be known as “private registered providers” in contrast to “registered providers” as the 2008 Act originally provided.

Come on DCLG – if you want to get around Weaver you’ll have to do better than that!