House in multiple occupation – Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 – Defendant company owning maisonette in five-floor building – Claimant local authority introducing mandatory licensing scheme for qualifying homes in multiple occupation – Whether maisonette falling into categories of property requiring licence – Summons against defendant dismissed – Appeal dismissed
The defendant company owned a maisonette arranged over the second and third floors of a substantial house in Bristol that comprised five floors in all. There was another maisonette on the ground and first floors. Access to the maisonettes was through the front door of the house at street level, where there was a shared hallway or lobby on the ground floor. The private front doors to the maisonettes led off that hallway. Beyond the front door for the defendant’s maisonette, there was a private hallway from which the stairs went up two floors to reach the maisonette itself. There was a first floor landing on the way up. The stairs and the small areas on the ground floor and first floor formed part of the premises leased to the occupiers of the maisonette.
The claimant local authority considered that the defendant’s maisonette comprised four storeys and issued a summons alleging that the defendant had failed to obtain a licence in respect of it, as required by section 55 of the Housing Act 2004 and the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006; such a failure was an offence contrary to section 72 of the 2004 Act, Part 2 of which introduced a mandatory scheme for licensing by local authorities of qualifying homes in multiple occupation. It was not disputed that the maisonette constituted a “house in multiple occupation” (HMO) for the purposes of the statutory scheme. The sole question was whether it fell within the description of HMOs that the statutory scheme required to be licensed, on the basis that it comprised three storeys or more. The defendant argued that it comprised only two storeys because the private hall and first-floor landing should be ignored for that purpose.
The district judge dismissed the summons but the claimants appealed. They argued that the number of storeys comprising the upper maisonette could be determined solely by reference to section 254(8) of the 2004 Act, by asking how many floors it had. Alternatively, the two floors of stairs and landings were caught by article 3(3)(f) of the 2006 Order as they were an integral part of the HMO to be taken into account when calculating the number of storeys.
Held: The appeal was dismissed.
On the ordinary use of language, the defendant’s property was a two-storey maisonette. That essential truth did not change because the stairs, and associated spaces at the bottom and on a turn, formed part of the demised premises. Unless article 3(3)(f) applied to count the private hall and landing as additional storeys, the claimant’s appeal had to fail. The question whether any storey was used wholly or partly as living accommodation was also a question of fact. “Living accommodation” was not defined in the 2006 Order or the 2004 Act but article 3(3)(c) did not include lobbies and landings leading to a self-contained flat because the reference was to “living accommodation… above business premises”, which necessarily had to be served by a means of access.
There might well be circumstances where a landing or hallway was used wholly or partly as living accommodation; however, the exiguous and transitory nature of leaving a few belongings in a hallway at the bottom of two flights of stairs did not turn the space into living accommodation: Islington London Borough Council v Unite Group plc [2013] EWHC 508 (Ch); [2013] PLSCS 86 considered. The private ground-floor lobby and first-floor landing were not used in connection with, and as an integral part of, the upper maisonette as required by article 3(3)(f).
The small areas on the ground floor and first floor demised as part of the upper maisonette were not storeys, and so did not fall within the second part of subpara (f). Article
3(3)(e), relating to mezzanine floors, was instructive. There was clearly no intention to include a mezzanine floor as a storey if it was used solely as a means of access between adjoining floors or for some other purpose falling short of use wholly or mainly as living accommodation, or in connection with and as an integral part of the HMO. It would be odd if a mezzanine floor used solely for access were excluded from the calculation of how many storeys the HMO comprised, while a hallway or landing on a staircase used solely for access was included. On any reading of subpara (f), the lobby and landing associated with the private staircase from the ground floor to the upper maisonette did not count as storeys. The defendant’s maisonette did not fall within those categories of HMO that were required to be licensed.
Ranjit Bhose QC (instructed by Bristol City Council) appeared for the claimants; Suzanne Ornsby QC and George Mackenzie (instructed by Bond Dickinson LLP) appeared for the defendant.
Eileen O’Grady, barrister
