The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
The 4 April 2020 saw the coming into force of The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020.
The Regulations apply to local authority meetings and police and crime panel meetings that are required to be held, or are held, before 7 May 2021 and provide for the remote access of, and remote attendance at, local authority meetings. A “local authority meeting” is defined in the Regulations as a meeting of a local authority, an executive of a local authority, a joint committee of two or more authorities or a committee or sub-committee of any of the aforementioned.
“Remote access” is to be construed in accordance with the provision for “remote access of public and press to a local authority meeting to enable them to attend or participate in that meeting by electronic means, including by telephone conference, video conference, live webcasts and live interactive streaming”.
The “remote attendance” of members is to be construed with their attendance at a meeting when they are able to hear and see, and where practicable be heard and be seen by the other members and members of the public entitled to attend the meeting to exercise their right to speak, and those members of the public attending the meeting. The Regulations provide for a local authority to make standing rules and orders as to remote attendance as regards voting, access to documents and the attendance of the press and public. Importantly, the Regulations also make it clear that any reference to a “place” where a meeting is held or to be held includes a reference to more than one place.
The Regulations also make further provisions for modifications to Schedule 12 of the Local Government Act 1972 but make no explicit reference to the Licensing Act 2003 – the local authority functions and obligations under which have not been suspended due to the Covid-19 pandemic. So, can a local authority in its capacity as a licensing authority, hold a hearing required under the 2003 Act remotely?
We consider the answer to be “yes”. Firstly, we consider that given the 2020 Regulations’ definition of a “local authority meeting” they apply to licensing hearings and secondly, even if the contrary were successfully argued, we consider that such hearings may be conducted remotely by virtue of the 2003 Act and the Licensing Act 2003 (Hearing) Regulations 2005.
While we would advise that the parties concerned redouble their efforts to avoid the need for a hearing, at times it will not be possible to reach a compromise on contested applications, and unless all parties consent to dispense with a hearing, a hearing must be heard within the specified time limits and in accordance with the requirements as regards notices and publication; access to information and papers; the right to speak and be heard and the right of the press and public access (subject to the power to exclude in certain circumstances) provided for under the 2003 Act and the 2005 Regulations.
However, subject to its requirements, the licensing legislation affords a licensing authority considerable autonomy to regulate its own procedures and those of its sub-committees hearing applications brought under the 2003 Act. While the 2005 Regulations use terms such as “attendance” and “appearance” they do not specify that such attendance or appearance requires a physical presence.
As such, and notwithstanding the 2020 Regulations, we consider there is nothing in the 2003 Act or the 2005 Regulations that prohibit the remote conduct of licensing hearings. Notification and publications, the submission of, and access to, papers pertaining to a licensing hearing can be facilitated online (with appropriate safeguards to data protection), and with some forethought, planning and liaison with the parties as to the use of remote technology, the hearings and the sub-committee’s deliberations can be conducted remotely with the rights of the parties, the press and the public upheld.
In conjunction with a thorough consideration of the requirements of the licensing legislation, compliance with the 2020 Regulations as regards the conditions that must be fulfilled “remote access” and “remote attendance” should ensure that a remote licensing hearing is effective. It is also worth remembering that R (D&D Bar Services Ltd) v Romford Magistrates’ Court  EWHC 213 (Admin) is authority that licensing decisions will not be automatically invalid for a procedural defect if there has otherwise been substantial compliance with the licensing legislation, and in his recent directions to the courts and tribunals, the Lord Chief Justice has made it clear that everyone must do their best to get hearings dealt with virtually, and we do not consider that a contrary view would be taken in the case of administrative committees.
Please contact Matt Marsh if you have any question about the content of this e-briefing.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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