Council loses Supreme Court battle over HMO licence conditions

Nottingham City Council has lost a Supreme Court case over whether it was right to prohibit the use of two attics as bedrooms.

The case in Nottingham City Council v Parr arose over two houses in multiple occupation known as 44 Rothesay Avenue and 50 Bute Avenue owned by Trevor Parr Associates.

Both are let to students and have attics with useable space of less than eight square metres.

Nottingham imposed licence conditions prohibiting their use for sleeping.

Trevor Parr Associates appealed to the First-tier Tribunal against these conditions. The FTT deleted them but substituted a condition that the attics could only be used for sleeping accommodation by a full-time student for a maximum of 10 months in each year.

Nottingham appealed unsuccessfully to both the Upper Tribunal, and then to Court of Appeal, where further conditions were added that space be kept available for communal living, and that no bedrooms be let other than to full-time students.

The council then appealed to the Supreme Court contending that the power to impose conditions under sections 64 and 67 of the 2004 Act cannot be used to limit the class of persons for whom it is suitable, and that the conditions imposed by the tribunals and Court of Appeal were irrational and unenforceable.

But in a unanimous judgment given by Lord Lloyd-Jones, the Supreme Court rejected Nottingham’s case, other than deleting the requirement of occupation for a maximum of ten months in each year.

The court said 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”, and section 67(2) sets out a non-exhaustive list of permitted conditions including “conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it”.

“These words in their natural meaning are sufficiently wide to include the conditions imposed by the tribunals and the Court of Appeal,” the judgment said.

“Such a reading is also consistent with the object and purpose of the 2004 Act. Elsewhere in Part 2 of the 2004 Act, the manner of occupation and characteristics of occupants are considered relevant in contexts connected with HMOs and housing standards generally.”

It concluded: “The condition limiting the occupation to persons engaged in full-time education is rational and enforceable. The court considers, however, that the requirement limiting occupation to ten months in each year is irrational.”

Cllr Jane Urquhart, Nottingham City Council’s Portfolio Holder for Housing and Planning, said: "We believe as a matter of principle and fairness that there should be a minimum acceptable bedroom size that applies to everyone.

“Therefore we’re disappointed with the Supreme Court ruling because in effect, it means one group of people are being forced to accept a lower standard of accommodation than others.

“There is a real concern that this could be the thin end of the wedge and that the same interpretation could be applied to other minimum standards for HMOs such as the number and size of bathroom or kitchen facilities.

“The Supreme Court ruling is based on the law as it stands but the Government supported the Council’s appeal so we hope it will seriously consider revising the existing legislation to end this unfair anomaly.”

Mandatory national minimum sleeping room sizes were introduced from the beginning of this month through amendments to the Housing Act 2004 - see Houses in Multiple Occupation and licensing reform by Kate O'Brien and Matthew Watts.

Nottingham is understood to believe that this showed that it took the right approach in taking the case forward to the Supreme Court as the bedroom was not suitable.

Mark Smulian