House of Commons - Explanatory Note
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Clause 14: Revocation and variation of improvement notice

75.     Clause 14 provides for the revocation and variation of improvement notices.

76.     Subsection (1) requires an LHA to revoke an improvement notice if they are satisfied that the requirements of the notice have been complied with.

77.     Subsection (2) provides a discretionary power for an LHA to revoke an improvement notice. In the case of a notice served under clause 9 (in respect of a category 1 hazard), they may only do so if they are satisfied that there are special circumstances making it appropriate to revoke the notice.

78.     Subsection (3) provides that, where an LHA revokes only part of a notice that relates to a number of hazards, they may vary the remainder of the notice, as they consider appropriate.

79.     Subsection (4) enables an LHA to vary an improvement notice, either with the agreement of the person on whom it was served or, in the case of a suspended notice, to alter the time or events triggering the end of the suspension.

80.     Subsection (5) provides that a revocation comes into force when it is made.

81.     Subsections (6) and (7) provide that a variation of an improvement notice shall come into force when it is made if agreed by the person on whom it is served. If not so agreed, the notice will become operative 28 days after the date on which the decision was made or, if an appeal against a variation or revocation is made, it will not come into force until the appeal has been dealt with.

Clause 15: Review of suspended improvement notices

82.     Clause 15 requires an LHA to review a suspended improvement notice within a year of service of the notice, and at least annually thereafter. Subject to these requirements, LHAs may review suspended notices at any time. Copies of an LHA's decision on a review must be served on every person on whom the original notice was served, or a copy of it was required to be served.

Clause 16: Service of improvement notices etc. and related appeals

83.     Clause 16 gives effect to Schedule 1, which sets out the procedures for serving improvement notices, for revocation and variation, and for dealing with appeals.

Clause 17: Change in person liable to comply with improvement notice

84.     Clause 17 provides that, where a person who is liable to comply with an improvement notice and on whom a notice is served is succeeded by another person, that person is in the same position as if the notice had originally been served on him and as if he had taken the steps taken by the person on whom the notice was originally served.

85.     Subsection (4) spells out that, in the event of a change in the liable person, the period for complying with a notice or bringing an appeal is unaffected.

86.     Subsection (5) provides that, where the original recipient of the improvement notice has incurred liabilities, such as charges or fines, under Part 1, these liabilities remain with the original recipient and do not transfer to his successor.

87.     Subsection (7) provides that unless subsection (8) or (9) applies, the person who is liable will be the person having control of the premises. Subsection (8) provides that where the original recipient of the improvement notice was served as the person managing the premises any new person managing the premises will become the liable person. Subsection (9) provides that where the original recipient of the notice was served as the owner, the liable person will be the owner's successor in title.

Clause 18: Prohibition orders relating to category 1 hazards: duty of authority to make order

88.     Subsection (1) provides that, if a category 1 hazard exists on any residential premises, making a prohibition order is one of the courses of action available to an LHA in discharging its general duty under Clause 5 to take the most appropriate enforcement action to deal with a such a hazard, so long as the premises in respect of which the order is to be made are not the subject of an IMO or FMO under Part 4.

89.     Subsection (3) sets out the premises and common parts the use of which may be prohibited by an order.

90.     Subsection (4) enables the use of non-residential premises to be prohibited, but only if the deficiency giving rise to the hazard is located there and the prohibition is necessary for the health or safety of actual or potential residential occupiers.

91.     Subsection (6) provides that the operation of a notice may be suspended in accordance with clause 12.

Clause 19: Prohibition orders relating to category 2 hazards: power of authority to make order

92.     Subsection (1) provides a discretionary power for an LHA to make a prohibition order if it is satisfied that a category 2 hazard exists on residential premises and the premises in respect of which the order is to be made are not the subject of an IMO or FMO under Part 4.

93.     Subsection (3) applies subsections (3) and (4) of Clause 18, which set out the premises and common parts the use of which may be prohibited by an order, and enable the use of non-residential premises to be prohibited if the deficiency giving rise to the hazard is located there, and if the prohibition is necessary for the health or safety of actual or potential occupiers.

Clause 20: Contents of prohibition orders

94.     Clause 20 deals with the contents of prohibition orders. Such orders may prohibit the use of part or all of the premises for some or all purposes unless approved by the LHA; or occupation of the premises or part of them by a particular number of households or occupants, or by particular descriptions of persons, unless approved by the LHA.

95.     Subsection (2) provides that the order must specify, for each hazard to which it relates, whether the order is made under clause 18 or 19 (that is, whether the hazard is a category 1 or 2 hazard); the nature of the hazard, the deficiency giving rise to it and the premises where it exists; the premises the use of which is prohibited by the order; and the remedial action which, if carried out, would result in the revocation of the order by the LHA.

96.     Subsection (7) provides (in addition to the general right of appeal against prohibition orders in Part 3 of Schedule 2) a right of appeal, within 28 days of the date on which the decision was made, against an LHA's refusal to permit the use of the premises for all or any purposes while the prohibition order is in operation.

Clause 21: Suspension of prohibition orders

97.     Clause 21 provides for the suspension of a prohibition order at the LHA's discretion. For example, the order may be suspended until such time as a person of a particular description ceases to occupy the premises. The notice may specify an event, such as non-compliance with an undertaking given to the LHA by the person, on whom the notice is served, that will trigger the end of the suspension. Guidance on the use of suspended orders will be issued under clause 8.

Clause 22: Operation of prohibition orders

98.     Clause 22 provides for the operation of prohibition orders. As a general rule, they will come into operation 28 days after they are made. Orders whose operation is suspended will come into operation when the suspension ends.

99.     Subsection (5) provides for orders against which appeals are brought under Part 3 of Schedule 2 to become operative in accordance with paragraph 14 of that Schedule.

100.     Subsection (6) has the effect of preventing any appeal against the contents of an order more than 28 days after it has been made.

Clause 23: Revocation and variation of prohibition orders

101.     Clause 23 provides for the revocation and variation of prohibition orders.

102.     Subsection (1) requires an LHA to revoke a prohibition order if it is satisfied that the hazard in respect of which the order was made no longer exists on the premises specified in the order.

103.     Subsection (2) provides a discretionary power for an LHA to revoke a prohibition order. In the case of an order made under clause 18 (in respect of a category 1 hazard), they may only do so if they are satisfied that there are special circumstances making it appropriate to revoke the order.

104.     Subsection (3) provides that, where an order relates to a number of hazards, subsection (1) is to be read as applying separately to each hazard. Where a revocation applies only to certain of the hazards specified in an order, the LHA may vary the remainder of the order, as they consider appropriate.

105.     Subsection (5) provides that a revocation comes into force when it is made.

106.     Subsection (4) enables an LHA to vary a prohibition order. Subsection (6) provides that, if a prohibition order is varied with the agreement of every person on whom the copies of the order were required to be served, the variation comes into force when it is made. Otherwise, by virtue of subsection (7), it comes into force 28 days after the decision to vary or, if an appeal against a variation is made, it will not come into force until the appeal has been dealt with.

107.     Subsection (8) provides that an LHA may revoke or vary a prohibition order either in response to an application from any person on whom a copy of the order was required to be served, or on their own initiative.

Clause 24: Review of suspended prohibition orders

108.     Clause 24 requires an LHA to review a suspended prohibition order within a year of making the order, and at least annually thereafter. Subject to these requirements, LHAs may review suspended orders at any time. Copies of an LHA's decision on a review must be served on every person on whom a copy of the order was required to be served.

Clause 25: Service of copies of prohibition orders etc. and related appeals

109.     Clause 25 gives effect to Schedule 2, which sets out the procedures for making prohibition orders, for revocation and variation, and for dealing with appeals.

Clause 26: Hazard awareness notices relating to category 1 hazards: duty of authority to serve notice

110.     Subsection (1) provides that if a category 1 hazard exists on any residential premises, serving a hazard awareness notice is one of the courses of action available to an LHA in discharging its general duty under clause 5 to take the most appropriate enforcement action to deal with a category 1 hazard on residential premises, so long as the premises in respect of which the notice is to be served are the subject of an IMO or FMO under Part 4.

111.     Subsection (2) defines a hazard awareness notice under this clause as a notice advising the person on whom it is served that a category 1 hazard exists on the residential premises concerned.

112.     Subsection (3) sets out the premises and common parts in respect of which a hazard awareness notice may be served. Subsection (4) enables notice to be served in respect of non-residential premises, but only if the deficiency giving rise to the hazard is located there, and it is desirable for the notice to be served in the interests of the health or safety of actual or potential residential occupiers.

113.     Subsection (6) sets out the mandatory contents of hazard awareness notices under this clause, which include the details of the hazard and the category into which it falls, the reasons for serving the notice and the details of any remedial action which the LHA consider it would be practicable and appropriate to take in relation to the hazard.

114.     Subsection (7) provides that the requirements for the service of improvement notices, and copies of such notices, also apply to the service of hazard awareness notices under this clause.

Clause 27: Hazard awareness notices relating to category 2 hazards: power of authority to serve notice

115.     Subsection (1) provides a discretionary power for an LHA to serve a hazard awareness notice if it is satisfied that a category 2 hazard exists on residential premises and the premises in respect of which the notice is to be served are not the subject of an IMO or FMO under Part 4.

116.     Subsection (2) defines a hazard awareness notice under this clause as a notice advising the person on whom it is served that a category 2 hazard exists on the residential premises concerned.

117.     Subsection (3) applies subsections (3) and (4) of clause 26, which set out the premises and common parts in respect of which a hazard awareness notice may be served, and enable action to be taken in respect of non-residential premises if the deficiency giving rise to the hazard is located there, and it is desirable for the notice to be served in the interests of the health or safety of actual or potential residential occupiers.

118.     Subsection (5) sets out the mandatory contents of hazard awareness notices under this clause, which include the details of the hazard and the category into which it falls, the reasons for serving the notice and the details of any remedial action which the LHA consider it would be practicable and appropriate to take in relation to the hazard.

119.     Subsection (7) provides that the requirements for the service of improvement notices, and of copies of such notices, also apply to the service of hazard awareness notices under this clause.

Clause 28: Offence of failing to comply with improvement notice

120.     Clause 28 makes it an offence for a person on whom an improvement notice is served not to comply with that notice, and provides penalties for non-compliance.

121.     Subsection (2) explains that compliance means beginning and completing any remedial action specified in the notice within a specified period. Such an offence is punishable by a fine not exceeding level 5 on the standard scale (currently £5,000).

Clause 29: Enforcement action by local housing authorities

122.     Clause 29 gives effect to Schedule 3, which enables LHAs to take enforcement action in respect of improvement notices and recover related expenses.

Clause 30: Offence of failing to comply with prohibition order etc.

123.     Clause 30 makes it an offence for a person, knowing a prohibition order has become operative, not to comply with that order, and provides penalties for non-compliance. Such an offence is punishable by a fine not exceeding level 5 on the standard scale (currently £5,000).

Clause 31: Recovery of possession of premises in order to comply with order

124.     Restrictions on recovering possession under the Rent Act 1977, The Rent (Agriculture) Act 1976 or Part 1 of the Housing Act 1988 will not apply where a prohibition order is in force and the owner seeks possession of the premises. Therefore, where possession is sought the owner will be able to determine a tenancy by a notice to quit and then recover possession.

Clause 32: Power of court to determine or vary lease

125.     Clause 32 enables a lessor or lessee to apply to a county court for an order terminating or varying a lease on a property which is the subject of a prohibition order. Before making an order, the court must take account of all the circumstances of the case, the respective rights and obligations of all parties to the lease and allow any sub-lessees to be heard.

Clause 33: Power of court to order occupier or owner to allow action to be taken on premises

126.     Clause 33 provides that, where an occupier, owner, person having control of or managing the premises or licence holder under Part 2 or 3 of the Bill is preventing the putting into effect, in relation to the premises, of any action required by an improvement notice or necessary to give effect to a prohibition order, a magistrates' court may order that person to permit that which the court considers necessary or expedient to be done on the premises.

127.     Subsections (4) and (5) make it an offence to fail to comply with an order of the court and provide penalties for non-compliance.

Clause 34: Power of court to authorise action by one owner on behalf of another

128.     Clause 34 enables a magistrates' court to make an order allowing an owner of premises to enter those premises and, within a fixed period of time, to take the action required by an improvement notice. Before making an order, the court needs to be satisfied that such an order is necessary to safeguard the interests of the applicant, and that the LHA has been given notice of the application.

Clause 35: Effect of improvement notices and prohibition orders as local land charges

129.     Clause 35 provides that an improvement notice or prohibition order which is in operation or is suspended, and in respect of which there is no outstanding appeal, is a local land charge. Local land charges protect buyers of land, and help ensure they are not caught unawares by obligations enforceable against successive owners.

Clause 36: Savings for rights arising from breach of covenant etc.

130.     Clause 36 provides that nothing in Chapter 2 prejudices any rights of an owner of property arising from any breach of covenant or contract by the lessee. The effect of subsection (2) is that even where the owner has to take possession in order to comply with an improvement notice or prohibition order, he can still sue the tenant for breaches of contract or covenant by the tenant that occurred before he took possession.

Clause 37: Effect of Part 4 enforcement action and redevelopment proposals

131.     Clause 37 prevents an LHA from taking action under Chapter 2 if an IMO or FMO under Part 4 is in force in relation to the premises, and provides that, where an improvement notice or prohibition order has been made in response to a hazard within a house which has come under the control of an LHA as a result of the making of such an order under Part 4 of the Bill, the improvement notice or prohibition order ceases to have effect.

Clause 38: Demolition orders

132.     New subsections (1) and (2) provide that if a category 1 hazard exists on any residential premises, making a demolition order is one of the courses of action available to an LHA in discharging its general duty under clause 5 to take the most appropriate enforcement action to deal with a category 1 hazard.

133.     New subsections (3) and (4) provide a discretionary power for an LHA to make a prohibition order if it is satisfied that a category 2 hazard exists on residential premises and if the circumstances of the case are specified or described in an Order made by the Secretary of State (or National Assembly for Wales via clause 201).

134.     New subsection (5) prevents a demolition order from being made in respect of premises that are the subject of an IMO or FMO under Part 4. New subsection (6) prevents a demolition order from being made in respect of a listed building.

Clause 39: Clearance areas

135.     Clause 39 amends section 289 of the 1985 Act (declaration of clearance area) in order to align it with the hazard assessment and enforcement provisions in Part 1 of the Bill.

136.     New subsection (2) provides that if a category 1 hazard exists in each of the residential buildings in an area, and if the other buildings (if any) in the area are dangerous or harmful to the health or safety of the inhabitants of the area, declaring a clearance area is one of the courses of action available to an LHA in discharging its general duty under clause 5 to take the most appropriate enforcement action to deal with a category 1 hazard.

137.     New subsection (2ZA) provides a discretionary power for an LHA to declare a clearance area if it is satisfied that the residential buildings in the area, and any other buildings, are dangerous or harmful to the health or safety of the inhabitants of the area.

138.     New subsection (2ZB) provides that, if a category 2 hazard exists in each of the residential buildings in an area, and if the other buildings (if any) in the area are dangerous or harmful to the health or safety of the inhabitants of the area, the LHA may only declare the area to be a clearance area if the circumstances of the case are specified or described in an Order made by the Secretary of State (or National Assembly for Wales via clause 197). An example of the circumstances prescribed might be the presence of a significant number of category 2 hazards in a majority of the residential buildings in the area.

Chapter 4 - General Provisions Relating to Enforcement Action

Clause 40: Power to charge for certain enforcement action

Clause 41: Recovery of charge under clause 40

139.     Clauses 40 and 41 provide powers for LHAs to charge, and to recover charges, incurred in respect of certain enforcement powers and duties exercised under Part 1 of the Bill. These provisions re-enact with modifications sections 87 and 88 of the 1996 Act.

Clause 42: Repeal of power to improve existing enforcement procedures

140.     Clause 42 repeals section 86 of the 1996 Act, which provides a pre-notice procedure enabling forewarning to be given of the enforcement action contemplated by an LHA. The Housing (Fitness Enforcement Procedures) Order 1996 (SI 1996 No 2885) requires an LHA to issue a "minded to take action" notice prior to taking enforcement action. The repeal of section 86 is a deregulatory measure.

PART 2 - LICENSING OF HOUSES IN MULTIPLE OCCUPATION

Clause 44: Licensing of HMOs to which this Part applies

141.     Clause 44 provides that this Part of the Bill applies to any description of HMOs prescribed in regulations by the appropriate national authority. The clause is intended to prescribe HMOs of 3 storeys and above in which at least 5 people live. It also applies to any description of HMOs specified in additional licensing schemes made by the LHA under clause 45. The clause also places general duties on the LHA to make necessary arrangements to implement the licensing regime, and to ensure applications made to them for licences are dealt within a reasonable time. LHAs are required to satisfy themselves, as soon as reasonably practicable, that no Part 1 functions need to be exercised in respect of HMOs for which applications have been made. The meaning of HMO is given by clauses 191 - 195.

Clause 45: Designation of areas subject to additional licensing

142.     Clause 45 allows an LHA to designate part or all of its area as subject to additional licensing, for specified description(s) of HMOs. Before making a designation the LHA must consider that the HMOs specified are giving rise to problems because of poor management arrangements. It must consult on any proposed designation with those likely to be affected by the designation and take account of any representations received.

Clause 46: Designations under clause 45: further considerations

143.     Clause 46 sets out further requirements that the LHA must consider in exercising the power to make designations under clause 45. These are: (a) ensuring the exercise of the power is in accordance with the LHA's overall housing strategy; (b) that licensing is part of a co-ordinated approach to deal with wider issues such as anti-social behaviour; (c) whether there are other courses of action that could be used to deal with the problems identified; and (d) that the designation will significantly help to deal with the problems. The clause provides a definition of what amounts to anti-social behaviour for the purposes of the Bill.

Clause 47: Designation needs confirmation or general approval to be effective

144.     Clause 47 provides for any such additional licensing to be confirmed by the appropriate national authority. The appropriate national authority may refuse to make a confirmation. On confirmation the appropriate national authority will determine the date the designation comes into force, to be no earlier than 3 months after confirmation. The clause also provides that the appropriate national authority may give general approval to any description of designation. Where a general approval is given, any such designation comes into force no earlier than three months after it is made.

Clause 48: Notification requirements relating to designations

145.     Clause 48 requires that when a designation is made or confirmed, a notice should be published giving prescribed information about the designation and (if appropriate) its confirmation. The LHA must make copies of the information and other prescribed information available to the public.

 
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Prepared: 8 December 2003