Selective Licensing: Why Wirral Could Redefine the Legal Limits – and What Every Landlord Needs to Know

Selective licensing was introduced as a tool to raise standards and tackle poor management in the private rented sector. In practice, many schemes have led to conditions that some landlords believe go far beyond what Parliament intended in the Housing Act 2004.

Wirral’s latest selective licensing scheme is a prime example – and it is now the subject of a live legal challenge.

This is not an attack on safety or compliance.

It is a targeted, line-by-line review of conditions that appear duplicative, disproportionate, or uncertain. If successful, the outcome could set a persuasive precedent for other councils and schemes across England.

Why landlords everywhere should care

If Wirral’s scheme is allowed to stand unchallenged, it risks becoming the template for other councils nationwide. Once a council establishes conditions beyond the statutory purpose, others often copy them – with little scrutiny.

The outcome in Wirral may well shape the licensing landscape for years to come.

What’s being challenged

The challenge (brought by a landlord client with support from JSC Chambers) focuses on conditions that:

• Duplicate existing national duties – e.g. gas and electrical safety checks, smoke/CO alarms, EPC disclosure, “How to Rent” guide – all of which are already separately enforceable
• Impose duties for tenant behaviour – e.g. pest infestations linked to refuse or pets, despite s.11(2) Landlord and Tenant Act 1985 excluding disrepair caused by tenant conduct
• Shift public functions onto landlords – such as managing alleygate keys (public space management) or wheelie bins (the local waste authority’s responsibility)
• Introduce vague obligations – open-ended “co-operation” duties or compulsory “training” without scope, creating uncertainty and uneven enforcement
• Create risks of double sanctions – the same issue could be punished under national law and again as a licence breach (s.95 HA 2004).

This is not just a Wirral issue. It is about drawing the legal line in the sand.

The legal backbone (in plain English)

• Housing Act 2004, Part 3 (Selective Licensing) – councils may impose additional licence conditions only where they are necessary, appropriate and reasonable to regulate the management, use or occupation of the property (s.90).
• Schedule 4, HA 2004 – sets mandatory conditions (gas safety, electrical safety, smoke/CO alarms). Councils should not duplicate these through “additional” conditions.
• DLUHC guidance – explicitly cautions that conditions must not duplicate other legal requirements and must be proportionate, evidenced and justified.
• Selective Licensing of Houses (Specified Exemptions) (England) Order 2006 – exempts social housing. This leaves many landlords pointing to a two-tier system: private landlords face additional licensing duties while councils and registered providers do not.

Key case law landlords should know

• Nottingham City Council v Parr [2018] UKSC 51 – Supreme Court confirmed licence conditions must be proportionate and aligned with statutory purpose. Over-prescriptive or mis-directed conditions can be struck out.
• R (Gaskin) v Richmond upon Thames LBC [2018] EWHC 1996 (Admin) – High Court quashed an unlawful HMO licensing fee structure for breaching the EU Services Directive; fees must be proportionate and lawfully structured.
• R (Hemming (t/a Simply Pleasure Ltd)) v Westminster City Council [2017] UKSC 50– licensing fees cannot become a revenue-raising tool; they must be proportionate and tied to actual licensing costs.
• R (Peat) v Hyndburn BC [2011] EWHC 1739 (Admin) – licensing measures require adequate evidence; poor consultation or unsupported necessity can render them unlawful.
• R (Khatun) v Newham LBC [2004] EWCA Civ 55 – where authorities must have regard to guidance, they must follow it or give cogent reasons for departing; proportionality and rationality are key.

In short:

Licence conditions must be tightly connected to the mischief they address – not duplicate national regimes or transfer unrelated duties onto landlords.

Where the first test will be made

A landlord client has served formal written objections to Wirral’s conditions and is now preparing to appeal to the First-tier Tribunal (Property Chamber).

The Tribunal has power to vary or quash conditions (Sch.5 para 31 HA 2004). Its decisions are published and often cited by other councils, tribunals, and landlord bodies as persuasive authority.

This makes the First-tier Tribunal the correct and low-risk forum to test proportionality and purpose before conditions bed in nationally.

Funding, risk and governance – full transparency

• Work required – estimated 30 hours minimum, potentially up to 50.
• Fee – JSC Chambers has agreed a fixed fee of £3,000 for the FTT stage (fixed even if hours exceed the estimate, avoiding open-ended hourly billing).
• Raised so far – a small cohort of landlords has contributed £2,000. A further £1,000 will close the FTT funding gap.
• How funds are handled – voluntary, non-refundable contributions applied solely to legal costs and disbursements for this test case. Receipts can be provided for business records. Surplus funds ring-fenced for follow-on steps.
• Adverse costs – at the FTT, each side usually bears its own costs. Escalation to the Upper Tribunal or judicial review carries higher and less predictable cost risk; those steps will depend on outcome, merits and support.

This is the safest and most economical opportunity landlords have had to test the law.

Evidence that makes the difference

To show duplication, disproportionality and mis-targeting, the case is gathering:

• Examples where councils enforced against landlords for tenant-caused disrepair (e.g. smashed glazing, refuse accumulation, pet infestations)
• Comparisons with social housing — e.g. tenancy handbooks showing that RPs typically do not provide floor coverings, bins beyond the initial council issue, or alleygate keys
• Council policies showing how licence breaches are used versus HHSRS (Part 1 HA 2004), and how double sanction is avoided (or not).

If you have anonymised examples, notices or costs, they can make a decisive difference at Tribunal.

Where membership bodies fit in

This is not about criticising landlord organisations. Bodies such as the NRLA do vital work in lobbying, training and policy.

Litigation, however, is a different lane. This case complements their role, and collaboration would strengthen the sector’s position.

Call to action

• Contribute – £20, £50, £100–£200 pledges close the immediate funding gap
• Provide evidence – share anonymised examples of enforcement where you were required to fix tenant-caused hazards or where PRS standards exceeded those for social landlords
• Stay connected – share this article with other landlords and agents in licensing areas.

Bottom line

Selective licensing is not going away. But how it is applied is the battleground.

• Section 90, Housing Act 2004 sets the limits
• Case law confirms duplication, over-prescription and revenue-raising by the back door are not permissible.

This Wirral case is the right test, at the right time. If landlords step forward together, they can secure a fair and lawful framework.

If nothing is done, silence will be taken as permission for councils to carry on.

Unity, or acceptance. The choice is ours.

Neil Heffey

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