The Upper Tribunal’s decision in Fletcher v Portsmouth City Council [2026] UKUT 234 (LC) provides important guidance on the scope of local authorities’ powers to impose conditions on HMO licences. I represented the appellants, Simon and Iva Fletcher, before the Upper Tribunal in this appeal. Although the appeal concerned several specific licence conditions, the judgment’s significance extends much further. It addresses the extent to which local authorities may rely on standardised licensing conditions and emphasises the need for a genuine exercise of discretion in each case.
The appeal arose from a licence granted by Portsmouth City Council in respect of a licensed HMO in Portsmouth. The licence contained thirty-six conditions, forming part of a standard suite of conditions applied across the authority’s licensing scheme. Whilst some amendments had been made by the First-tier Tribunal, the majority of the challenged conditions remained in force, giving rise to the appeal.
The Tribunal’s analysis began with section 67 of the Housing Act 2004, which permits a local housing authority to impose such conditions as it considers appropriate to regulate the management, use and occupation of the house concerned, together with its condition and contents. Looking at the statutory scheme as a whole, Judge Johns KC emphasised that the legislation is directed towards the licensing of an individual property. Sections 64, 65 and 67 focus on “the house” being licensed rather than HMOs generally. Against that background, he held that “the appropriateness of conditions must be judged by reference to the property being licensed for use as an HMO“.
That conclusion proved central to the Tribunal’s consideration of Portsmouth City Council’s use of standard licence conditions. The Tribunal accepted that adopting standardised conditions offers clear practical advantages. However, it rejected any suggestion that administrative convenience could replace the exercise of statutory judgment. Judge Johns KC observed:
“I do not ignore the practicality for a local housing authority of having standard conditions. But, in my judgment, the need to have regard to the house being licensed means they should represent a suite of conditions to choose from and modify as appropriate; not a one-size-fits-all regime.”
This aspect of the judgment is likely to be particularly significant. Many local authorities operate standard-form licensing schemes. The decision makes clear that standard conditions may serve as a starting point, but they cannot be imposed automatically. The authority must demonstrate why the condition is appropriate for the particular property and circumstances under consideration.
The Tribunal also provided important guidance on conditions relating to tenancy arrangements. One condition required landlords to provide written tenancy agreements containing specified provisions, including inventories, deposit arrangements and other matters. The Council argued that the condition merely gave effect to the mandatory requirement in Schedule 4 of the Housing Act 2004 to provide occupiers with a written statement of terms. The Tribunal disagreed. Judge Johns KC held that the statutory requirement is concerned only with the provision of a written record of terms and does not authorise a local authority to dictate the content of private contractual arrangements. As he explained:
“it is plain from para.1(5) that it is concerned only with a requirement to supply a written statement of terms, and does not extend to prescribing the substance or scope of those terms.”
The condition was therefore amended to reflect only the mandatory statutory requirement. The decision confirms that licensing powers should not be used to regulate the substantive terms of tenancy agreements or to compel parties to adopt particular contractual provisions.
Another successful challenge concerned licence conditions requiring documents to be produced to the Council “on demand”. The Housing Act 2004 already provides a detailed statutory mechanism for obtaining documents under section 235, including procedural safeguards and specific notice requirements. The Tribunal held that any attempt to create a parallel document-production regime through licence conditions required clear justification. Judge Johns KC stated:
‘Given s.235 and its safeguards, it does seem to me that conditions which provide for production of documents on demand outside of s.235 at the very least need particular justification.’
He later observed that there was ‘no real justification’ for conditions that covered the same ground as section 235 ‘but without its safeguards’. The relevant conditions were therefore varied to remove the requirement for production outside the statutory framework.
The Tribunal also considered conditions on electrical safety. The Council sought to incorporate detailed requirements alongside obligations already imposed by the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. Whilst acknowledging the importance of electrical safety, the Tribunal found that the licence condition neither accurately reflected the statutory regime nor added practical value. Judge Johns KC observed:
“I do not consider it is necessary or appropriate to use a condition in a licence merely to ensure a licence holder is aware of other obligations.”.
He further noted that the condition reflected the statutory obligations only in part and was therefore “prone to create confusion. Including as to enforcement.” The condition was reduced to the mandatory wording required by Schedule 4.
Not every ground succeeded. The Tribunal rejected the argument that the challenged conditions breached regulation 15 of the Provision of Services Regulations 2009. Applying the distinction drawn by the Supreme Court in Hemming v Westminster City Council, it held that those Regulations are concerned with the authorisation process itself rather than conditions regulating the subsequent operation of an authorised activity. The licence conditions therefore fell outside the scope of regulation 15..
What emerges from the judgment is a consistent theme. The Tribunal repeatedly emphasised that licence conditions must be supported by a proper statutory justification and directed towards the circumstances of the individual property. As Judge Johns KC succinctly stated:
“The appropriateness of a condition must be judged, it seems to me, in light of the justification offered for it.”.
That principle informed the Tribunal’s treatment of each successful ground of appeal. Conditions failed not because the Council lacked power to impose licence conditions generally, but because the particular conditions could not be adequately justified within the statutory framework.
Conclusion
Fletcher is a significant authority on the scope of local authority powers under section 67 of the Housing Act 2004. The decision confirms that licence conditions must be justified by reference to the particular property being licensed and cannot be defended solely on the basis of policy, administrative convenience or standardised practice. It also provides important guidance on the limits of licensing powers, particularly where conditions seek to regulate contractual arrangements, duplicate statutory enforcement mechanisms or restate obligations imposed under separate regulatory regimes..
The judgment is likely to have implications well beyond Portsmouth. Authorities operating standard-form licensing schemes will need to ensure that conditions are selected and adapted by reference to the individual property and the purpose for which the licensing power is exercised. As Judge Johns KC observed, standard conditions may serve a legitimate function, but they should be “a suite of conditions to choose from and modify as appropriate; not a one-size-fits-all regime”.
Expert advice is the best way to find out whether an action you have taken plan to take might amount to an offence, and what the consequences of that might be. Freemans solicitors are a leading provider of Rent Repayment Order and HMO advice and our experienced team will be happy to help with your enquiry. We can advise on whether a property counts as a converted block of flats HMO and what steps you might be able to take to change this.
Contact Michael Field, Karol Hart or Karol Hart on 020 7935 3522 or hmolawyers@freemanssolicitors.net
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