Council loses Court of Appeal battle over bedroom sizes and students

Nottingham City Council has lost its bid in the Court of Appeal to challenge a term of Houses in Multiple Occupation (HMO) licences restricting the occupation of bedrooms to a particular type of occupier.

In Nottingham City Council v Dominic Parr Trevor Parr Associates Ltd [2017] EWCA Civ 188 the local authority had argued that a condition requiring an attic bedroom to be occupied by a full-time student was unlawful.

The Upper Tribunal (Martin Rodger QC, Deputy President) had upheld the First-tier Tribunal’s imposition of the condition.

Nottingham had issued two HMO licences for two properties in the city that prohibited two attic rooms from being used as bedrooms due to their size.

The council’s space standards guidance required bedrooms to have a minimum usable floor area of 8m2 in HMOs. By usable floor area the council only includes floor area with head height of more than 5 foot (approx. 1.53m).

Each of the attic bedrooms had a sloping ceiling which reduced the area regarded by the council as useable living space below 8m2.

The First-tier Tribunals allowed the respondents’ appeals and deleted the relevant conditions. In the licence for one of the properties, the FTT substituted an alternative condition of its own, namely that “the second floor front bedroom may only be used for sleeping accommodation by a person engaged in full-time education and who resides in the dwelling for a maximum period of 10 calendar months over a period of one year”.

No such condition was explicitly imposed in the licence for the second property although in its decision the FTT justified its conclusion by saying that there were “sufficient compensating features in the property to make it suitable for students or similar cohesive occupation for six persons in six households.”

The Deputy President upheld the FTTs’ decisions. Nottingham appealed.

Lord Justice Lewison found that there was “nothing intrinsically inimical to the regime governing HMOs in investigating the general characteristics and activities of an occupier”.

He added: “Since the words of section 67 (2) (a) [of the Housing Act 2004] on their face include the power to impose conditions restricting the ‘use or occupation [of the HMO] by persons occupying it’ and there is no context which would exclude a description of the class of persons entitled to occupy specified parts of the HMO, I would reject the Council's argument under this head. A restriction of occupation to ‘occupation by students’ is in my judgment a restriction on ‘occupation by persons’.”