The Mayor and Burgesses of the London Borough of Brent v Douglas Gerrard Reynolds [2001] EWCA Civ 1843

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
[2001] EWCA Civ 1843Case No Case No: B2/2001/0784Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
The Mayor and Burgesses of the London Borough of BrentAppellantDouglas Gerrard ReynoldsRespondent
Before
Lord Woolf of BarnesLord Justice MummeryLord Justice BuxtonMr Andrew Arden QC (instructed by Messrs Hodders ) for the AppellantMr Timothy Frith (instructed by Straiton & Co) for the RespondentDate 4 December 2001

LORD JUSTICE BUXTON :

Houses

[1]in Multiple Occupation [HMOs] This appeal concerns Houses in Multiple Occupation [HMOs], and the attempts of local housing authorities to control their management and to protect the interests of their occupants.[2]There is a statutory definition of HMOs, which need not be set out because it is agreed to apply to the premises with which this appeal is concerned. More generally, however, HMOs are, or are usually, domestic premises originally designed for occupation by one family, which have been converted for occupation by a number of separate families or individuals. This process, which almost inevitably involves the sharing of bathing or kitchen facilities, and the use of parts of the premises for purposes for which they were not originally designed, raises obvious potential problems in terms not just of the amenity but also of the safety of the premises. In addition, government and Parliament have seen the need to make special provision in respect of HMOs because of the regrettable fact that it is often persons and families most in need of social protection, including families with young children, who find themselves obliged to occupy housing that, in the main, is likely to be much less adequate than purpose-built flats or houses.[3]These problems, and the special attention that they justify to be given to HMOs, have been graphically recognised by this court. In Rogers v Islington LBC (1999) 32 HLR 138 at p 140 Nourse LJ quoted a passage from the Encyclopaedia of Housing Law and Practice , and then added some comment of his own:
" 'Since the first controls were introduced it has been recognised that HMOs represent a particular housing problem, and the further powers included in this part of the Act are a recognition that the problem still continues. It is currently estimated that there are about 638,000 HMOs in England and Wales. According to the English House Condition Survey in 1993, four out of 10 HMOs were unfit for human habitation. A study for the Campaign for Bedsit Rights by G Randall estimated that the chances of being killed or injured by fire in an HMO are 28 times higher than for residents of other dwellings'. The high or very high risks from fire to occupants of HMOs is confirmed by the study entitled "
Fire Risk in HMOs", a summary report to the Department of the Environment, Transport and the Regions prepared by Entec U.K.Ltd in November 1997. HMOs can also present a number of other risks to the health and safety of those who live in them, such as structural instability, disrepair, damp, inadequate heating, lighting or ventilation and unsatisfactory kitchen, washing and lavatory facilities. It is of the greatest importance to the good of the occupants that houses which ought to be treated as HMOs do not escape the statutory control."[4]Parliament has long recognised the need to guard against such dangers, by giving to local housing authorities [LHAs] significant powers of control over the activities of those who own and manage HMOs. Such powers were first effectively included in Part IV of the Housing Act 1969, which was consolidated into Part XI of the Housing Act 1985 [the 1985 Act]. The present scheme, with which this appeal is concerned, is an expanded version of the original scheme, that was introduced into the 1985 Act by amendment by the Housing Act 1996. It will be convenient next to set out the main features of that scheme. Statutory control over HMOs[5]The lynch-pin of control over HMOs is the power of an LHA to make a registration scheme that requires HMOs to be registered with the LHA. The scheme will contain "control provisions" regulating the property (1985 Act, ss 346-347). The LHA can either produce its own scheme, subject to confirmation by the Secretary of State, or can adopt a model scheme drawn up by the Secretary of State (1985 Act, s 346B). The rules that an LHA may follow in deciding whether to register particular premises are contained in s 348 of the 1985 Act, and need to be set out in full as they are crucial in this appeal. Section 348 reads as follows:(1) Control provisions may enable the local authority, on an application for first registration of a house or a renewal or variation of registration- (a) to refuse the application on the ground that the house is unsuitable and incapable of being made suitable for such occupation as would be permitted if the application were granted; (b) to refuse the application on the ground that the person having control of the house or the person intended to be the person managing the house is not a fit and proper person; (c) to require as a condition of granting the application that such works as will make the house suitable for such occupation as would be permitted if the application were granted are executed within such time as the authority may determine: (d) to impose such conditions relating to the management of the house during the period of registration as the authority may determine.(2) Control provisions shall provide that the local housing authority shall give an applicant a written statement of their reasons where they- (a) refuse to grant his application for their first registration or for a renewal or variation of registration, (b) require the execution of works as a condition of granting such an application, or (c) impose conditions relating to the management of the house.(3) Where the local housing authority- (a) notify an applicant that they refuse to grant his application for first registration or for the renewal or variation of a registration, (b) notify an applicant that they require the execution of works as a condition of granting such an application, (c) notify an applicant that they intend to impose conditions relating to the management of the house, or (d) do not within five weeks of receiving the application, or such longer period as may be agreed in writing between the authority and the applicant, register the house or vary or renew the registration in accordance with the application, the applicant may, within 21 days of being so notified or of the end of the period mentioned in paragraph (d), or such longer period as the authority may in writing allow, appeal to the county court.(4) On appeal the court may confirm, reverse or vary the decision of the authority.(5) Where the decision of the authority was a refusal- (a) to grant an application for first registration of a house, or (b) for the renewal or variation of the registration, the court may direct the authority to grant the application as made or as varied in such manner as the court may direct[6]The provisions as to registration schemes are supplemented by a wide range of further powers on the part of the LHA, which apply to HMOs whether they are registered or not. These include powers to require the execution of works to render the premises fit for the number of occupants (1985 Act, s 352); and powers to require the execution of works to repair failures to comply with a management code drawn up by the Secretary of State under s 369 of the 1985 Act (1985 Act, s 372). It is an offence under s376 of the 1985 Act for the person on whom either type of notice has been served wilfully to fail to comply with it. The owner of an HMO additionally remains bound by the general housing and other law: including, relevantly to the present case, powers on the part of the LHA to require repairs to houses that are unfit for human habitation (1985 Act, s 189); and the abatement of statutory nuisances (Environmental Protection Act 1990, s 80). The scheme operated by Brent LBC[7]In the present case the appellants [Brent] adopted a scheme confirmed by the Secretary of State under s346B. That sets out "Conditions for Registration", which reproduce verbatim the four sub-sections, (a)-(d), of section 348(1), but prefaced them with the words "The authority may, on an application for first registration of a house or a renewal of [sic] variation of a registration" It will be observed that this formulation applies the apparently facultative expression "may" to each of the LHA's powers: in contrast to the terms of section 348(1) itself, which used the word "may" in relation to the types of power that might be included in the scheme, rather than to the content of those powers once so included. It will be necessary to say something more of that in due course.[8]Neither the 1985 Act nor the model scheme provides any definition of, or guidance in relation to, the concept of "fit and proper person" in section 348(1)(b). That is provided in a separate Brent policy document, which in relevant part reads as follows:
"the applicant's suitability as a "fit and proper" person will be judged against the following criteria: 1. Is the landlord known to have been convicted by this Authority for non compliance with substantial enforcement notices i.e. s190, s189 and s352 in the past five years? 2. Is the landlord known to have had work in default carried out (not with their agreement) of substantial enforcement notices i.e s190, s189 and s352 by this Authority in the past five years. 3. Is the landlord or any of his employees known by this Authority to have been convicted of any charges relating to harassment and illegal eviction within the past five years? 4. Is the applicant known by this Authority to have been the owner or manager of a house subject to a Control Order made under section 379 of the Housing Act 1985 (as amended) in the past five years? 5. Is the landlord known to have been prosecuted by this Authority for failure to comply with section 372 of the Housing Act 1985 (as amended) in the past five years? An applicant for HMO Registration will be required to answer these questions when completing an application form for registration, variation of registration or reregistration. If the applicant answers "yes" to one or more of the above questions, the applicant will normally fail the test for fit and proper person and registration will be refused. The main aim is to retain well-managed and well-maintained HMOs in the Borough. As such the emphasis of this policy is to encourage landlords to appoint able and responsible managers wherever possible when registration is refused. Private Housing Services must be satisfied that the new manager has full and effective control of the premises in terms of its letting and day to day management."
[9]It was under this scheme that Brent considered Mr Reynolds's application to register an HMO. To Mr Reynolds and his application I must now turn. Mr Reynolds and his application[10]We were told, as was the judge, that Mr Reynolds has been in business as a landlord for 25 years. At present he owns, and wishes to manage, two HMOs falling within the area of responsibility of Brent, 18 Lechmere Road and 29 Anson Road. The present application concerns 18 Lechmere Road. Brent's policy as to registration, already referred to, was adopted in May 2000. In June 2000, and again in July 2000, Brent asked Mr Reynolds to apply for registration of 18 Lechmere Road, both requests being hand-delivered to him at the premises. He took no steps to register, and therefore Brent issued a summons, returnable in October 2000, seeking to compel his compliance. Before the return date for the summons an application to register was received on 29 September 2000.[11]The application form required answers to questions that corresponded to the five issues or tests by which Brent was to consider whether a person was fit and proper, which are set out in paragraph 8 above. In respect of question 1 the applicant gave no answer. He answered affirmatively to questions 2 and 5, and negatively to questions 3 and 4. All of his replies were correct. He should, however, have also replied, and replied affirmatively, to question 1. That was because Mr Reynolds had a substantial record of offences in relation to HMOs in the period immediately preceding his application. Since that record is important to the issues in this appeal it is necessary to set it out, by reference to the statutory obligations of those owning or managing HMOs that are summarised in paragraph 6 above.[12]Between February and September 1999 Mr Reynolds was convicted of six offences in relation to HMOs, and fined a total of £5,550. Those included three offences of failing to comply with notices under s352 of the 1985 Act; one offence of failing to comply with a notice under s189 of the 1985 Act; one offence of failing to comply with a notice under s372 of the 1985 Act; and one offence of failing to comply with notices served under section 80 of the Environmental Protection Act. Three of these offences were committed in respect of the property with which this appeal is concerned; three were committed in respect of 29 Anson Road. The judge was well justified in commenting that Mr Reynolds has a formidable record of failure to comply as a manager of a house in multiple occupation.[13]On 1 November 2000 Brent rejected Mr Reynolds's application for registration. The officer of the council who wrote to Mr Reynolds informing him of the decision drew attention to Brent's criteria for determining whether an applicant was a fit and proper person for the purposes of the 1985 Act; referred to the record of convictions set out above and to the fact that Brent had had to carry out work at the properties in default of Mr Reynolds's compliance with notices; and concluded that because the criteria of unfitness set out in the policy therefore applied to Mr Reynolds "I have no alternative but to refuse the application". Mr Reynolds was told that if the property was to remain in multiple occupation he would have to appoint a suitable person to manage the property, who would have to make a new application on his own behalf.[14]In response to this refusal Mr Reynolds, who has been advised by solicitors throughout, caused them to write to Brent suggesting a "probationary" period, during which Mr Reynolds should be permitted to manage the property subject to nothing occurring to which Brent took objection. A Mr Russell, the officer responsible for dealing with the matter on behalf of Brent, describes in his evidence how, on receipt of that proposal, he had consulted the officer dealing directly with Mr Reynolds's properties, and also the Senior Environmental Health Officer, and continues:
"the decision to refuse registration of [Mr Reynolds] was not reversed because of [Mr Reynolds's] history of not complying with Notices and total disregard for the condition of the property and the safety of those living in them."
Mr Russell informed Mr Reynolds's solicitors of that decision in a letter dated 30 November 2000, the relevant part of which read:
"I note your suggestion that a trial or probationary period of registration be considered. After weighing the above matters [that is, Mr Reynolds's record] and following discussions with the case officer for both properties I confirm that the original refusal of registration…must stand."
[15]As his solicitors had foreshadowed in the correspondence, Mr Reynolds then exercised his right to appeal to the county court, under section 348(3)(a) of the 1985 Act. Before describing the course and outcome of that appeal, it is necessary to say something generally about the nature of such an appeal. The nature of the appeal to the county court[16]Mr Arden QC, who appeared before us for Brent, accepted that the appeal was a complete rehearing. Accordingly, the judge hears evidence and makes up his own mind on the facts; and his task is to make his own decision on the application, in place of that made by the LHA, and not merely to act as a court of review of that LHA decision. That said, however, the county court's jurisdiction is subject to the very significant condition that the court should pay great attention to any view expressed by the LHA, and should be slow to disagree with it. That principle is to be found in the judgments of the majority of this court in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614, an authority brought to our attention through its citation in the judgment of Wilson J in Sutton LBC v Davis [1994] 1 FLR 737. The appeal in this case[17]Those of Mr Reynolds's grounds of appeal that were maintained before the judge contended that Brent had unreasonably rejected the compromise of a probationary period, and had failed to consider whether it was appropriate to approve the application subject to conditions. Evidence was given on both sides by written statement, without cross-examination, and submissions made by counsel. We do not have a transcript of the judge's judgment, but there is an agreed note, which has been certified by the judge. I set out the paragraphs of the judgment relevant to this appeal, to which I have for convenience added identifying letters. The judgment of Judge Krikler[18][A] The Appellant has a formidable record of failure to comply as a manager of a house in multiple occupation. [B] [Counsel for Mr Reynolds] says that we put our hands up to all of that, but rely on section 348(d). What he's saying effectively is that it's entirely understandable that as a result of breaches under section 348(b) the Respondent took the view that the person managing the house was not a fit and proper person – but in subsection (d) – he goes on to say – that there is an indication in the statute to say we will register but only if you comply with certain conditions. [C] Of course, the effect of a refusal can be to cause the owner a great deal of expense because if he is found to be unfit he has two courses – well there are effectively three courses – open to him. He can either return the house to single occupancy, appoint a new person to manage the premises on his behalf or thirdly he can always sell the property. [D] But assuming, as in this case, that the way in which a person has chosen to earn his living is to invest in property and to manage a house in multiple occupation – if he's forced to employ another manager he will lose 10-15% of that income (so I'm told and there is no reason to believe this is in dispute) because any manager will require remuneration. And that over a period of five years, being the period of registration, this will result in a deprivation of many thousands of pounds and would in effect be a further punishment. [E] [Counsel for Brent] says the effect on his income is not a relevant part of the consideration. It seems to me it must be a relevant consideration because that is the effect of refusal to register. The consequences of refusal must be a relevant consideration. [F] The proviso in section 348 must be given some meaning and where Mr Reynolds has not previously been refused any registration, it does seem sensible to say that in the light of his convictions we are not going to give you a license because of your past. If the statute ran out at subsection (c), then that would be an end to the matter. But where there is a proviso that enables conditions to be attached it is open to say that conditions have not been tried. If conditions are imposed any future conduct in breach would result in the revocation of registration. [G] In these circumstances I propose to allow the appeal to this extent: I accept that Mr Reynolds is unfit but it seems to me that Mr Reynolds is entitled to say that section 348(d) has not been considered and there should be some relaxation of (b) and (d). In those circumstances and to that extent the appeal is allowed. [H][19]The terms of this sub-section are of the first importance in this appeal. In particular, it will have been noted that the judge decided the appeal largely on the basis that Brent had not considered section 348(1)(d), which he described as a "proviso" to the rest of the sub-section (paragraph [F]); and appears to have thought that there was an obligation on the LHA to consider the imposition of conditions, as opposed to straight refusal, in every case. In order to understand this point it will be necessary to say something more about the sub-section.[20]Although the arrangement of the sub-section as a series of sub-paragraphs may give the appearance of a code, the parts of which are related to and intended to operate in conjunction with each other, inspection of the separate sub-paragraphs indicates that they address very different cases. The sub-paragraphs can be analysed in turn:(a) addresses a case where the property is incapable of being made suitable for occupation. Refusal of the application would appear to be the only rational reaction on the part of the LHA;(b) addresses a case where the manager is not a fit and proper person. Here again, it is difficult to see that refusal is a course not open to the LHA;(c) addresses a case where, in contradistiction to (a), the property is capable of being made suitable for occupation, in which case the LHA can grant the application on condition that the house is so made suitable;(d) is very different. It enables the LHA, on registration, to impose conditions relating to the management of the premises. There is no reason to think, as was argued before us, that (d) is directed at a case where the intended manager is found not to be a fit and proper person, but nonetheless the power under (b) is not exercised. Sub-clause (d) is perfectly general in its operation, exercisable only when registration has been granted, and thus unlikely to be directed at a case where there is fulfilled a pre-condition for non-registration, that the manager is not a fit and proper person.[21]This view of the role of sub-clause (d) is reinforced by reference to its statutory origins. The original scheme as set out in Part IV of the Housing Act 1969, and consolidated in Part XI of the 1985 Act, only contained sub-clauses (a)-(c), in substance though not in exact wording in the form that they now take in the 1985 Act as a result of the 1996 amendments. But the power contained in sub-clause (d) was a new power, only introduced into the scheme in 1996. It is therefore very difficult to think, and certainly very difficult so to think without specific statutory provision to that effect, that sub-clause (d) was intended either to qualify sub-clause (b), or to reduce the powers of the LHA in dealing with the case addressed in sub-clause (b) of a manager who is not fit and proper. If that were the case, an explanation would be required of how the scheme had operated without the (d) provision from 1969 to 1996, and why Parliament had decided to interfere with the LHA's powers under that scheme.[22]In short, (d) is plainly an addition to the powers of the LHA, and not a qualification of them. One beneficial power that the new sub-clause gives to the LHA is to enable it, in a case where it is uncertain about the capabilities of the proposed manager but not to the extent of making a finding of unfitness, to register subject to conditions that will contain whatever failings have been identified; or, in a more extreme case where the proposed manager is unfit, to permit the registration of the property subject to the substitution of a different manager.[23]However, despite these uses to which sub-clause (d) can be put in a suitable case, I cannot agree with the judge's characterisation of the sub-clause as a "proviso" to the rest of the sub-section. Rather, it is a free-standing and separate provision. Nor is there any justification for considering that, just because it is there, it must be considered in every case; or indeed that, as the judge seems to have come near to holding, a decision will be defective if it does not apply sub-clause (d) in a case that prima facie falls under sub-clause (b). The question of what work sub-section (d) has to do, raised by the judge in paragraph [F], is easily answered by pointing to its status as an addition to the other powers of the LHA, as described above.[24]I therefore consider that the judge was mistaken in his approach to the construction of section 348(1), and for that reason alone the judgment cannot stand. There are, however, further grounds on which I am constrained to identify errors in his judgment, which I will now set out. I should emphasise that in so doing I entirely respect the judge's function in conducting a complete rehearing. The issues that follow are matters in which, in conducting that enquiry, the judge erred in law. Further grounds for allowing the appeal[25]First, even if Brent were under an obligation to consider the imposition of conditions, the judge was mistaken on the evidence in thinking that Brent did not give consideration to that issue. The only conditions that were sought or suggested were of the same type as those that the judge eventually accepted, in paragraph [H] of the judgment, relating to future good behaviour, or what Mr Reynolds's solicitors described as a period of probation. But Brent's evidence referred to in paragraph 14 above, and unchallenged before the judge, was that that proposal had been considered. It was of course open to the judge, on a complete rehearing, to revisit that proposal. What was not open to him on the evidence was to reject Brent's decision on the ground, set out in paragraph [F], that Brent had not considered the proposal at all.[26]Second, the conditions offered by Mr Reynolds's solicitors, though vaguely stated, were in terms of general good behaviour, and thus a good deal more onerous than those applied by the judge, which simply required Mr Reynolds to do that which he was already bound by statute to do. I cannot accept that the latter fall within the category of "conditions relating to the management of the house" contained in sub-clause (d). By conferring additional powers on the LHA, Parliament cannot have contemplated those powers being used simply to secure compliance with statutory obligations. That consideration is reinforced by the fact pointed out during argument by Mummery LJ that the effect of the judge's order is to make Mr Reynolds doubly liable for any further breach of the statute: once under whatever statutory provision that he breaches; and again under section 348G(1) for failing to comply with the provision of the registration scheme introduced by the judge that requires him to obey the law.[27]Third, there was no criticism before the judge of Brent's scheme itself. Before us, it was argued that the scheme was defective, in respect of the test for fit and proper person, because it applied the criteria without admitting of any exceptions; but as the extract set out in paragraph 8 above demonstrates, fulfilment of the criteria only normally, but not necessarily, leads to a finding of unfitness. As pointed out in paragraph 7 above, the scheme by its wording appeared to make it only permissive for Brent to refuse an application on grounds that the manager was not a fit and proper person. However, for the reasons described in paragraph 20 above, that is not the statutory intention, since section 348(1)(b) of the 1985 Act appears to envisage refusal in relation to a particular manager always following from a finding of unfitness. The judge addressed himself to the statute, not to the terms of the scheme, and he was correct to do so. The judge found that Mr Reynolds was unfit (see paragraph [G] of the judgment), and therefore on a correct understanding of the statutory scheme should have found that the proper course was to refuse registration of a property managed by him..[28]Fourth, save for his mistaken belief that Brent had given no consideration to the probation proposal, the judge did not refer to, and gave no weight to, the policy and objectives of Brent. In the light of the guidance given by this court in Sagnata (on which see paragraph 16 above), he was wrong to disregard those matters.[29]Fifth, the judge's failure to give weight to the policy of Brent and the reasons for its decision seems to have caused him to give no consideration at all to the interests of the tenants of the property. It is clear from the statutory scheme that that is a factor that must be in the forefront of the mind of any court dealing with an HMO case. I venture to repeat one sentence from the judgment of this court in Rogers v Islington LBC that is referred to in paragraph 3 above:
"It is of the greatest importance to the good of the occupants that houses that ought to be treated as HMOs do not escape the statutory control."

The judge's failure to avert to this issue must render his judgment unsustainable.

[30]Sixth, the judge relied on considerations that were, in the circumstances, irrelevant to his decision. Prominent in his reasoning is the financial handicap to Mr Reynolds's business as a landlord that would follow from a refusal of registration: see paragraphs [D] and [E] of the judgment. But in a case where the manager is found to be unfit, it is impossible to see how, in the framework of the 1985 Act and of its overriding policy, the necessary precaution of refusal of registration can be withheld because of considerations of financial difficulty. The efficacy of conditions[31]The foregoing considerations lead inevitably to the allowing of this appeal. In his argument before us Mr Frith, for Mr Reynolds, argued that the judge's decision to permit registration with the imposition of conditions had been an approach reasonably open to him, because it would promote the policy of retaining properly managed HMOs within the housing stock, whilst striking a balance between the interests of the landlord and those of the tenants. As has been seen from the note of his judgment, that is not the basis upon which the judge approached the case, and he therefore did not consider the issue, crucial to this argument, of whether the imposition of conditions would in fact produce good management. I do not, therefore, consider that this argument can properly be raised now. However, since it formed a significant element in the submissions that we received I will say something in relation to it.[32]As Mr Frith pointed out, there was no evidence before the judge to indicate that 18 Lechmere Road was unfit for habitation. That is not surprising, since that was not the issue before him. There was, however, substantial evidence to raise the most serious doubts as to whether good management would obtain under the future direction of Mr Reynolds. I briefly summarise the most obvious points, over and above the conclusions that could legitimately be drawn from Mr Reynolds's history of offending. i) Mr Reynolds delayed in applying to register 18 Lechmere Road, and only did so under threat of a court summons. ii) When he did make his application he behaved evasively, in that he did not reply to the question seeking information about convictions under section 352 of the 1985 Act. iii) At least at the time of the county court hearing Mr Reynolds had still not applied to register 29 Anson Road. Mr Reynolds's solicitors exhibited before the judge, and did not seek to contradict, a letter from Brent stating that works at 29 Anson Road had been outstanding for three years and the premises were now in a state prejudicial to the health of the occupying tenants. iv) In his evidence before the judge Mr Reynolds complained that Brent were conducting a vendetta against him. To demonstrate that, he referred to a note that Brent had attached to the premises requiring admission to a room at 29 Anson Road and stating that otherwise entry would be forced. This note had previously been complained of by Mr Reynolds's solicitors in a letter presumably written on his instructions, in terms that fell far short of acknowledging Mr Reynold's statutory responsibilities. Before the judge the unchallenged evidence of Brent was that there had been repeated difficulties about access to 29 Anson Road over a prolonged period, and that the note had been resorted to after repeated oral requests for admission, and after unsuccessful attempts to enforce by consent a Magistrates Court Entry Warrant that Brent had been obliged to obtain. This history, and the aggressive posture adopted in respect of it by Mr Reynolds and his solicitors, persisted in in evidence before the judge, hardly boded well for future co-operation with the LHA, or for appreciation by Mr Reynolds of his duties as a manager.[33]Even, therefore, if the judge had embarked on the enquiry now urged by Mr Reynolds, it is very difficult to see how he could have resolved the issue in Mr Reynolds's favour. Disposal of the appeal[34]For the reasons given, I would allow the appeal. The judge having reached his conclusion on the basis of errors of law, it falls to this court to make such order as would properly have been open to him. Rather than simply quash his decision, and thus require Mr Reynolds, if he wishes to pursue his interests in proper form, to cause another application to be made by a fit manager, I would substitute an order that the application should be approved subject to the appointment by Mr Reynolds of a manager who, and whose terms of appointment, are acceptable to Brent. It would further be open to Brent to arrange for such monitoring of and reporting in relation to the management of 18 Lechmere Road as seem to it reasonably necessary. I have in mind in that connexion that, in view of the history, any expense of such extra arrangements should be borne by Mr Reynolds and not by the local tax payers of Brent.[35]Such arrangements, if they can be carried through, will in my view best achieve the proper objective of Brent's policy set out in paragraph 8 above, to encourage landlords to appoint able and responsible managers wherever possible when registration is refused. Mummery LJ: I agree. Lord Woolf CJ: I also agree.

Order

The local authority shall register Mr Reynolds as a manager on terms that he complies strictly with each and every statutory requirement under the Housing Act 1985 and the Environment Protection Act 1990 An analysis of section 348(1) of the 1985 Act Order: Appeal allowed with costs summarily assessed at £20,000. (Order not part of approved judgment)

Cited in 18 later judgments

and 9 more of the most senior