Storeyville: houses in multiple occupation

RCJ portrait 146x219The High Court has confirmed the scope of the licensing regime for houses in multiple occupation. Suzanne Ornsby QC and George Mackenzie explain why.

The High Court has today dismissed an appeal by way of case stated brought by Bristol City Council against the decision of the Bristol Magistrates’ Court to the effect that a House in Multiple Occupation (“HMO”) within their administrative area was not subject to the mandatory HMO licensing regime under Part II of the Housing Act 2004.

The HMO in question was a maisonette whose living accommodation was set out over two storeys of a four storey building. It was accessed by way of a private staircase which led from the second storey of the building to ground floor level. The staircase - and the landings associated with it - therefore extended over a small part of two other storeys of the building.

Bristol City Council prosecuted the HMO’s manager, Digs (Bristol) Limited, for not having an HMO licence for the property. Such a licence would have been required if the property “comprised three storeys or more”: art. 3(2)(a) of the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006. Following a preliminary hearing in the Bristol Magistrates’ Court District Judge Zara dismissed the summons on the basis that the property had two storeys and not, as the city council contended, four.

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The city council’s appeal by way of case stated was unsuccessful. Mr Justice Burnett accepted that a “storey” of a building or house would ordinarily be understood as meaning “the whole floor, that is all the space on a given level, within that building”. Article 3(2)(a) of the 2006 Order is concerned with whole storeys associated with HMOs rather than parts of storeys. He therefore rejected the city council’s argument that because the property is a self-contained flat on four floors it must also comprise three or more storeys.

The first limb of art. 3(3)(f) of the 2006 Order deals with parts of storeys associated with HMOs. The judge rejected the city council’s argument that the property’s staircase and landings, which constituted parts of storeys, were used as “living accommodation”. The judge accepted Digs’ argument that the second limb of art. 3(3)(f) was concerned with whole storeys rather than parts of storeys. It did not therefore bring the staircase and landings into account. Mr Justice Burnett examined the purpose behind the requirement for mandatory HMO licensing. He concluded that it did not support an interpretation of the legislative framework which would have embraced the property within it.

The judgment means that two-storey maisonettes with private means of access do not generally fall within the HMO licensing regime. This is an important strand to Bristol City Council’s HMO licensing policy. The council currently requires such properties within its administrative area to be licensed and has also successfully prosecuted a number of individuals for failing to have licences for such properties. There is now expected to be litigation in which those individuals seek the appropriate restitution and redress.

Suzanne Ornsby QC and George Mackenzie are barristers at Francis Taylor Building and acted for Digs (Bristol) Limited in the Bristol Magistrates’ Court and in the High Court. They were instructed by Kevin Gibbs of Bond Dickinson LLP.

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