Nottingham City Council has applied to the Court of Appeal for permission to appeal after the Upper Tribunal dismissed its challenge to terms of Houses in Multiple Occupation (HMO) licences that restricted the occupation of bedrooms to a particular type of occupier.
In Nottingham City Council v Dominic Parr Trevor Parr Associates Ltd  UKUT 71 (LC) the Deputy President of the Upper Tribunal, Martin Rodger QC, was asked to consider whether it was lawful for an HMO licence to restrict the use of a bedroom in such a way.
The first-tier tribunals had thought that it was lawful to do so, but the city council disagreed and challenged the terms of the licences.
The background to the case was that Nottingham had issued two HMO licences prohibiting two second floor bedrooms due to their size.
The council’s space standards guidance required bedrooms to have a minimum usable floor area of 8m2 in HMOs. By usable floor area the council only includes floor area with head height of more than 5 foot (approx. 1.53m).
The floor area of two separate bedrooms in different HMOs was: 5.89m2 (usable), total 9.75m2, and 6.68m2 (usable), total 10.16m2.
The First-tier Tribunals allowed the respondents’ appeals and deleted the relevant conditions. In the licence for one of the properties, the FTT substituted an alternative condition of its own, namely that “the second floor front bedroom may only be used for sleeping accommodation by a person engaged in full-time education and who resides in the dwelling for a maximum period of 10 calendar months over a period of one year”.
No such condition was explicitly imposed in the licence for the second property although in its decision the FTT justified its conclusion by saying that there were “sufficient compensating features in the property to make it suitable for students or similar cohesive occupation for six persons in six households.”
The Deputy President upheld the FTTs’ decisions. He said: “I am satisfied that there is nothing unlawful in a condition restricting the use of sleeping accommodation in part of an HMO to a person in full-time education, if the decision maker is satisfied that, looked at as a whole, the HMO is suitable for the number of households specified in the licence.
“An alternative condition, perhaps more closely reflecting the reason for permitting the use of a room smaller than would normally be acceptable, might require that the occupiers be members of a group who intend to share the communal living space, but I do not think the reference to students makes the condition unlawful.
“Nor do I consider that the references to ‘cohesive living’ and the restriction in the use of the bedroom to a period of 10 months in the year are unlawful.”
Nottingham City Council has now revealed that it plans to take the case to the Court of Appeal.
David Hobbs, Operations Manager – Housing Licence and Compliance, said the council believed there was a matter of principle at stake as the decision had made it clear that students, in this case, or those living in cohesive groups should, in effect, accept a lower standard of living, in this case smaller bedrooms.
He said: “One could argue that students in particular spend more time in their bedroom than those that might live as a non-cohesive group. But why stop there? The council is concerned that this is the thin end of the wedge may also apply across other areas of the HMO amenity guidance such as fewer kitchen / bathroom amenities, a smaller kitchen / living facilities.”