Bristol City Council v Digs (Bristol) Ltd

Mandatory HMO licensing depends on whether the HMO itself, rather than the building containing it, comprises three or more storeys. “Storey” bears its ordinary meaning: ordinarily, the whole floor or all the space on a given level. Stairs, hallways and landings used solely for access are not themselves storeys. Under article 3(3) of the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006, additional areas count only where the specified conditions are met, including use as living accommodation or qualifying integral use. Because the statutory scheme creates a criminal offence, doubtful language should not be construed to penalise. Its protective purpose does not displace that principle where Parliament has adopted a complex and partly ambiguous licensing threshold.

This was an appeal by way of case stated by Bristol City Council against the dismissal of an information alleging that Digs (Bristol) Ltd had managed an unlicensed HMO contrary to section 72 of the Housing Act 2004. The upper maisonette occupied the second and third floors of a five-floor house. Its private entrance was reached through a ground-floor lobby and over a first-floor landing, with those areas and the stairs included in the demise.

The issue was whether those access areas made the maisonette a four-storey HMO, or whether it remained a two-storey maisonette for the purposes of article 3 of the 2006 Order.

1. The appeal was dismissed. The District Judge had correctly answered both questions in the case stated in the affirmative. On the admissions, the upper maisonette was not an HMO required to be licensed.
2. Part 2 of the Housing Act 2004 applies to HMOs falling within a prescribed description under section 55. Article 3(2) of the 2006 Order requires, among other conditions, that the HMO or any part of it comprise three storeys or more. The focus is the HMO, not the building in which it is situated. The reasoning in London Borough of Islington v Unite Group Plc [2013] EWHC 508 (Admin) was adopted and applied.
3. Whether an HMO comprises three storeys is a question of fact. Subject to article 3(3), “storey” has its ordinary meaning. It ordinarily means the whole floor, or all the space on a given level, within the building. A maisonette does not become four-storey merely because its demise includes stairs, a lobby and a landing serving two floors of living accommodation.
4. Stairs cannot in themselves be storeys. The private lobby and landing were not used as living accommodation. Leaving belongings there was insufficient to change their character. The possibility that such areas might count where they were sufficiently used as living accommodation remained, but that was not established on the evidence.
5. The alternative limb of article 3(3)(f), concerning use in connection with and as an integral part of the HMO, was construed consistently with the corresponding wording in relation to basements, attics and mezzanines. The provision did not extend the licensing scheme to every access area. The approach to mezzanine floors was instructive: a floor used solely as a means of access was excluded.
6. The licensing scheme’s protective purpose and its concern with fire risk were relevant interpretative aids. They did not overcome the principle against penalisation under a doubtful law. Parliament had chosen a complex threshold and had not required licensing of every HMO situated in a building of three or more storeys.
7. The Council’s procedural submission failed. The Council had offered no further evidence after the legal ruling, but the admissions before the District Judge constituted the evidence relied upon. The issue was whether that evidence could support the information, and the dismissal was legally unimpeachable.

• High Court (Administrative Court): On 27 March 2014, Burnett J dismissed Bristol City Council’s appeal by way of case stated from the District Judge’s order of 7 October 2013.