Thanet DC v Grant LTL 2/11/2015 EXTEMPORE (only on Lawtel)
This case deals with a small point relating to HMO licensing and prosecutions. It is only on Lawtel as an extempore judgement but is a pretty clear statement of the law.
When making an HMO licensing designation there is a duty under s83 of the Housing Act 2005 on the local authority to ensure that the desgination is notified in the local area. The means of doing so are set out in that section and in accompanying regulations. There is also a duty on a local authority under s85(4) to “take all reasonable steps to secure that applications for licences are made to them in respect of houses in their area which are required to be licensed under this Part but are not so licensed.”
Thanet thought they had complied with these duties and sought to prosecute Mr Grant under s95 for failing to have a licence in an area in which an HMO licensing designation was in operation. He sought to rely on the statutory defence in s95(4) that he had a “reasonable excuse” for not having complied with licensing. This excuse was that he did not live in Thanet and that Thanet had breached their s85(4) duty because they had not sufficiently publicized the scheme to him (as he was not aware of it) and so they had not taken all reasonable steps to procure that applications for licences were made to them.
On the face of it this is not a bad argument. However, the reasonable excuse defence is rather more tightly bounded than this and it is absolutely not permitted to be used to frustrate the essential purpose of the legislation that it falls under. However, this point was apparently lost to the magistrates who acquitted Mr Grant. Thanet appealed by way of case stated to the Divisional Court.
The Divisional Court held that the magistrate had misunderstood the obligation. The fact that Mr Grant did not know about licensing in Thanet did not automatically mean that they had not fulfilled their duty and that he had a reasonable excuse. If Thanet had in fact not communicated effectively then that might found a reasonable excuse defence but there was no evidence of that and it was not possible to proceed backwards from Mr Grant’s lack of awareness to the presumption that Thanet had got things wrong. There had been an over-interpretation of s85(4) in this respect.
Appeal allowed and remitted back to the magistrates to reconsider.
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