“When deciding whether the proposed licence holder is a fit and proper person to be the licence holder the local housing authority must take into consideration whether the person has control of the HMO and the extent to which he has control over it.”
“This tribunal’s duty is to determine whether there are any grounds for saying that this local authority has made an incorrect decision when considering the provisions of section 64 and section 66 of the 2004 Act.”
“Indigo is named as both a licence holder and manager. It is agreed by the respondent that it was not the manager when the application for a licence was made. The respondent can only say that there is no evidence to suggest that Indigo is not a fit and proper person. The evidence is that Indigo is owned by Mr Lawson. There is clear evidence that Mr Lawson’s management qualities are not acceptable which may or may not be true but has simply not been investigated. Assumptions have been made which, according to the evidence submitted, did not involve any such investigation.”
“30. [The authority] … should have considered whether there were suitable management structures and funding arrangements in place and, in addition, whether the proposed management arrangements were satisfactory. Those considerations should have involved an investigation into the applicant’s allegations. It is understood that the other freehold owners did not object but they do not live at the property and may have been completely unaware of the problems faced by the applicant.”
“33. Thus, on the evidence produced by the parties, the tribunal is satisfied that while a licence could be issued to the three other freehold owners, assuming that the applicant still does not want to be a licensee, it is not satisfied either that there are suitable management structures and/or funding arrangements in place, or that either Indigo or Mr Lawson are either fit and proper or “satisfactory persons or managers”
“In other words, the Tribunal must be satisfied – even before hearing from the person appealing – that the local authority has exercised its powers in accordance with the primary legislation.”
“The [authority] lost the case because it apparently did not understand the law i.e. that it was a re-hearing which meant, in effect, that it had to go through all the statutory requirements and satisfy the tribunal that it had complied with them. All of them. It failed to do so for the reasons set out in the decision.”
“45. It is right in all cases that the Magistrates’ Court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight that magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.”
“If the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden. I regard this last consideration as one of great importance for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case and the Court should be very slow to draw any such influence from the language of a statute.”
“The FTT determines an appellant’s entitlement to a right or privilege conferred by a licence granted under the legislation (or the removal of that right in the event of revocation). It is impossible to see how the legal analysis can be any different when a decision of the same nature is previously taken by the licensing authority from which the appeal is brought.”
“… the position of the department is not to be regarded as adverse to that of the claimant. In this case too the process is inquisitorial, not adversarial. In this situation there is no formal burden of proof on either side. The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the department must contribute.”
“What emerges from all this is a cooperative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.”
“Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal.”
“That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.”
“The only unusual feature about this type of appeal is that all parties have carte blanche to call evidence. It does not, however, follow that the respondent to the appeal should bear the responsibility of showing that the order should be upheld and so should be required to present its case first.”
“It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used. It is an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do. In a case such as the present an applicant for a justices' licence under the 1964 Act seeks permission to run a public house. Thus before granting a licence justices (or the Crown Court on appeal) must think the applicant has the personal qualities and professional qualifications reasonably required of a person seeking to run the particular public house for which he or she seeks a licence. The judgment must be made not only in relation to the particular applicant but also in relation to the particular premises. But the focus is on the particular applicant's suitability to run the particular public house.”
“A licence holder (or manager of a house) must have the personal qualities and qualifications reasonably required of a person seeking to have the responsibilities of holding a licence under that legislation for the premises in question, including his or her ability and willingness to comply with relevant requirements of housing law and landlord and tenant law, which comprise those of the licensing regime itself, such as the proper provision of information in a licence application.”