Supreme Court dismiss Nottingham City Council’s appeal: mode of occupation is relevant when assessing accommodation in a licensed HMO

Friday, October 12th, 2018 - Supreme Court

On 10 October 2018, the Supreme Court handed down their judgement in the case of Nottingham City Council (Appellant) v Parr and another (Respondents) [2018] 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.

Whilst this case is important in clarifying the rules for imposition of HMO licence conditions, the government have since introduced absolute minimum bedroom sizes for all HMO licences approved or renewed on or after 1 October 2018 (read here).

The full Supreme Court judgement can be read here.

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