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London Borough of Waltham Forest v Tuitt: When is a house not a house?

In the prosecution of three offences under Part 3 of the Housing Act 2004, Thames Magistrates' Court has held that each of the flats in a converted mid-terrace house is a 'house' for the purposes Part 3's selective licensing provisions.

Mr Tuitt owns the freehold interest in a mid-terrace house, converted into four, self-contained flats. The house lies within the borough of Waltham Forest, which is designated for selective licensing under Part 3 of the Housing Act 2004.

The local authority prosecuted Mr Tuitt for three offences under section 95(1) of the 2004 Act, alleging that he required three licences under Part 3 of the Act - one for each of the occupied flats in the house - and had none, contrary to section 85 of the 2004 Act.

Mr Tuitt defended the proceedings arguing that, as a matter of law, section 85 of the 2004 Act did not require him to obtain a licence for each of the flats in the house, just one licence for the house itself. Thus, he contended, the information laid against him was bad in law.

Sentencing Mr Tuitt to a fine of £4000 for each offence and ordering him to pay costs exceeding £12,000, District Judge McIvor held that each of the flats in the house was a 'Part 3 house' for the purposes of ss.85 and 99 of the 2004 Act; and that each required a licence.

The magistrates' court held that Mr Tuitt's application of section 99 of the 2004 Act, which defines the Part 3 house as 'a building or part of a building consisting of one or more dwellings', imperilled the policy objective of Part 3, which was to create sustainable communities by improving the condition and management of accommodation in the private rented sector. In particular, as section 79 of the 2004 Act required the whole of the Part 3 house to be occupied under one or more tenancies or licences, none of which was exempt, the court considered that Mr Tuitt's argument would have enabled the controller of a block of 10, 20 or 30 residential flats to avoid the need to license any of them, simply by leasing one to a registered provider of social housing for onward subletting, for example, or allowing it to lie vacant. The counter-submission that the extent of the Part 3 house should, therefore, vary from time to time according to its occupied parts, thereby avoiding the section 79 limitation, created uncertainty and was unworkable.

While this first instance decision will not bind future courts, in the absence of authority it is certainly likely to interest those practising in or affected by selective licensing under Part 3 of the 2004 Act nonetheless.

It is expected that Mr Tuitt will now appeal to the High Court by way of case stated.

Dean Underwood acted on behalf of the prosecuting local authority. Richard Hanstock represented Mr Tuitt.