We have been following the legal battle over HMO licensing between Nottingham City Council and one of their student landlords with some interest. In the latest instalment, the Supreme Court removed conditions applied by the Upper Tribunal in an earlier appeal which confirms our view (and contradicts a view held by PCC during the 5 years of Additional Licensing just ended), that you can take the type of tenant into account.
A simple example, is that gaps between spindles on stairs (balustrades) need to be 4 inches or less to prevent small children falling through, but in a house which will only be let to adults, is this relevant? PCC always argued they could not guarantee the type of tenant or their visitors, so all rules should apply to all properties. The new ruling shows that this is not the case and allowances can and should be made based on the type of tenant.
We often recommend members challenge or appeal decisions by inspectors, partly because they are inconsistent from one house to the next, but also because many of them are inappropriate given the type or usage of the property in question. So if you are asked to do something the benefit of which is not obvious, do consider challenging it before you spend your hard earned cash on what may be unnecessary alterations.
Full details of this particular case follow - it is interesting that having made a decision and having that decision overturned at appeal, the council appealed the decision twice more, each time losing more than they had prior to appealing.
On 10 October 2018, the Supreme Court handed down their judgement in the case of Nottingham City Council (Appellant) v Parr and another (Respondents)  UKSC 51
The appeal concerned conditions attached to two HMO licences issued by Nottingham City Council for 44 Rothesay Avenue and 50 Bute Avenue. Both properties were rented to students and each had an attic bedroom with an area of useable living space below eight square metres. The two bedrooms had a total floor area of 9.75m2 and 11m2 respectively, with the sizes reduced to 5.89m2 and 6.89m2 when floor area beneath a sloping ceiling of 1.53m or less was discounted. In each case, the council granted an HMO licence but imposed a condition prohibiting the use of the attic bedroom for sleeping.
The respondents initially appealed to the First-tier Tribunal against the imposition of the conditions. In both appeals, the First- tier Tribunal deleted the council"s condition prohibiting the room from being used as a bedroom. In the case of 44 Rothesay Avenue it substituted a condition that the attic bedroom may only be used for sleeping accommodation by a full-time student who resides in the bedroom for a maximum of ten months in each year.
The council then appealed both decisions to the Upper Tribunal, which dismissed the appeals and directed that both attic rooms could be used as a bedroom by a full-time student who resides in the bedroom for a maximum of ten months in each year.
The council then appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal and included a further licence conditions that the communal space must be kept available for communal living only and that no bedrooms be let to persons other than full-time students.
The council then appealed to Supreme Court, arguing that the power to impose licence conditions under sections 64 and 67 of the Housing Act 2004 cannot be used to limit the class of persons for whom the HMO is suitable, and that conditions imposed by the First-tier Tribunal, Upper Tribunal and the Court of Appeal were irrational and unenforceable.
In an important judgement, the Supreme Court unanimously dismissed Nottingham City Council"s appeal, whilst making one adjustment to the conditions imposed by the lower courts. The Supreme Court decided that the restriction on letting to students for 10 months of the year should be removed.
In making their judgement, the Supreme Court made clear that the power to apply HMO licence conditions is sufficiently wide to permit the conditions imposed by the Tribunals and the Court of Appeal. They found that it was appropriate to have regard to the proposed mode of occupation when considering the suitability of accommodation in a licensed HMO.
As such, the Supreme Court found that the condition limiting the occupation to persons engaged in full-time education was both rational, enforceable and lawful.
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