Nottingham City Council (Appellant) v Parr and another (Respondents)

Cite as:[2018] UKSC 51
Hand-down Date:October 10, 2018
 
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Michaelmas Term [2018] UKSC 51

On appeal from: [2017] EWCA Civ 188

JUDGMENT

Nottingham City Council (Appellant) v Parr and another (Respondents) before

Lady Hale, President Lord Wilson Lord Carnwath

Lady Black Lord Lloyd-Jones JUDGMENT GIVEN ON 10 October 2018 Heard on 13 June 2018 Appellant Respondents Andrew Arden QC

None Annette Cafferkey (Instructed by Nottingham City Council)

Advocate to the Court Martin Chamberlain QC

Intervener

(Secretary of State for Housing, Communities and Local Government) Jonathan Moffett QC

Heather Emmerson

(Instructed by The Government Legal Department)

LORD LLOYD-JONES: (with whom Lady Hale, Lord Wilson, Lord Carnwath and Lady Black agree)

  1. The appellant, Nottingham City Council ("Nottingham"), is the licensing authority for those houses in multiple occupation ("HMOs") in its district which are licensable under Part 2, Housing Act 2004. This appeal concerns two HMOs, namely 44, Rothesay Avenue, Lenton, Nottingham NG7 1PU and 50, Bute Avenue, Lenton, Nottingham NG7 1QA. Both are owned by the second respondent, Trevor Parr Associates Ltd, which carries on the business of providing accommodation for students. The first respondent Dominic Parr is the managing director of the second respondent and the manager of the properties.

  2. Nottingham appeals against the decision of the Court of Appeal dated 29 March 2017, dismissing its appeal against the decision of the Upper Tribunal (Lands Chamber) dated 9 February 2016, dismissing its appeals against decisions of the First-tier Tribunal dated 5 November 2014 (44, Rothesay Avenue) and 6 May 2015 (50, Bute Avenue) respectively, allowing the respondents' appeal against the imposition by Nottingham of certain HMO licensing conditions.

  3. On this appeal to the Supreme Court the respondents have not appeared and have not been represented. In these circumstances, at the request of the Court an Advocate to the Court was appointed in order to argue the grounds for resisting the present appeal and we are grateful to Mr Martin Chamberlain QC for performing this role. In addition, the Secretary of State for Housing, Communities and Local Government ("the Secretary of State") has intervened in this appeal. We are grateful to all counsel for their submissions.

    Legislation

  4. The Housing Act 2004, Part 2 replaced the previous law on HMOs which was to be found in the Housing Act 1985, Part XI ("the 1985 Act"). The 1985 Act defined an HMO as "a house which is occupied by persons who do not form a single household" but left the word "household" undefined. In Barnes v Sheffield City Council (1995) 27 HLR 719 the Court of Appeal set out a number of factors relevant to determining whether occupants were living together as a single household. It held that in the particular circumstances of that case a group of students sharing a house constituted a single household. The 1999 consultation paper, "Licensing of Houses in Multiple Occupation - England" (DETR, 1999), which preceded the 2004 Act observed (section 2, para 24) that, as a result of this judgment, housing authorities were wary of attempting to use their HMO powers in shared houses, particularly

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    those occupied by students. The 2004 Act was intended, inter alia, to extend the regulatory scheme of HMOs to include shared student accommodation, subject to certain exceptions.

  5. The 2004 Act introduced for the first time a system of licensing of HMOs authorising occupation of the house concerned by not more than a maximum number of households or persons specified in the licence (section 61(2)). A building or part of a building will qualify as an HMO if the living accommodation is "occupied by persons who do not form a single household" (section 254(2)(b), (3) and 4(c)) and if "occupied by those persons as their only or main residence or they are to be treated as so occupying it" (section 254(2)(c), (3) and 4(d)). Section 258 makes provision for determining when persons are to be regarded as not forming a single household for the purposes of section 254. They are to be so regarded unless they are members of the same family or their circumstances are of a description specified in regulations (section 258(2)). Such provision is made in the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (SI 2006/373) ("the 2006 Regulations"). Section 259 makes provision for determining when persons should be treated as occupying premises as their only or main residence. In particular, a person is to be so treated, inter alia, if premises are occupied by the person as the person's residence for the purpose of undertaking a full-time course of further or higher education (section 259(2)(a)).

  6. If an application for a licence is made to the local housing authority, it may grant a licence if it is satisfied as to the matters mentioned in section 64(3). Those requirements include "that the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67" (section 64(1), (2), (3)(a)). Section 67 provides in material part:

    "67 Licence conditions

    (1) A licence may include such conditions as the local housing authority consider appropriate for regulating all or any of the following -

    (a) the management, use and occupation of the house concerned, and

    (b) its condition and contents.

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    (2) Those conditions may, in particular, include (so far as appropriate in the circumstances) -

    (a) conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it; ...

    ...

    (5) A licence may not include conditions imposing restrictions or obligations on a particular person other than the licence holder unless that person has consented to the imposition of the restrictions or obligations.

    (6) A licence may not include conditions requiring (or intended to secure) any alteration in the terms of any tenancy or licence under which any person occupies the house."

    Guidance

  7. At the material time, minimum sizes of bedrooms in HMOs were not prescribed in legislation. However, Nottingham issues guidance to its housing officers on the operation of this licensing system. For present purposes the relevant document is "HMO Amenity Guidance 3 - Space Provision for Licensable and Non-Licensable HMOs". This states that in the case of bedrooms in single occupation in HMOs where there is adequate dining space elsewhere and where cooking facilities are not provided in the room the minimum space provision is eight square metres. A general note adds:

    "The dimensions and areas specified shall normally be regarded as the minimum, particularly with regard to new proposals. However it is recognised that existing buildings cannot always achieve these minima. A degree of flexibility will sometimes be possible if other compensating features are present. Conversely it should be noted that irrespective of the dimensions, the shape and useable living space of any room is a determining factor in the calculation of the maximum number of people for which it is suitable."

    In carrying out its measurements Nottingham disregards all space with a floor to ceiling height of less than 1.53 metres.

  8. Nottingham participates with other housing authorities in the East Midlands in an organisation named East Midlands Decent and Safe Homes which also sets out amenity standards for HMOs in "Amenity and Space in HMOs: A Landlords Guide" ("the East Midlands DASH Guide"). This recommends adopting eight square metres as the minimum size for bedrooms of this sort but also states:

    "The standards are usually regarded as a MINIMUM but are a guide only. Other factors or compensatory features will be taken into account when inspecting a property, therefore allowing for a degree of flexibility in certain circumstances. These factors could include the shape of the usable living space, or the needs and wishes of the occupants." (Original emphasis)

    The properties

  9. 44, Rothesay Avenue and 50, Bute Avenue are both terraced houses of traditional brick construction with a slate roof. Both are used for letting to students and in each case the attics have been converted into bedrooms. In each property the front attic bedroom has a sloping ceiling which reduces the area regarded by Nottingham as useable living space below eight square metres. At 44, Rothesay Avenue the front attic room has a total floor area of 9.75 square metres but...

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