Woking Borough Council v Johnson

For mandatory licensing of houses in multiple occupation, the qualifying storey calculation is governed by Article 3 of the Licensing of Housing of Multiple Occupation (Prescribed Descriptions) (England) Order 2006. Where living accommodation is situated above business premises, each storey comprising those business premises must be counted, even if the business premises are unconnected with the HMO. The principle that the HMO, rather than the wider building, must comprise three storeys is subject to the specific statutory rules in Article 3(3).

Woking Borough Council appealed by way of case stated against the acquittal of Mrs Johnson by the South East Surrey Justices. She had been charged with managing an unlicensed HMO contrary to section 72 of the Housing Act 2004. The premises comprised a two-storey self-contained flat above a restaurant and were occupied by more than five persons from more than one household. The justices excluded the restaurant from the storey calculation, relying on London Borough of Islington v The Unite Group Plc. The central issue was whether the restaurant counted under Article 3(3)(c) of the 2006 Order.

1. The appeal was allowed. The question posed in the case stated was answered “No”. The matter was not remitted to the magistrates because the council sought determination of the legal principle for future cases.
2. Part 2 of the Housing Act 2004 applies to HMOs falling within a prescribed description. Under Article 3(2) of the 2006 Order, the relevant description requires, among other matters, that the HMO or any part of it comprises three storeys or more, is occupied by five or more persons, and is occupied by persons living in two or more single households.
3. Article 3(3)(c) expressly provides that, where living accommodation is situated in a part of a building above business premises, each storey comprising the business premises is to be counted. That rule applies even where the business premises are not connected with the HMO.
4. London Borough of Islington v The Unite Group Plc [2013] EWHC 508 (Admin) did not justify excluding the restaurant. Its statement that the HMO must comprise the three storeys, rather than the building in which it is found, was subject to the statutory rules in Article 3(3). The case concerned self-contained cluster flats within a larger purpose-built block, whereas the present HMO consisted of the living accommodation forming part of the building above the business premises.
5. Bristol City Council v DIGS (Bristol) Ltd [2014] EWHC 869 Admin confirmed the need to read the earlier decision subject to Article 3(3) and supported counting qualifying business premises. The restaurant therefore counted towards the required three storeys.

• High Court (Administrative Court): The appeal by way of case stated was allowed and the question was answered in the negative.
• South East Surrey Justices, Redhill Magistrates’ Court: On 20 September 2016, the justices acquitted Mrs Johnson of the allegation concerning management of an unlicensed HMO, having excluded the restaurant from the storey calculation.