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HMO Licensing Appeals and Space Standards

Ryan Kohli acted on behalf of Southwark LBC.

Local authorities increasingly face numerous appeals challenging refusals of HMO licenses or overcrowding notices in which they rely on their lawfully adopted space standards. There is considerable uncertainty over the extent to which deference should be given to those space standards by the First Tier Tribunal when hearing an appeal de novo against the local authority's decision to refuse a license or to serve an overcrowding notice. HMO owners in London are now often deploying the argument that their tenants are satisfied with cramped living conditions because it saves them considerable sums in rent or that they are housing young professionals who do not need the full rigours of space standards which were adopted to protect the vulnerable.

In this recent decision, the FTT specifically confirmed that the type of occupier and their subjective views should be given little weight (see Paragraphs 94 – 98) as the purpose of space standards is to protect the vulnerable who cannot generally afford to live elsewhere. The Tribunal re-affirmed that the local authority is entitled to set minimum standards (Paragraph 96 and 99) and, by implication, upheld the argument that these should ordinarily be applied by the Tribunal on a hearing de novo unless there were significant countervailing factors. The tribunal's attention was drawn to the fact that such an approach is consistent with that taken by other specialist tribunals hearing appeals de novo from primary decision makers who have been entrusted with operating a statutory scheme as set out at Paragraphs 67 – 79.

Although this is a first instance decision, it is only one of a handful of published decisions on the relevance of space standards before the Tribunal. It is clear that the FTT will not apply the standards without taking account of the HMO as a whole and any mitigating factors in terms of extra communal space and/or good management. These are matters which local authorities should be able to demonstrate that they have taken into account when reaching their decision to apply their space standards and to refuse an application or to issue an overcrowding notice.

For advice and representation on these matters please contact the Practice Managers at Cornerstone Barristers.