Digging for victory

A district judge has ruled that a key part of a council's house in multiple occupation licensing policy was unlawful. Suzanne Ornsby QC and George Mackenzie explain the background to the judgment.

An eagerly-awaited judgment of District Judge Zara, sitting in the Bristol Magistrates’ Court, has led to the termination of Bristol City Council’s prosecution of a property management company, Digs (Bristol) Limited, for managing an unlicensed HMO.

The judgment is of wider interest because it means that an important strand of Bristol City Council’s HMO licensing policy is unlawful and raises the spectre of claims for restitution of licence application fees dating back to 2006. Other local authorities are also bound to be affected.

The prosecution was brought in respect of an HMO whose living accommodation was contained in a maisonette on the upper two floors of a four storey building. The ground and first floor also contained a maisonette. The Upper Maisonette was accessed by a private staircase which led from the ground floor to the second floor. Bristol City Council alleged that the ground floor hallway and first floor landing associated with this access each amounted to a “storey” for the purposes of art. 3(2)(a) of the Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006.

The District Judge accepted that a “storey” meant all of the rooms contained on the same level as one another. To that extent the hallway and the landing comprised parts of storeys rather than storeys in their own right. They did not fall within art. 3(2)(a) of the 2006 Order. The case therefore turned on whether art. 3(3)(f) brought the hallway and landing within the ambit of art. 3(2)(a) notwithstanding this.

The City Council’s case was that these areas were used in connection with and as an integral part of the HMO and/or were used as living accommodation so that they fell within art. 3(3)(f) of the 2006 Order. The District Judge rejected both of these arguments.

He held that on its proper construction art. 3(3)(f) had two seperate limbs. As means of access neither the hallway nor the landing constituted “living accommodation” for the purposes of the first limb. That was the only limb which enabled a partial storey to be brought within art. 3(2)(a). As to the second limb, the whole storey of which the hallway and landing were a part was not used in connection with and as an integral part of the HMO in question. It principally comprised the living acommodation of the separate lower maisonette .

The judge accepted Digs’ submissions on the basis that they accorded with common sense, did not undermine the purposes of the 2006 Order, did not lead to the 2006 Order being internally inconsistent and did not lead to absurd results. He also accepted that the 2006 Order had to be clear before criminal sanctions could flow from it. It was not clear so Digs obtained the benefit of any ambiguity.

Following the District Judge’s ruling the City Council formally offered no evidence in respect of the charge. Digs was therefore acquitted.

The judgment means that two-storey maisonettes with private means of access do not generally fall within the HMO licensing regime. This has been an important strand to Bristol City Council’s HMO licencing policy. The District Judge was told that not only had the City Council required such properties within its administrative area to be licensed, but had also successfully prosecuted a number of individuals for failing to have HMO licences in respect of 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 of Francis Taylor Building acted for Digs (Bristol) Limited. They were instructed by Kevin Gibbs of Bond Dickinson LLP.