Housing Act 2004 – House in multiple occupation – Appellant housing authority licensing two HMOs on terms prohibiting use of attic rooms as bedrooms – First-tier tribunal varying licences to permit use as bedrooms by person in full-time education residing there for no more than 10 months in the year – Court of Appeal adding further conditions that communal space available for communal living only and bedrooms let only to full-time students– Whether such conditions permissible – Appeal dismissed
The appellant was a housing authority responsible for licensing houses in multiple occupation (HMOs) pursuant to Part 2 of the Housing Act 2004. The respondents, who were in the business of providing student accommodation, carried out works to two houses to create an additional bedroom in the attic space. The appellant took the view that, owing to the restricted headroom caused by the sloping ceiling, the useable living space in the attic bedrooms was less than the 8m² which it regarded as the acceptable minimum bedroom size. In each case, it granted a new licence subject to a condition, imposed under section 67 of the 2004 Act, which prohibited the use of the attic room for sleeping.
The first-tier tribunal (FTT) allowed the respondents’ appeals against that decision and granted licences that permitted the use of the attic rooms as bedrooms. In the case of one of the houses, but not the other, it imposed a condition limiting the use of the attic bedroom to sleeping accommodation by a person in full-time education who resided in the dwelling for a maximum period of 10 months of the year. It justified its conclusions on the ground that there were sufficient compensating features in the properties, including a reasonably-sized shared living room, to make them suitable for students or other similar cohesive occupation for six people. That decision was subsequently upheld by the Upper Tribunal: see [2016] UKUT 71 (LC); [2016] PLSCS 53 and the Court of Appeal, which addedfurther conditions that the communal space be kept available for communal living only and no bedrooms be let to persons other than full-time students: see [2017] EWCA Civ 188; [2017] PLSCS 79.
The appellant appealed to the Supreme Court contending that the power to impose conditions under sections 64 and 67 of the 2004 Act could not be used to limit the class of persons for whom the HMO was suitable; and that the conditions imposed by the Tribunals and the Court of Appeal were irrational and unenforceable. The respondents did not appear and were not represented. An advocate to the court was appointed to argue the grounds for resisting the appeal. The Secretary of State for Housing, Communities and Local Government intervened.
Held: The appeal was dismissed.
(1) Section 64(3)(a) of the 2004 Act indicated that the purpose of imposing conditions was to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority. Section 67(1)(a) provided that a licence might include such conditions as the local housing authority considered appropriate for regulating all or any of “the management, use and occupation of the house concerned”. Section 67(2) gave a non-exhaustive list of permitted conditions including in section 67(2)(a) “conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it”. The natural meaning of those words extended sufficiently widely to include the present conditions. The words “use and occupation” in section 67(1) were not used as a composite term. The inclusion of “occupation” in addition to “use” in section 67(2)(a) must have been intended to extend the scope of permissible conditions. The present conditions fell squarely within the natural meaning of section 67(2)(a).
(2) Such a reading was consistent with the object of the legislation. Elsewhere in Part 2 of the 2004 Act, the manner of occupation of a house and the general characteristics of occupants were considered relevant in contexts connected with HMOs and with housing standards generally. Further, the guidance on amenity standards for HMOs supported the view that the manner of occupation of a room and the type of occupant might have a bearing on the suitability of a particular room for a particular use; and that in practical terms the availability of communal living space might be capable of compensating for an undersized bedroom. The conditions in the present case did not introduce an exception to its operation for a category of persons or a defined set of circumstances. They did not remove shared student houses from the regulatory scheme or permit occupation at a lower standard.
(3) It was appropriate, when considering the suitability of accommodation in an HMO for a particular purpose, to have regard to the mode of occupation. Certain types of accommodation might lend themselves to different styles of occupation and it would be surprising if the 2004 Act did not reflect that. Account should be taken of the proposed mode of occupation where it was likely to influence the quality of the accommodation made available to the occupant. That did not permit the application of lower standards than would otherwise be applicable. The condition limiting the occupation to persons engaged in full-time education was rational and enforceable. Accordingly, the power to impose conditions under sections 64 and 67 of the 2004 Act could be used to limit the class of persons for whom the HMO was suitable.
The conditions imposed by the tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the front attic bedrooms to be let to students. That deficiency was cured by the further conditions introduced by the Court of Appeal. However, the requirement limiting occupation to ten months in each year was irrational. Subject to the deletion of that requirement, the conditions imposed by the Tribunals and the Court of Appeal, considered cumulatively, were lawful.
Andrew Arden QC and Annette Cafferkey (instructed by Nottingham City Council Legal Services) appeared for the appellant; The respondents did not appear and were not represented; Martin Chamberlain QC, advocate to the court; Jonathan Moffett QC (instructed by the Government Legal Department) appeared for the intervener.
Eileen O’Grady, barrister
Click here to read transcript: Nottingham City Council v Parr and another
