The answer appears to be when it is only for access!

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

We first reported on this case briefly as a decision of the Bristol Magistrates Court. It has now been appealed by way of case stated and so the High Court has produced a definitive view.

The facts, briefly, were that Digs owns a series of properties in Bristol which are predominantly let to students. This property is a five storey property which is divided into two two storey maisonettes. The fifth storey is the basement which is not used and forms now part of this case. The case actually concerns the upper maisonette which occupies the second and third storeys. This maisonette is reached by way of a lobby shared with the lower maisonette which is on the ground floor. That lobby has two private doors on it. One opens onto the lower maisonette and the other opens onto a private staircase which climbs to the upper maisonette by way of a small mezzanine on the first floor landing.

Accordingly, Bristol’s case was the the upper maisonettes comprised of four storeys. The two actual habitable parts of the maisonette and the mezzanine and ground floor which formed part of the private staircase entrance. Digs of course disagreed and said that the maisonette was only two storeys and the stair and mezzanine were nothing more than an access arrangement. As the upper maisonette is occupied by five students if the property was deemed to comprise four storeys it would be an HMO subject to mandatory licensing. If it was only two storeys it should not be so licensable.

The issue primarily came down to interpretation of part of Article 3(3) of the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006. Parts e and f of that Article help define what might be classed as a storey for the purposes of HMO licensing. They state that storeys should be counted for licensing purposes where they are:

(e) any mezzanine floor not used solely as a means of access between two adjoining floors if –
(i) it is used wholly or mainly as living accommodation;
(ii) it is being used in connection with, and as an integral part of, the HMO; and
(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.

Therefore Bristol’s argument was essentially that the stairwell, being private to the maisonette and its sole means of access were storeys being used either wholly or partly as living accommodation or alternatively as an integral part of the HMO. Additionally the mezzanine was being used in the same manner.

I am not going to drag you through the various discussions of what was intended by the legislation. A couple of key points are sufficient. First, there is no definition in the legislation of storey along with a number of other key phrases. This is a glaring omission, especially given that the DCLG consultation that led to the Order states that it will be important to make clear what is meant by a storey! Second, there is a tension between the principle against doubtful penalisation which states that a penalty should not be applied where the underlying legislation lacks certainty and the public policy objective of protecting tenants. Thirdly, “storey” should be given its ordinary English meaning and not have an artificial meaning imposed on it. Finally, the mandatory definition of licensing which was intended to capture the most serious HMOs would inevitably capture some properties which probably did not really need licensing and would equally not capture some properties which should be licensed.

Therefore the stairs and mezzanine were not storeys in an ordinary English sense. It was telling that Bristol had accepted that if the stairwell was not expressly demised to the upper maisonette they would have not argued at all that the stairs were storeys for this purpose. Additionally, living accommodation does not normally include stairs and lobbies. They are access ways that serve that accommodation but they are not a part of it. There may be circumstances in which a stair or lobby is part of the living accommodation if it is larger and includes a desk or some other useable feature. That was not the case here, despite the fact that the students occasionally left some of their possession in that space.

Looking at the mezzanine, it was clear that it was merely access here and did not form a storey to be counted. It fell to be discounted by the language of article 3(3)(e). In that sense, it was the same as the stairs and it would be perverse if the mezzanine was discounted but the stairs were to be included. Interestingly the Court held that there could be a mezzanine which was more than merely access but which did not pass the higher threshold of being part of the living accommodation. He did not elaborate much on this point bit it seems that a storage cupboard on a mezzanine which would make it more than an access might still fall short of use as living accommodation.

Accordingly, the original reasoning of the magistrates court was right. Appeal dismissed.