Upper Tribunal allows appeal by council and orders fresh hearing over imposition of HMO licence condition

It also failed to take into account relevant considerations, but did consider irrelevant ones, Judge Elizabeth Cooke found.

Landlord Elizabeth Collins owns a two-storey mid-terrace house with four bedrooms, a bathroom, boxroom, a lounge/dining-room, toilet and kitchen.  It is let to four people on assured shorthold tenancies who share bathroom, living and kitchen facilities.

Ms Collins was granted a licence in April 2024, but this included a condition to take reasonable steps to reduce the number of occupants from four to three, using the freed-up bedroom as communal space.

She appealed to the FTT arguing the house was suitable for four sharers as the first floor boxroom made up for the smaller living room, and that the bedrooms were on average at least 10 m2 each. Letters from the occupants stated they were happy with their living arrangements.

Portsmouth said much of the lounge/dining room was not usable space - and so did not meet its space standards - because it is also a walkway through to the kitchen, which in turn was well below the space expected for four sharers. It said the boxroom did not provide communal space.

The FTT concluded that the property was suitable for four occupiers, and revoked the condition requiring this to fall to three.

It gave weight to the views of the occupiers and found the kitchen “functional for the number of shares using it”.

Portsmouth argued in its appeal that the FTT's decision was irrational and wrong in law, and gave insufficient consideration to the walk-through nature of the lounge/dining room, improperly counted non-communal space, disregarded the council's room size guidance - even though the lounge was 51% smaller than required - and did not respond to the council's concerns that the kitchen could accommodate only one person at a time.

Judge Cooke said the condition requiring a reduction in occupation was unusual but “I see nothing unlawful about the condition”.

She explained that if the FTT disagrees with a local authority’s policy it must explain why.

“Nowhere in its decision did the FTT say why it was satisfied that the city council's space standards were so irrelevant or misconceived that rooms falling well below the expectations in those standards were nevertheless satisfactory.”

Its failure to explain why it was departing so far from Portsmouth’s guidance was an error of law.

The FTT’s failure to respond to evidence that only one person could work in the kitchen at one time meant it failed to take into account relevant considerations.

Judge Cooke said: “Furthermore I find the FTT's approach to space very puzzling. It is hard to see why the cumulative size of the bedrooms is relevant, when each resident has the use of only one.

“And as the council argued, the counting of the boxroom along with the bedrooms…and as compensation for the size of the kitchen and dining room…is difficult to make sense of.”

She added that the occupants’ opinions were “irrelevant to whether the property is objectively reasonably suitable for occupation by four residents”.

The case was remitted to the FTT for consideration by a different panel.

Mark Smulian