Upper Tribunal judge finds for council in dispute over HMO licensing and provision of microwave ovens

His Honour Judge Johns KC rejected an appeal brought by Oxford Hotel Investments over a decision by the First-Tier Tribunal (Property Chamber) in favour of Great Yarmouth Borough Council.

The judge said: “Mere provision of a microwave does not amount to cooking facilities within the meaning of s.254(8)” and this meant Great Yarmouth “was right to declare the building known as St George Hotel…a house in multiple occupation and so subject to the important controls of the act”.

Oxford Hotel Investments lets 62 rooms of which 32 were occupied as homeless accommodation.

When Oxford Hotel appealed to the FTT, its members inspected the building and found “… each [room] contained a fridge, a microwave, a shower and wash hand basin and WC (which were en-suite to the bedroom area), and a microwave oven…None of the rooms seen had any food preparation area, or storage for cutlery/crockery.”

The FTT determined the hotel satisfied the standard test for a house in multiple occupation (HMO) and the rooms lacked cooking facilities, one of the basic amenities.

Oxford Hotel argued that the legislation meant that the presence of any one of the basic amenities listed in s.254(8) - a toilet, washing facilities, or cooking facilities - was enough to avoid the building being declared an HMO, but the FTT rejected this.

HHJ Johns said: “[The appellant's] suggestion that the presence of any one of the basic amenities in the rooms is enough for the building to fall outside s.254(2)(f) and so not meet the standard test can be dealt with briefly.

“It was rightly rejected by the FTT. It is plainly contrary to the clear language of s.254(2)(f) which refers to the lack of one or more of the basic amenities.

“The question as to whether the provision of a microwave constitutes cooking facilities within the meaning of s.254(8) so that all three basic amenities were in fact present in this case requires more careful consideration.”

A microwave alone did not in itself constitute cooking facilities as it was “unlikely to have been intended by Parliament that this statutory regulation could be escaped by the simple expedient of plugging in a microwave”, the judge said.

Nor could a room turn from one in an HMO to a self-contained flat “simply by plugging in a microwave”.

HHJ Jarman added: “The further the facts move away from [a] full kitchen, the harder it will become to describe what is provided as cooking facilities.

“The particular facts of this case have, in my judgment, moved too far away to be described as cooking facilities. Those facts are that there is no relevant storage, no food preparation area, and just a microwave with fridge and kettle.”

The judge meanwhile criticised the appellant over oral submissions citing Barker v Shokar as saying that a microwave satisfied the statutory definition for cooking facilities.

“The problem is that the real [case] says no such thing. Nor does any other part of the judgment in that case,” the judge said.

“[The director] ended up accepting that this misleading use of authority was the product of AI. It is one which illustrates again, in courts and tribunals, the dangers of using AI for legal research without any checks.”

Mark Smulian