Councils "to face restitution claims" over HMO licences after maisonette ruling

Local authorities could face claims for restitution of licence fees paid in relation to houses in multiple occupation after a district judge ruled that a key part of a council’s policy was unlawful, it has been claimed.

Bristol City Council had prosecuted Digs (Bristol) Limited under the Housing Act 2004 over an HMO in St John Street where the living accommodation was contained in a maisonette on the upper two floors of a two-story building. The ground and first floor also contained a maisonette.

The upper maisonette was accessed by a private staircase leading from the ground floor to the second floor. Items had been stored in the area.

There was no dispute that the maisonette was an HMO, as it was at the relevant time occupied by five individuals who did not form a single household.

Bristol argued that the ground floor hallway and first floor landing associated with access to the upper maisonette constituted a ‘storey’ for the purposes of Article 3(2) of the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006.

Article 3(2)(a) cites as a condition that “the HMO or any part of it comprises three storeys or more”.

The defence disputed that the maisonette met the requirements for licensing found in the Order.

District Judge Zara, sitting in Bristol Magistrates’ Court, acquitted the defendant, finding that the hallway and landing comprised parts of storeys, and not storeys in their own right.

He therefore concluded that two-story maisonettes with private means of access do not generally fall within the HMO licensing regime.

Bristol’s policy had been to require this type of property within its administrative area to be licensed. The council had also prosecuted a number of individuals for failing to have HMO licences in respect of such properties.

According to counsel to Digs (Bristol), Suzanne Ornsby QC and George Mackenzie of Francis Taylor Building, “there is now expected to be litigation in which those individual seek the appropriate restitution and redress”.

See: Digging for victory by Suzanne Ornsby QC and George Mackenzie.