A local authority sought to prevent two attic rooms from being used as bedrooms in houses in multiple occupation. The case concerned the licensing regime and room-size guidance applicable to those licences. The Court had to decide how far substantial shared living space, and the way residents lived together, could be taken into account.
The houses and the disputed conditions
The appeal concerned two student houses with attic bedrooms and sloping ceilings. When low areas were excluded, the rooms measured 5.89 and 6.89 square metres. The council’s local guidance generally recommended eight square metres in these circumstances, with some flexibility for compensating features.
The new licences prohibited sleeping in those attic rooms unless alterations created eight square metres of usable space. The Bute licence also limited the house to five occupants and allowed the attic for sleeping only if it was let with another room.
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The decisions under appeal
The First-tier Tribunals allowed the respondents’ appeals. They accepted the guidance as generally reasonable, but found that the low areas could be used for a desk and storage and that the communal living space was substantially larger than Nottingham required. They considered the rooms adequate for cohesive occupation by students or a similar group. For Rothesay Avenue, the tribunal substituted a condition permitting sleeping only by a full-time student residing for no more than ten calendar months in a year. The Upper Tribunal required the same condition for Bute Avenue and dismissed Nottingham’s appeals. Its Deputy President held that a condition could address a particular mode of occupation, including cohesive shared-house living, where the house was suitable for the permitted number on that basis.
The Court of Appeal agreed, but added conditions requiring the ground-floor kitchen, diner and living room to remain available only for communal living, and prohibiting any bedroom from being let to anyone other than a full-time student.
Conditions may limit the class of occupier
Lord Lloyd-Jones gave the judgment, with which Lady Hale, Lord Wilson, Lord Carnwath and Lady Black agreed. Nottingham said that sections 64 and 67 concerned only the number of households or persons and could not restrict who might occupy the house or permit a lower standard for students. The Secretary of State accepted that occupation might be limited to a class, but not so as to authorise more people than would otherwise be allowed.
The court held that the language was wide enough. Section 67 permits conditions regulating the management, use and occupation of the house, including restrictions on the use or occupation of particular parts. “Occupation” extends beyond “use” and can govern by whom a part is occupied. The reading also fitted the wider scheme. Occupiers’ characteristics and activities are relevant elsewhere, including the provision treating accommodation occupied for a full-time course as a student’s only or main residence. Amenity guidance had long distinguished shared houses occupied by groups such as students from accommodation in which people live independently, and had treated communal space as potentially compensatory.
The conditions did not take student houses outside the licensing scheme or apply lower standards. Where occupants live cohesively and share kitchen, dining and living facilities, those facilities benefit every occupant and may compensate for a bedroom slightly below the recommended minimum. The same objective standards therefore apply, while account is taken of the proposed mode of occupation. Sections 64 and 67 can be used to limit the class of person for whom an HMO is suitable.
The ten-month limit was irrational
The tribunal conditions were incomplete because they neither preserved communal space nor restricted the other bedrooms to students, but the Court of Appeal’s additions cured that deficiency. Restricting occupation to full-time students was a sufficiently precise proxy for cohesive living. Although individual students differ, shared student houses are normally expected to involve substantial social interaction and extensive use of communal facilities. The First-tier Tribunals’ local experience supported that assessment.
The ten-month restriction was irrational. A room suitable for sleeping for ten months is suitable throughout the year, and full-time students often require year-round accommodation. Practical difficulty in evicting someone who ceased to be a student did not make the education condition unenforceable. A landlord who tried but failed to obtain possession might have a reasonable excuse and a defence under section 72(5), while revocation of the licence was itself a sufficient sanction.
Verdict: The Court deleted the ten-month occupation limit for both properties and otherwise dismissed the council’s appeal. The student-occupation conditions and protection of the communal space were lawful under the scheme at issue.
Source: Nottingham City Council v Parr and another [2018] UKSC 51
