JUDGMENT
Nottingham City Council (Appellant) v Parr and
another (Respondents)
before
Lady Hale, President
Lord Wilson
Lord Carnwath
Lady Black
Lord Lloyd-Jones
JUDGMENT GIVEN ON
10 October 2018
Heard on 13 June 2018
Appellant Respondents
Andrew Arden QC None
Annette Cafferkey
(Instructed by Nottingham
City Council)
Advocate to the Court
Martin Chamberlain QC
Intervener
(Secretary of State for Housing, Communities and Local Government)
Jonathan Moffett QC
Heather Emmerson
(Instructed by The Government Legal Department)
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LORD LLOYD-JONES: (with whom Lady Hale, Lord Wilson, Lord
Carnwath and Lady Black agree)
1. The appellant, Nottingham City Council (“Nottingham”), is the licensing
authority for those houses in multiple occupation (“HMOs”) in its district which are
licensable under Part 2, Housing Act 2004. This appeal concerns two HMOs, namely
44, Rothesay Avenue, Lenton, Nottingham NG7 1PU and 50, Bute Avenue, Lenton,
Nottingham NG7 1QA. Both are owned by the second respondent, Trevor Parr
Associates Ltd, which carries on the business of providing accommodation for
students. The first respondent Dominic Parr is the managing director of the second
respondent and the manager of the properties.
2. Nottingham appeals against the decision of the Court of Appeal dated 29
March 2017, dismissing its appeal against the decision of the Upper Tribunal (Lands
Chamber) dated 9 February 2016, dismissing its appeals against decisions of the
First-tier Tribunal dated 5 November 2014 (44, Rothesay Avenue) and 6 May 2015
(50, Bute Avenue) respectively, allowing the respondents’ appeal against the
imposition by Nottingham of certain HMO licensing conditions.
3. On this appeal to the Supreme Court the respondents have not appeared and
have not been represented. In these circumstances, at the request of the Court an
Advocate to the Court was appointed in order to argue the grounds for resisting the
present appeal and we are grateful to Mr Martin Chamberlain QC for performing
this role. In addition, the Secretary of State for Housing, Communities and Local
Government (“the Secretary of State”) has intervened in this appeal. We are grateful
to all counsel for their submissions.
Legislation
4. The Housing Act 2004, Part 2 replaced the previous law on HMOs which
was to be found in the Housing Act 1985, Part XI (“the 1985 Act”). The 1985 Act
defined an HMO as “a house which is occupied by persons who do not form a single
household” but left the word “household” undefined. In Barnes v Sheffield City
Council (1995) 27 HLR 719 the Court of Appeal set out a number of factors relevant
to determining whether occupants were living together as a single household. It held
that in the particular circumstances of that case a group of students sharing a house
constituted a single household. The 1999 consultation paper, “Licensing of Houses
in Multiple Occupation – England” (DETR, 1999), which preceded the 2004 Act
observed (section 2, para 24) that, as a result of this judgment, housing authorities
were wary of attempting to use their HMO powers in shared houses, particularly
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those occupied by students. The 2004 Act was intended, inter alia, to extend the
regulatory scheme of HMOs to include shared student accommodation, subject to
certain exceptions.
5. The 2004 Act introduced for the first time a system of licensing of HMOs
authorising occupation of the house concerned by not more than a maximum number
of households or persons specified in the licence (section 61(2)). A building or part
of a building will qualify as an HMO if the living accommodation is “occupied by
persons who do not form a single household” (section 254(2)(b), (3) and 4(c)) and
if “occupied by those persons as their only or main residence or they are to be treated
as so occupying it” (section 254(2)(c), (3) and 4(d)). Section 258 makes provision
for determining when persons are to be regarded as not forming a single household
for the purposes of section 254. They are to be so regarded unless they are members
of the same family or their circumstances are of a description specified in regulations
(section 258(2)). Such provision is made in the Licensing and Management of
Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions)
(England) Regulations 2006 (SI 2006/373) (“the 2006 Regulations”). Section 259
makes provision for determining when persons should be treated as occupying
premises as their only or main residence. In particular, a person is to be so treated,
inter alia, if premises are occupied by the person as the person’s residence for the
purpose of undertaking a full-time course of further or higher education (section
259(2)(a)).
6. If an application for a licence is made to the local housing authority, it may
grant a licence if it is satisfied as to the matters mentioned in section 64(3). Those
requirements include “that the house is reasonably suitable for occupation by not
more than the maximum number of households or persons [specified in the
application or decided by the authority] or that it can be made so suitable by the
imposition of conditions under section 67” (section 64(1), (2), (3)(a)). Section 67
provides in material part:
“67 Licence conditions
(1) A licence may include such conditions as the local
housing authority consider appropriate for regulating all or any
of the following –
(a) the management, use and occupation of the house
concerned, and
(b) its condition and contents.
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(2) Those conditions may, in particular, include (so far as
appropriate in the circumstances) –
(a) conditions imposing restrictions or prohibitions
on the use or occupation of particular parts of the house
by persons occupying it; …
…
(5) A licence may not include conditions imposing
restrictions or obligations on a particular person other than the
licence holder unless that person has consented to the
imposition of the restrictions or obligations.
(6) A licence may not include conditions requiring (or
intended to secure) any alteration in the terms of any tenancy
or licence under which any person occupies the house.”
Guidance
7. At the material time, minimum sizes of bedrooms in HMOs were not
prescribed in legislation. However, Nottingham issues guidance to its housing
officers on the operation of this licensing system. For present purposes the relevant
document is “HMO Amenity Guidance 3 – Space Provision for Licensable and NonLicensable HMOs”. This states that in the case of bedrooms in single occupation in
HMOs where there is adequate dining space elsewhere and where cooking facilities
are not provided in the room the minimum space provision is eight square metres.
A general note adds:
“The dimensions and areas specified shall normally be
regarded as the minimum, particularly with regard to new
proposals. However it is recognised that existing buildings
cannot always achieve these minima. A degree of flexibility
will sometimes be possible if other compensating features are
present. Conversely it should be noted that irrespective of the
dimensions, the shape and useable living space of any room is
a determining factor in the calculation of the maximum number
of people for which it is suitable.”
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In carrying out its measurements Nottingham disregards all space with a floor to
ceiling height of less than 1.53 metres.
8. Nottingham participates with other housing authorities in the East Midlands
in an organisation named East Midlands Decent and Safe Homes which also sets out
amenity standards for HMOs in “Amenity and Space in HMOs: A Landlords Guide”
(“the East Midlands DASH Guide”). This recommends adopting eight square metres
as the minimum size for bedrooms of this sort but also states:
“The standards are usually regarded as a MINIMUM but are a
guide only. Other factors or compensatory features will be
taken into account when inspecting a property, therefore
allowing for a degree of flexibility in certain circumstances.
These factors could include the shape of the usable living
space, or the needs and wishes of the occupants.” (Original
emphasis)
The properties
9. 44, Rothesay Avenue and 50, Bute Avenue are both terraced houses of
traditional brick construction with a slate roof. Both are used for letting to students
and in each case the attics have been converted into bedrooms. In each property the
front attic bedroom has a sloping ceiling which reduces the area regarded by
Nottingham as useable living space below eight square metres. At 44, Rothesay
Avenue the front attic room has a total floor area of 9.75 square metres but, due to
the sloping ceiling, only 5.89 square metres has a floor to ceiling height of 1.53
metres or more. The front attic room at 50, Bute Avenue has a floor area of
approximately 11 square metres of which only 6.89 square metres has a floor to
ceiling height of 1.53 metres or more. Both the Upper Tribunal and the Court of
Appeal quoted the following description of the attic bedroom at 44, Rothesay
Avenue by the First-tier Tribunal:
“The area of the relevant bedroom having a height of less than
1.53m was utilised to accommodate a desk and for storage. The
relevant room includes a double bed, desk, chest of drawers,
bedside table, bookshelves and a built-in wardrobe. The pitch
of the roof slope was such that it appeared possible to use the
desk without undue risk of collision and any such risk could be
reduced further by placing the chair in the area beneath the
pitched roof window thereby eliminating the risk of collision
when rising from the chair. The head of the bed was fitted under
that part of the room with reduced height. Risk of collision
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could be avoided by turning the bed through 180°. The risk of
collision when changing the bed linen could be avoided by
pulling the bed out of the area with reduced headroom prior to
performing the task.”
The assessment of the attic bedroom at 50, Bute Avenue was to similar effect.
Nottingham’s decisions and the appeals
10. In each case Nottingham granted a new HMO licence which imposed a
condition prohibiting the use of the attic bedroom for sleeping. The licence for 44,
Rothesay Avenue provided:
“… [T]he second floor front bedroom be prohibited for the use
of sleeping. This room will not be allowed for the use for
sleeping until it has provided by way of alteration, adaptation
or extension a useable floor surface area of eight square metres
within a minimum ceiling height of 1.53 metres below the
sloping ceiling from the floor.” (para 36)
The licence for 50, Bute Avenue limited the number of persons permitted to occupy
the HMO to a maximum of five and provided:
“The second floor front bedroom is not to be used as a sleeping
room, except where it is let in combination with another room
within the property in such a way as to provide the occupant
with the exclusive use of two rooms.” (para 38)
This licence further provided that the restriction on sleeping in the room might be
removed if alterations were carried out to increase the size of the room to eight
square metres (excluding any area where the ceiling height is below 1.53m).
11. In each case the respondents appealed to the First-tier Tribunal against the
imposition of these conditions. Each of the First-tier Tribunals referred in its
decision to the guidance issued by Nottingham and, in particular, to the general note
quoted at para 7 above. Each considered that Nottingham’s guidance on space
provision was reasonable as general guidance but noted that some flexibility was
permitted if other compensating features were present. Each considered that in each
of the rooms the area with the reduced headroom was of some value for the uses
described. Furthermore, each considered that in each of the HMOs the provision of
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communal living space was significantly larger than the minimum contemplated by
Nottingham’s requirements for additional living space. In each case the Tribunal
regarded this over-provision as a compensating feature which could be taken into
account in applying Nottingham’s own guidance. In each case the Tribunal
concluded that the attic rooms were adequate as study/bedrooms “where cohesive
living is envisaged” and that there were sufficient compensating features in the
HMOs to make them suitable for “student or similar cohesive occupation for six
persons in six households”. Accordingly, in the licence for 44, Rothesay Avenue the
First-tier Tribunal substituted an alternative condition, namely that:
“The second floor front bedroom may only be used for sleeping
accommodation by a person engaged in full-time education and
who resides in the dwelling for a maximum period of ten
calendar months over a period of one year.”
No similar condition was introduced by the First-tier Tribunal which heard the
appeal in relation to 50, Bute Avenue, but it justified its conclusion by stating that
“there are sufficient compensating features in the property to make it suitable for
students or similar cohesive occupation for six persons in six households.” In
dismissing Nottingham’s further appeal in that case, however, the Upper Tribunal
directed that the same condition be included in the licence for 50, Bute Avenue.
12. On appeal to the Upper Tribunal (Lands Chamber) both appeals were
dismissed. Martin Rodger QC, Deputy President, referred to examples of guidance
by local housing authorities modifying space standards for particular modes of
occupation which, he considered, recognise that certain categories of occupier may
wish to occupy accommodation in a particular way. The purpose of all conditions
under section 67 was to ensure that the HMO is suitable for the number of persons
permitted to occupy it and there was therefore nothing unlawful in formulating a
condition applicable to a particular mode of occupation by a category of occupants
if the house was suitable for them in greater numbers than it would be for a different
mode of occupation. He rejected Nottingham’s submission that the Act requires that
an HMO must be capable of occupation by all potential occupants. Referring to the
substituted condition in the case of 44, Rothesay Avenue, he observed that the
condition was formulated on the basis that the property was one “where cohesive
living is envisaged” and that by “cohesive living” the First-tier Tribunal clearly had
in mind the level of shared activity and social interaction to be expected in a “sharedhouse” or “Category B” HMO, as described at greater length in the policy
documents of other local authorities. In his view, the basic idea of a house shared by
a number of individuals, not forming a family but who nevertheless wish to share
communal living facilities and enjoy a significant level of social interaction, is
readily understood. With regard to the terms of the condition he observed:
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“I am satisfied that there is nothing unlawful in a condition
restricting the use of sleeping accommodation in part of an
HMO to a person in full-time education, if the decision maker
is satisfied that, looked at as a whole, the HMO is suitable for
the number of households specified in the licence. An
alternative condition, perhaps more closely reflecting the
reason for permitting the use of a room smaller than would
normally be acceptable, might require that the occupiers be
members of a group who intend to share the communal living
space, but I do not think the reference to students makes the
condition unlawful.”
13. The Court of Appeal (Longmore, Lewison and Briggs LJJ) upheld the
decision of the Upper Tribunal: [2017] PTSR 879. The Court of Appeal considered
that the power to impose conditions permitted a condition defined by reference to
the general characteristics and activities of an occupier. A restriction of occupation
to “occupation by students” was a restriction on “occupation by persons”. The Court
of Appeal rejected submissions that the condition imposed by the First-tier Tribunal
was irrational and incapable of effective enforcement. However, it varied the
licences to include two further conditions:
“(i) that the communal space on the ground floor,
comprising a kitchen/diner and living room area, be kept
available for communal living space only;
(ii) that no bedrooms may be let to persons other than
students engaged in full-time education.”
14. Nottingham now appeals to the Supreme Court, by leave granted by this
Court, on the following grounds:
Ground 1: The power to impose conditions under sections 64 and 67, Housing
Act 2004, in order to make an HMO suitable for a particular number of
households or persons, cannot be used so as to limit the class of persons for
whom the HMO is suitable.
Ground 2: The conditions imposed by the Tribunals and Court of Appeal are
irrational and unenforceable.
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Ground 1
Submissions of the parties
15. On behalf of Nottingham, Mr Andrew Arden QC submits that the conditions
imposed seek to make an exception for full-time students otherwise than in the
circumstances permitted by the legislation. Section 64(3)(a) requires the authority
to be satisfied “that the house is reasonably suitable for occupation by not more than
the maximum number of households or persons mentioned in subsection (4) or that
it can be made so suitable by the imposition of conditions under section 67.” In his
submission the legislation, at this stage, is unequivocal and concerned only with
numbers. Furthermore, section 67(2)(a) which permits “conditions imposing
restrictions or prohibitions on the use or occupation of particular parts of the house
by persons occupying it” does not permit conditions restricting who may occupy an
HMO. The references elsewhere in the statute to the characteristics of occupants do
not support setting conditions by reference to such characteristics. In the alternative,
the proposed conditions here seek, contrary to the policy of the legislation, to
introduce an exception to its operation for a category of persons or a defined set of
circumstances. A condition which restricts the occupation of an HMO by reference
to a class of occupier does not achieve the purpose of improving or maintaining
standards and has the effect of making accommodation unavailable to a section of
the rental market. That standards may be lowered for certain categories otherwise
than as specified by Parliament is the antithesis of the legislative purpose. In the
further alternative, treating occupation by students in this way is contrary to the
statutory object of Part 2 of the 2004 Act which was intended in part to reverse the
decision of the Court of Appeal in Barnes v Sheffield City Council.
16. On behalf of the Secretary of State Mr Jonathan Moffett QC accepts that, in
an appropriate case, section 67 does empower a housing authority to impose a
condition on a licence which restricts the occupation of all or part of an HMO to
occupation by a particular class of person. However, he submits that a housing
authority may not, on the basis of such a condition, grant a licence for an HMO
which authorises the HMO to be occupied by a greater number of households or
persons than the authority would otherwise authorise. In particular, he criticises the
approach of the Court of Appeal on the grounds that it allows for the application of
different standards for different classes of person and assumes that a particular class
of occupier will live in the HMO in a way that requires a lower standard of
accommodation than other classes. He submits that section 64(3)(a) refers to
conditions that make the house reasonably suitable for occupation by the maximum
number of households or persons and does not refer to conditions that make the
households or persons suitable to occupy the house.
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17. Mr Chamberlain, as Advocate to the Court, has at the Court’s request
advanced the submissions which might have been made by the respondents had they
taken part in this further appeal. He submits that section 67 permits the imposition
of the conditions in question here. First, he submits that the conditions imposed on
the letting of each of the properties were, on their face, conditions regulating the
“use” of the second floor front bedroom and were correctly characterised as such.
However, Parliament chose to permit conditions regulating “management, use and
occupation” of an HMO. On a natural reading, a condition “regulating the
occupation” of a house is apt to include one that governs how or by whom it may be
occupied. Contrary to the submissions of Nottingham, the Court of Appeal decision
does not introduce an exception to the operation of the legislation for a category of
persons or a defined set of circumstances, nor does it allow occupation at a lower
standard than would otherwise have been permitted in the circumstance of the
HMOs in question.
Discussion
18. Section 64(3)(a) indicates that the purpose of the imposition of conditions is
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. The question as to what sort of conditions may be imposed is
governed by section 67. Section 67(1)(a) provides that a licence may include such
conditions as the local housing authority considers appropriate for regulating all or
any of “the management, use and occupation of the house concerned”. Section 67(1)
is followed in section 67(2) by 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”.
Considering these words in their natural meaning, they extend sufficiently widely to
include the conditions with which we are concerned. I am persuaded that the words
“use and occupation” in section 67(1) are not used as a composite term. Section
67(2)(a) refers disjunctively to “the use or occupation of particular parts of the
house”. The inclusion of “occupation” in addition to “use” must have been intended
to extend the scope of permissible conditions. It may well be, as Mr Chamberlain
submits, that the conditions in respect of each of these houses related to the “use” of
the attic bedrooms. However, it seems clear that they relate to the “occupation” of
those rooms. As Mr Chamberlain put it, on a natural reading a condition “regulating
the occupation” of a house is apt to include one that governs how or by whom it may
be occupied. In my view, these conditions seek to regulate “the … occupation of
particular parts of the house by persons occupying it” and fall squarely within the
natural meaning of section 67(2)(a).
19. It is, however, necessary to stand back from the plain meaning of these
provisions and to consider whether such a reading is consistent with the object of
the legislation.
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20. In this regard it is significant that elsewhere in Part 2 of the 2004 Act the
manner of occupation of a house and the general characteristics of occupants are
considered relevant in contexts connected with HMOs and with housing standards
generally. In some instances, the personal occupation or activities of an occupier
will have a bearing on whether the legislation applies. Thus, for example, persons
carrying out domestic services are regarded as occupying the same household as
their employer if they are occupying rent free tied accommodation in the same
building (2006 Regulations, regulation 3); a full-time student is regarded as
occupying accommodation as his only or main residence if it is occupied for the
purpose of his full-time course (section 259(2)(a)); and some religious communities
are outside the HMO scheme if their principal occupation is prayer, contemplation,
education or the relief of suffering (Schedule 14, paragraph 5). Therefore, in certain
circumstances the operation of the legislative scheme will depend on the personal
characteristics of the occupants or their activities.
21. In the present case the Deputy President of the Upper Tribunal drew attention
in his judgment to the fact that prior to the present legislation, under the 1985 Act,
regard was had to the suitability of an HMO for occupation by a particular category
of occupier. Thus, in 1986 the Institution of Environmental Health Officers
published guidance on amenity standards for HMOs which distinguished between
different categories of HMOs. In particular, Category A comprised houses occupied
as individual rooms where there was some exclusive occupation and some sharing
of amenities but each occupant lived otherwise independently of all others. Category
B comprised houses occupied on a shared basis which would normally be occupied
by members of a defined social group, for example students or a group of young
single adults. In such houses the occupants each enjoyed exclusive use of a bedroom
but would share other facilities including a communal living space. Having
distinguished between these categories in this way on the basis of the manner of
occupation, the guidance then went on to set out different specifications for each
category. I note, moreover, that a revised version, “the 1994 Amenity Standards”,
remained current until very recently and was available on the website of the
successor body, the Chartered Institute of Environmental Health.
22. A similar approach can be detected in certain guidance issued following the
implementation of the current legislation. The Deputy President of the Upper
Tribunal in his judgment in the present case drew attention to the East Midlands
DASH Guide produced by housing authorities in the East Midlands including
Nottingham (see para 8, above) which recognises that different facilities may be
required for different modes of occupation. It provides that “in HMOs where the
occupants tend to live separately there should … be a sink/wash hand basin within
the living units.” Similarly, there was before the Court of Appeal in the present case
a note prepared by Mr Robert Fookes, counsel for the respondents, setting out
extracts from the current guidance issued by a selection of housing authorities
responsible for accommodation likely to be used by students attending Oxford,
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Cambridge and Russell Group universities. In half of these standards the housing
authorities distinguish between students and other occupants.
23. As the Deputy President of the Upper Tribunal observed, it is obvious that
nothing in this guidance can change the meaning of the present legislation.
Nevertheless, I agree with him that it provides a useful point of reference. It may be
thought that, as a matter of common sense, the manner of occupation of a room and
the type of occupant may have a bearing on the suitability of a particular room for a
particular use and that this is reflected in the guidance referred to above. That
guidance also supports the view that in practical terms the availability of communal
living space may be capable of compensating for an undersized bedroom. However,
the critical question is whether the approach reflected in such guidance is consistent
with the present legislation.
24. At the heart of the appeal on this ground lie two submissions by Mr Arden
on behalf of Nottingham. First, he submits that the conditions in issue here seek,
contrary to the policy of the legislation, to introduce an exception to its operation
for a category of persons or a defined set of circumstances. It is clear that Part 2 of
the 2004 Act is intended to apply to shared student houses. One purpose behind the
2004 Act was to reverse the effect of Barnes v Sheffield City Council as a result of
which many shared student houses fell outside the scope of the 1985 Act. Express
provision is made in section 259(2)(a) in respect of occupation for the purpose of
undertaking a full-time course of further or higher education and the effect of section
254(5) and Schedule 14, paragraph 4 is, by way of exception, to remove from this
regulatory scheme certain buildings occupied by students. Contrary to Nottingham’s
submission, however, I do not consider that the three conditions with which we are
concerned have the effect of undermining this purpose. These conditions do not
remove shared student houses from the regulatory scheme. On the contrary, as the
decisions of the First-tier Tribunal in the present cases demonstrate, the standard of
accommodation available in a shared student house will be inspected and subjected
to rigorous examination and the house will be licensed as suitable for a stipulated
number of occupants only if it is considered to be so suitable (if necessary subject
to conditions) by the housing authority for the area or, on appeal, by a specialist
tribunal.
25. Secondly, Mr Arden submits that there is no doubt that the purpose in
imposing the conditions in the present case was to allow occupation at a lower
standard or by a greater number than would otherwise have been permitted in the
circumstances of the HMOs in question. I should observe at this point that it is clear
that Nottingham in bringing this appeal and the Secretary of State in intervening
have clearly been motivated by a wish to ensure that HMOs provide acceptable
living conditions, to protect the vulnerable or potentially vulnerable groups that tend
to occupy HMOs and to avoid an interpretation of the legislation as a result of which
lower standards are to be considered appropriate for particular groups such as
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students. That is commendable. However, I consider that their concern is unfounded.
The imposition of conditions such as those imposed by the Tribunals and the Court
of Appeal in the present case do not have that effect. It is entirely appropriate, when
considering the suitability of accommodation in an HMO for a particular purpose,
to have regard to the mode of occupation. If the house is to be occupied by a group
living together “cohesively”, each having his or her own bedroom but sharing other
facilities including a kitchen/diner and a living room, the availability of those
additional facilities is a material consideration. In these circumstances the mode of
occupation means that the shared facilities will benefit all the occupants and, as a
result, this may compensate for a bedroom which is slightly smaller than the
recommended minimum. By contrast, where occupants of an HMO each live
independently of all others, sharing only bathroom, toilet and kitchen facilities, any
communal living space made available will not benefit the occupants in the same
way because of their different living arrangements.
26. It seems to me to be entirely appropriate, therefore, that in considering the
suitability of accommodation in an HMO regard should be had to the proposed mode
of occupation. Furthermore, in appropriate cases effect may be given to such
considerations by the imposition of conditions in the licence. This is not inconsistent
with the statutory scheme. As the Deputy President of the Upper Tribunal pointed
out in his judgment, certain types of accommodation may lend themselves to
different styles of occupation and it would be surprising if the 2004 Act did not
reflect that. The various guidelines referred to earlier in this judgment refer in
different ways to the need for flexibility in their application. In that regard, account
should be taken of the proposed mode of occupation where it is likely to influence
the quality of the accommodation made available to the occupant. It must be
emphasised that this does not permit the application of lower standards than would
otherwise be applicable. On the contrary, it is simply that there will be certain
circumstances in which, as a matter of common sense, it will be appropriate to have
regard to the mode of occupation when applying the same objective standards which
apply to all HMOs.
27. For these reasons, I consider that the power to impose conditions under
sections 64 and 67, Housing Act 2004, in order to make an HMO suitable for a
particular number of households or persons, can be used so as to limit the class of
persons for whom the HMO is suitable.
28. Finally, I should draw attention to the fact that there exist other mechanisms
to maintain standards of accommodation in HMOs, in particular the imposition of
mandatory conditions under Schedule 4 of the 2004 Act. In this regard, I note that
the Licensing of Houses in Multiple Occupation (Mandatory Conditions of
Licences) (England) Regulations 2018 (2018 No 616) (“the 2018 Regulations”),
came into force on 1 October 2018 and introduced additional mandatory conditions
in respect of floor area. As a result a licence must now include a condition requiring
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the licence holder to ensure that the floor area of any room in the HMO used as
sleeping accommodation by one person over ten years is not less than 6.51 square
metres (paragraph 2, inserting Schedule 4, paragraph 1A(2)(a)).
Ground 2
Submissions of the parties
29. On behalf of Nottingham, Mr Arden submits that if there is a power to impose
a condition based on a class of occupier, the conditions in the present case as directed
by the Tribunals and the Court of Appeal are irrational, both in the conventional
sense and in the sense that they are not effective to achieve their purpose, and
incapable of enforcement. While the conditions are designed to secure occupation
only by students, this, he submits, is not necessarily the same as “cohesive living”.
The judgments below are said to have proceeded on the basis of an image of student
life which is simply not true of all or necessarily most students, and this is an
irrational basis for determining who may or may not occupy an HMO. The
conditions go no further than setting up the possibility of sharing. In addition, it is
said that the condition limiting occupation “for a maximum period of ten calendar
months over a period of one year” is irrational. Either the rooms are or are not
suitable to be used as sleeping accommodation all the year round.
30. Nottingham objects that the condition that the attic rooms be occupied for
only ten months over the course of a year could not practicably be monitored. It also
maintains that while it is possible to ensure that occupants are all in full-time
education, that requirement cannot in practice be enforced.
31. The Secretary of State has taken no position on this ground of appeal.
32. Mr Chamberlain submits that, while not all students live in the same way, the
proxy employed by the condition is sufficiently precise. Moreover, the First-tier
Tribunals which heard the initial appeals were well placed to judge whether cohesive
living was the norm among students in the area where the properties were located.
With regard to enforceability, he takes issue with Nottingham.
Discussion
33. I agree with the Court of Appeal that 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
Page 15
bedrooms to be let to students. That deficiency is, however, cured by the further
conditions introduced by the Court of Appeal.
34. The reasoning of the First-tier Tribunals and the Upper Tribunal in this case
makes clear that the intention was to restrict occupation to students because they
were considered to be a category of occupants who were likely to live in a cohesive
manner. In the Upper Tribunal the Deputy President observed that by “cohesive
living” the First-tier Tribunal clearly had in mind “the level of shared activity and
social interaction to be expected in a ‘shared-house’ or ‘Category B’ HMO, as
described at greater length in the policy documents of other local authorities”. The
first issue for consideration under this ground is therefore, as Mr Chamberlain put
it, whether a condition limiting the occupation of each of the houses to occupation
by persons engaged in full-time education is a sufficiently precise proxy for
occupation by persons living together cohesively.
35. All students are individuals and their respective activities and life-styles will,
no doubt, vary considerably. Nevertheless, it does seem to me that the normal state
of affairs generally to be expected when students share a student house is that there
will be a high level of social activity and social interaction among them and that they
will all make extensive use of the shared living facilities. There can be no guarantee
that any given student occupier will make full use of the shared facilities, but the
availability of such facilities, emphasised by the Court of Appeal, coupled with the
normal expectation of cohesive living in a student house makes it reasonable to
adopt this proxy in this context. It is also significant that the members of the Firsttier Tribunals in these cases, with their experience of student accommodation in
Nottingham, considered this a reasonable approach. While I agree with the Deputy
President of the Upper Tribunal that an alternative condition, perhaps more closely
reflecting its rationale, might require that all occupants be members of a group who
intend to share the communal living space, the proxy adopted is sufficiently precise.
Moreover, the alternative might give rise to difficulties of enforcement.
36. The requirement that the attic rooms may only be occupied for ten months in
each year was clearly intended to reinforce the requirement that occupation be by
full-time students. If the latter requirement is lawful, the former is strictly
unnecessary. I consider that the requirement limiting occupation to ten months in
each year is irrational. If a room is suitable for occupation for sleeping for ten months
in the year, it is suitable for such occupation for the entire year. Moreover, full-time
students often require accommodation for the entire year. In these circumstances, it
is unnecessary to consider whether this requirement is enforceable. I would vary the
conditions imposed in respect of each property to delete the requirement that the
attic rooms may only be occupied for ten months in each year.
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37. Finally, it is said on behalf of Nottingham that while it is possible to ensure
that occupants are all in full-time education, it is not in practice possible to enforce
the requirement. Nottingham points to the 12 months assured shorthold tenancy
agreements employed by the respondents. Each requires the tenant to “ensure that
the property’s strict purpose as a set of lets to students of the University is not
prejudiced” and also contains a clause which entitles the landlord to re-enter if the
tenant ceases to be a student of the university. However, Nottingham draws attention
to the practical difficulties of evicting a tenant in these circumstances which, it is
said, would make it practically impossible to enforce the conditions in the way
envisaged by the legislation. I note that if a landlord tries but fails to evict tenants
who have ceased to be full-time students, for example because the court considers it
unreasonable to make the order, the landlord may well have a reasonable excuse for
permitting the occupants to remain and a defence under section 72(5) of the 2004
Act to the offence of failing to comply with the licence condition. However, the
sanction of revocation of the licence will be available which, in itself, should be a
sufficient sanction.
Conclusion
38. For these reasons, and subject to the deletion of the requirement of occupation
for only ten months in each year, I consider that the conditions imposed by the
Tribunals and the Court of Appeal, considered cumulatively, in respect of 44,
Rothesay Avenue and 50, Bute Avenue, respectively, were entirely lawful.
Accordingly, I would vary the conditions to delete the requirement of occupation
for only ten months in each year but would otherwise dismiss the appeal.
