Luton Borough Council v Altavon Luton Ltd & Ors [2019] EWHC 2415 (Admin)
On 15 November 2017 Luton Borough Council laid informations against Altavon Luton Ltd, Mr Sajid Sayed (alleged director) and Ms Kate Bukrashvilli (alleged officer) alleging that on 16 May 2017 each had control or management of an unlicensed house in multiple occupancy at 38 Russell Rise, Luton. Four informations alleged breaches of the Management of Houses in Multiple Occupation (England) Regulations 2006 and one alleged breach of section 72(1) of the Housing Act 2004. Section 127(1) of the 1980 Act required informations to be laid within six months from the time when the offence was committed. District Judge Dodd dismissed the informations as time-barred.
The evidence before the district judge showed that Mr Paul Fountain, a private-sector housing officer employed by the appellant, first visited 38 Russell Rise on 20 April 2017 following a complaint. He spoke to someone on the doorstep but did not enter. On 21 April he returned with a colleague and left questionnaires to be completed by occupiers, which he collected on 24 April. On 25 April he received a call from Mr Anas Miah, the freeholder from whom Altavon Luton Ltd rented the property, who said he could get no response from the company about the property having been turned into an HMO. On 12 May Mr Fountain received a call from Mr Sayed on behalf of the company asking how to resolve the issue of the unlicensed HMO; Mr Fountain cautioned him under caution and told him he could not evict tenants as that itself would be an offence. Mr Fountain had earlier been informed by a tenant of an attempted eviction. In April Mr Fountain had also spoken to Ms Bukrashvilli and, according to his statement, told her that “as” the property was an unlicensed HMO a section 21 eviction notice could not be issued; in cross-examination he said he had meant to say “if” rather than “as”. Mr Fountain next visited on either 15 or 16 May 2017; his statement said the 15th but in evidence he said the 16th because he had not been at work on the 15th. On that visit he entered, inspected and took photographs. The camera displayed a date of 16 May.
The district judge found that Mr Fountain was aware that the offences alleged were being committed in April or at the very latest by 12 May 2017 when he spoke to Mr Sayed under caution. She found the offences were continuing offences but held that section 127 required the information to be laid within six months of the time “when the offences came to light”. The district judge was of the opinion that time should run from when the local authority became aware of the offences and that the offence could not be allowed to continue indefinitely. She rejected the appellant’s contention that the relevant date was 16 May when Mr Fountain entered, photographed and inspected the premises. She found that the offences came to the knowledge of the local authority well before 16 May, in April, and that the informations laid on 15 November were therefore outside the six-month time limit. The district judge stated that she accepted the photographs were date-stamped 16 May but said she did not consider seeing them would assist because their content was not relevant, only the date.
The appellant submitted that the offences were continuing offences and were continuing until the date Mr Fountain entered and inspected the property on 16 May 2017. The evidential detail necessary for informations relating to the regulatory offences would not have been known to Mr Fountain until he entered and inspected. Any earlier information would have represented incomplete knowledge insufficient to lay informations. The appellant relied on R (Thames Metropolitan Stipendiary Magistrate) ex parte London Borough of Hackney [1994] 158 JP 305, in which Simon Brown LJ held that Food Hygiene Regulations offences were continuing offences committed afresh each day the regulations were not complied with. The appellant argued that the fact the district judge found Mr Fountain knew or suspected the premises were being used for an unlawful purpose did not alter the fact that the property continued to be unlicensed and the offending continued.
The second respondent accepted the offences were continuing but relied on Royal Society for the Prevention of Cruelty to Animals v Dean Patrick Shane Webb and Diane Webb [2015] EWHC 3802 (Admin), in which the Divisional Court held that a complaint under the Animal Welfare Act 2006 arose when animals were seized, not when a veterinary statement was later submitted. It was submitted that Mr Fountain could have started his investigations and then developed them over time, but it was not for the appellant to proceed at its own pace and put matters off until it had decided the information had crystallised. The matter of complaint arose when Mr Fountain first attended in April or at the latest by 12 May when he spoke under caution to the second respondent. The third respondent adopted the second respondent’s submissions.
Lady Justice Nicola Davies, with whom Goss J agreed, held that the appeal should be allowed. The informations were not time-barred. The offences were undisputed to be of a continuing nature and continued until Mr Fountain’s entry into the property. The reasonable inference from the district judge’s findings was that she had accepted the appellant’s evidence that the last visit was on 16 May 2017, the date the photographs were taken. Section 127(1) required the information to be laid within six months from the time when the offence was committed. As these were continuing offences, as a matter of fact the offending continued until 16 May 2017 when Mr Fountain visited. Knowledge gained by him prior to that date was relevant in so far as it enabled him to place himself in a position where he had sufficient grounds to enter the property. The entry into and inspection of the property was necessary for the identification and detail of the breaches of the regulatory offences contained within the four informations. The information laid on 15 November 2017 was not time-barred; it was brought within the six-month time limit prescribed by section 127.
The Divisional Court distinguished Royal Society for the Prevention of Cruelty to Animals v Webb on the basis that it concerned a complaint relating to civil proceedings in respect of a seizure, not an information, and the Divisional Court in that case had accepted factual findings that the complaint arose on the date of seizure, in contrast with the present case where the alleged multi-occupancy of the property continued until the 16 May 2017 inspection.
The Divisional Court answered question 1 in the affirmative: the district judge did wrongly direct herself on the law regarding the nature of a continuing offence given that the offence was being repeated daily up until 16 May 2017, when the only proper inference was that the district judge accepted Mr Fountain’s visit had taken place. The district judge did not err in refusing to view the photographs (question 2) because she clearly accepted the photographs had been taken and accepted the appellant’s case as to when, namely 16 May 2017. Question 3 was answered by noting that the district judge had accepted the photographs were taken on 16 May, having previously accepted that photographs were taken on the date of Mr Fountain’s last visit.
The order of the district judge was set aside and the informations against each of the respondents were reinstated. The appellant sought an order for costs joint and several against all three respondents. The second and third respondents opposed the application, both being legally aided, and submitted that the appellant had been late in instituting the appeal, had initially named the wrong parties and had displayed a lack of attention. The Divisional Court considered the submissions and made no order as to costs.
In short, continuing Housing Act offences were committed daily until the date of the enforcement officer’s inspection and entry, so that the time limit under section 127 ran from that date and the informations were laid in time.
This was an appeal by way of case stated. There were three defendants: Alvaton Luton Ltd, a director, Sajid Sayed, and an officer of the company, Kate Bukrashvilli. Informations were laid against them on 15 November 2017 with the date of the offences being 16 May 2017. The informations alleged that the 3 had control and/or management of a house in multiple occupancy. Four offences were identified contrary to the Management of Houses in Multiple Occupation (England) Regulations 2006 and sections 234(3) and 72(1) of the Housing Act 2004.
It was the respondents’ case that the informations were out of time. Their submission was that the time should have run from April 2017 when the housing officer became aware of the situation in the property, or, in any event, that he had sufficient evidence to proceed before 16 May 2017.
The housing officer gave evidence that he needed to enter the premises to inspect and establish that it was an unlicensed HMO. He finally managed to do so on 15 or 16 May 2017.
The judge found that he was aware of the offences at the very latest by 12 May when he spoke to Mr Sayed on the phone. In that call, Mr Sayed asked how he could resolve the issue of the unlicensed HMO. In April questionnaires had been distributed to the tenants to establish whether the house required an HMO licence, they had been collected, and he had spoken to Kate Bukrashvilli.
The judge found that the offences were “continuing offences” and that s127 of the Magistrates Court Act 1980 required information to be laid within 6 months of the time “when the offences came to light”. In issue was how s127 applies to a continuing offence.
The appellant stated the evidential detail necessary for the informations in respect of the regulatory offences would not have been known to the officer until he entered into and inspected the premises. The information from phone calls and questionnaires would be insufficient. It was accepted that the relevant visit to the premises was 16 May 2017.
Held: as continuing offences, it follows that the offences were continuing until the officer’s entry into the premises. Knowledge gained by him before that date was relevant in so far as it enabled him to be in a position whereby he had sufficient grounds to enter the property. The point made by the appellant was accepted; that the entry was necessary for the identification and detail of the breaches of the regulatory offences. The information was not time-barred. The order of the district judge was set aside, and the informations against each respondent were re-instated.