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Selective Licensing Reforms

By J

If the case-law is to be believed, local authorities have a hard enough time introducing selective licensing schemes as it is (see R (Peat) v Hyndburn and R (Regas) v Enfield)). Well, the government has published a draft SI designed to make it even harder.

In addition to the existing conditions which have to be fulfilled (broadly, ASB or low housing demand in an area, together with a consultation process), two new tests must also be met.

In all cases, the authority must be satisfied that the area to be licensed contains a high proportion of privately rented properties, let on assured tenancies or licences and one of four other conditions apply:

(a) the authority intends to inspect for Category 1 and 2 Hazards (Housing Act 2004) and a designation will assist this;

(b) the area has experienced or is experiencing an influx of migration and the designation will improve the social and economic conditions of the area, including management of properties to prevent overcrowding (WTF! Can you hear the dog-whistle…)

(c) the area is suffering from high levels of deprivation and a designation will assist to counter this; or,

(d) the area suffers from high levels of crime and, again, a designation will assist to counter this.

The plan seems to be that it’ll come into force on April 1, 2015. What is really interesting is that there is no transitional provision. So, suppose you’re a local authority which has resolved to introduce a scheme and already complied with the existing requirements, but your scheme is not yet in force. Do you now have to go back to the drawing board?



J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


  1. Robert Mellors

    Surely there is a contradiction between the criteria of “low housing demand in the area” and “an influx of migration”? If there is an “influx” of people into an area, then there cannot also be low demand.

    How is the “the designation will assist” criteria to be determined or measured, is it some objective criteria or a Council officer’s subjective and arbitrary opinion? What factors will be taken into account? What burden of proof?

    • J

      The gov has promised new statutory guidance by April 1. Also be warned that the General Consent is about to change…

    • Giles Peaker

      I don’t think it is impossible for there to be both low demand and an influx into an area, but in any event, this is not a necessary combination.

      The phrase ‘designation will assist’ is not the wording of the SI, that is J’s gloss. The SI uses the same ‘designation will […] contribute to the improvement’ criteria in the Housing Act 2004. (Though HA 2004 does use ‘designation will assist’ in s.81(4)(b).). So presumably assessed in the same way as previously.

  2. MM

    Speaking from an LA perspective, re transitional provisions, my view is this shouldn’t cause a problem for those who have made designation but have not yet brought their scheme into force. Under the current SI ‘approval’ is granted at the point the LA made its designation rather than when the scheme comes into force, as the wording of the current SI is in the present tense:

    “Every LA that designates an area of their district… has the secretary of state’s general approval of that designation for the purposes of s.82(1)(b)”

    The HA uses the past tense (or something like a past tense, I think it’s the ‘perfect indicative’) @ s.82:

    (1) A designation of an area as subject to selective licensing cannot come into force unless–
    (a) it has been confirmed by the appropriate national authority; or
    (b) it falls within a description of designations in relation to which that authority has given a general approval in accordance with subsection (6).

    Strong argument to say LA’s who have made a designation, but scheme has not yet come into force, were ‘given’ general approval at that stage and so don’t fall foul of the proposed changes.

    Birdy tells me that the DCLG has confirmed they share the above interpretation.

  3. Barry

    Waltham Forest have just released their application form for borough wide licensing. Surely they would need to satisfy these requirements in addition to the existing conditions or is it not retrospective?

  4. POM aka Olga Martin

    If this guidance is a backlash against the excessive interference of Councils such as Camden, who have added 50,000 to their list of licensed properties over the last 5 years ? They have completely lost sight of the purpose of licensing – to protect mainly HB tenants against landlord abuse. Instead they use it as a power ploy
    to divert attention from the horrendous conditions existing in many Council owned properties and to mitigate the cuts which the Government quite rightly continues to impose.

  5. Paul Rotherham

    You have this wrong – when you read the draft SI and think of conditions as property conditions rather than hurldes that must be overcome -you will get it right. It is clear that from the government announcement (page 17 of the pdf- page 14 when printed out) that it is the governments intentions to give further scope for authorities to be able apply selective licensing to more categories of houses – so the conditions identiefied above are additions to the list that already has areas of anti-social behaviour, and low demand as conditions.
    Paul Rotherham
    Legal and Policy Officer
    Sheffield City Council

  6. J

    Yes, I saw the announcement over the weeekend and wondered if I’d got it wrong. I need to print the SI and read it with the Act.

    What the announcement does make clear, however, is that the general consent is going to be reduced. Now that will clearly be a ‘hurdle’

    • Giles Peaker

      And these are additional conditions to the HA 2004 ones. My sense is it may make local licensing easier, but borough-wide considerably harder.



  1. Landlord Law Blog Roundup from 9 March - […] Nearly Legal on curtailing local authority powers to introduce selective licensing […]

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