London Borough of Islington v The Unite Group Plc [2013] EWHC 508 (Admin)

This is an interesting appeal in relation to the counting of storeys for HMO licensing purposes. It actually repeats an argument dealt with in an appeal in a criminal prosecution of a Mr Williams by Cotswold District Council from way back in 2008 although the result here was different (see “Recount Your Storeys” (2009) 12 JHL 1).

Basically, Unite owns a block of flats in Islington. The ground floor is a shop and the entrance to the block. The next four floors are flats, one flat per floor. The flats themselves are described as ‘cluster flats’. What this means is that they are student accommodation of a type popular in many universities. Each flat consists of four to six individual bedrooms, each with en suite bathroom and its own lockable door. The occupants of the bedrooms then share a communal kitchen and living room. This provides a balance of privacy in terms of bedroom and bathroom with a degree of community in the shared kitchen and living area

It is common ground therefore that each flat is occupied by four to six people, forming multiple households and sharing basic amenities (the kitchen) so each flat is an HMO under the “self-contained flat” test found in s254(3), Housing Act 2004. The dispute arises over whether these flats require licensing under s72 of the Act and relates to some unfortunate wording in the, snappily titled, Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2006.

This order sets out the description of HMOs that are required to be licensed in all parts of England, usually referred to as “mandatory licensing” to distinguish it from the discretionary ability to license enjoyed by individual local authorities. The description prescribed in the order for licensing is an HMO of five or more occupiers which extends over three or more storeys. No problem here you might be thinking. Each flat is a separate HMO and although they might have as many as six occupiers each of them is only one storey. And you would be right except for Article 3(3) of the order which gives a more precise definition of what storeys must be counted. This requires that when counting storeys for the purpose of licensing one must also count, inter alia:

c) where the living accommodation is situated in a part of a building above business premises, each storey comprising the business premises;
…
f) 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 ground floor shop must therefore also be counted because of Article 3(3)(c) making each flat a two storey HMO, still not enough. However, it was the argument of Islington, just as it WS the argument of Cotswold DC in the case I referred to at the start, that the wording of Article 3(3)(f) means that every other storey in the property which is used wholly or partly as living accommodation must also be counted. This would mean that every flat wold have to be considered to be a five storey HMO as you would need to count the storey occupied by the flat itself, the storey occupied by the business premises (under Article 3(3)(c)), and the three other storeys occupied as living accommodation by the other flats.

In the Cotswold case the argument centred around whether the use of the word “or” in the phrase “…living accommodation or in connection with…” was disjunctive making a separation in the Article between storeys “used wholly or partly as living accommodation” and storeys which were “an integral part of, the HMO” or a badly phrased conjunctive use which meant a storey had it be both things to be counted. In this case the argument for Islington was that the phrasing of Article 3(3)(c) clearly intended that storeys outside the confines of the immediate HMO be counted. For Unite the argument made was that the use if the definite article in Article 3(3)(f) in referring to “the HMO” makes clear that the reference is only intended to be to the particular HMO and not the entire building.

I am not going to go through the extended discussion of supplementary aids to construction and guidance on HMOs which the Mr Justice Blake was forced to consider. Poor him!

As I have more than hinted the landlord in the Cotswold case lost and was prosecuted. In this case, which will now be the leading case, Unite won and their argument was preferred to that advanced by Islington. Therefore, the upshot is that when counting storeys in a building for HMO purposes it is not necessary to consider other residential storeys unless they are actually part of the HMO being considered. It is necessary to consider business premises.