Council fails in High Court appeal over house in multiple occupation ruling
The High Court has rejected a city council’s appeal over a ruling that a house in multiple occupation (HMO) in its area was not subject to the mandatory licensing scheme under the Housing Act 2004.
In October 2013 a judgment by District Judge Zara in Bristol Magistrates’ Court saw the termination of Bristol City Council’s prosecution of Digs (Bristol) Limited for managing an unlicensed HMO.
The local authority had alleged that the company had failed to obtain a licence for a maisonette within 12 John Street, Bristol as required by s. 55 of the Housing Act 2004 and the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006.
The central question was whether the maisonette fell within the description of HMOs which the statutory scheme requires to be licensed.
Bristol argued that a licence was required because the maisonette or any part of it comprised three storeys or more (and therefore fell within article 3(2)(a) of the 2006 Order). The authority argued that the property actually comprised four storeys.
However, the district judge accepted the arguments advanced by Digs to the effect that it comprised only two storeys and therefore did not need licensing.
The maisonette was set out over two storeys of a four-storey building. Access was by way of a private staircase leading to the second storey of the building to ground floor level. The staircase, and the associated landings, extended over a small part of two other storeys of the building.
The judge had posed two questions:
- “Was I right to conclude that Part 2 of the Housing Act 2004 did not apply to the property on the grounds that it was not a house in multiple occupation falling within any prescribed definition contained in the 2006 Order?
- Was I right when calculating whether the property or any part of it comprised three or more storeys for the purposes of Article 3 of the Order, to exclude from the calculation all or any of the following: (a) The privately accessed ground floor hallway; (b) the stairs to the first floor; (c) the first floor landing; (d) The stairs from the first floor landing to the second floor?"
The local authority appealed but in Bristol City Council v Digs (Bristol) Ltd [2014] EWHC 869 Mr Justice Burnett upheld the district judge’s conclusion that on the evidence before him, the upper maisonette at 12 John Street did not fall within those categories of HMO required to be licensed.
“The answer to both the questions he posed is ‘yes’,” the judge said, dismissing the appeal.
Counsel to Digs – Suzanne Ornsby QC and George Mackenzie of Francis Taylor Building – argue that the High Court’s judgment leaves open the possibility of claims against local authorities for restitution of licence fees.