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Houses in Multiple Occupation: when is a storey not a storey?

Bristol City Council v Digs (Bristol) Limited [2014] EWHC 869 (Admin)

When deciding whether an HMO is subject to mandatory licensing under Part 2 Housing Act 2004, EHOs have to grapple with the uncertainties created by the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 and the question of whether the individual HMO satisfies the conditions set out in that Order.

One condition that must be satisfied is contained within Article 3(2)(a), being that:

"the HMO or any part of it comprises three storeys or more"

Article 3(3)(f) goes on to provide that, when calculating whether the HMO or any part of it comprises three storeys or more, one is to take into account:

"any other storey that is used wholly or partly as living accommodation or in connection with, and as an integral part of, the HMO."

The question that arose for decision in Digs was this. Where a five bedroom self-contained flat is laid out over the second and third floors of a building, but the flat itself extends down to the ground floor because the staircases, hallways and landings from the second to first floors, and from the first to ground floor all form part of that flat, is the condition met?

On an appeal by way of case stated, Mr Justice Burnett held that the condition was not met, and the flat was not a licensable HMO. In so holding he rejected arguments that (1) the answer was provided by the true effect of section 254(3) of the Act or (2) that the hallways, stairs, and landings were either (a) used wholly or partly as living accommodation or (b) were used wholly or partly in connection with and as an integral part of the flat.

On the meaning to be given to "storey", the judge held as follows:

"HMOs come in all shapes and sizes even if the classic HMO is a large inner city house sub-divided into bedsits. Whether an HMO comprises three storeys or more for the purposes of article 3(2) is a question of fact which, subject to article 3(3), must be answered by giving the word "storey" its ordinary meaning. Storey is a word that is applied to a building. A storey of a building or house would ordinarily be understood as meaning the whole floor, that is all the space on a given level, within that building. In the context of this legislation it would necessarily have a de minimis qualification."

This decision highlights the continuing difficulties the interpretation of the Order presents to local authorities, first highlighted in London Borough of Islington v Unite Group Plc [2013] EWHC 508 (Admin). Experience has shown that what should be a straightforward working tool for busy EHOs and landlords alike, is anything but. Let the arguments continue.

To read the full judgment, please click: DIGS_(BRISTOL)_LTD judgment

Ranjit Bhose QC appeared for Bristol City Council