Nottingham City Council v Parr and another

Under sections 64 and 67 of the Housing Act 2004, an HMO licence may restrict occupation to a particular class of person where the restriction makes the house reasonably suitable for the permitted number of occupants. The proposed mode of occupation may affect suitability. Shared communal facilities can compensate for a slightly undersized bedroom where occupants are reasonably expected to live cohesively.

The authority must apply the same objective accommodation standards to every class of occupier. It cannot accept lower standards for students or another group. A full-time student condition may be a rational and sufficiently precise proxy for cohesive occupation. A time limit is irrational where a room suitable for sleeping during part of the year is equally suitable throughout the year.

Nottingham City Council licensed two houses in multiple occupation under Part 2 of the Housing Act 2004. Each contained an attic bedroom with less than eight square metres of floor space above the council's minimum ceiling height. The council prohibited sleeping in those rooms. The owners successfully appealed to the First-tier Tribunal, which treated extensive communal space and cohesive student living as compensating features.

The Upper Tribunal dismissed the council's appeals. The Court of Appeal also dismissed its appeal in [2017] EWCA Civ 188, reported at [2017] PTSR 879, while adding conditions preserving the communal space and limiting all bedrooms to full-time students.

The Supreme Court considered whether sections 64 and 67 permitted conditions limiting the class of occupier, and whether the student and ten-month occupation conditions were irrational or unenforceable.

Appeal otherwise dismissed unanimously; licence conditions varied. Lord Lloyd-Jones delivered the judgment, with which Lady Hale, Lord Wilson, Lord Carnwath and Lady Black agreed.

1. Sections 64 and 67 of the Housing Act 2004 empowered a licensing authority to restrict occupation of an HMO, or part of it, to a particular class of person. The natural meaning of section 67(1)(a) permitted conditions regulating the management, use and occupation of the house. Section 67(2)(a) specifically permitted restrictions or prohibitions concerning the use or occupation of particular parts. “Use” and “occupation” were not a composite expression. Regulation of occupation could govern how or by whom a room was occupied.

2. That construction was consistent with the statutory scheme. Part 2 treated occupants' characteristics and activities as relevant in several contexts. It remained intended to regulate shared student houses, notwithstanding the earlier decision in Barnes v Sheffield City Council (1995) 27 HLR 719. A student condition did not remove such houses from regulation. Their suitability remained subject to rigorous assessment and licensing.

3. The proposed mode of occupation was material to suitability. Where occupants lived cohesively and shared a kitchen, dining area and living room, those facilities benefited everyone and could compensate for a slightly undersized bedroom. The same facilities might provide less compensation where occupants lived independently. This approach applied the same objective standards to all HMOs; it did not authorise lower standards for students or any other class.

4. The conditions had to be considered cumulatively. The Court of Appeal cured deficiencies in the tribunal conditions by requiring the communal space to remain available and all bedrooms to be let only to full-time students. Although students' lifestyles varied, full-time student status was a rational and sufficiently precise proxy for the cohesive living normally expected in a shared student house.

5. The ten-month restriction was irrational and was deleted. A bedroom suitable for sleeping during ten months was suitable throughout the year, and full-time students might require year-round accommodation. The full-time education condition was enforceable. Practical difficulty in evicting a former student did not invalidate it because licence revocation remained available. An unsuccessful attempt to evict might also provide a reasonable excuse under section 72(5).

1. United Kingdom Supreme Court: Varied the licence conditions by deleting the ten-month occupation restriction, but otherwise dismissed the council's appeal unanimously: [2018] UKSC 51.
2. Court of Appeal: Dismissed the council's appeal and added conditions preserving communal living space and requiring all bedrooms to be let only to full-time students: [2017] EWCA Civ 188; [2017] PTSR 879.
3. Upper Tribunal (Lands Chamber): Dismissed both appeals from the First-tier Tribunal and directed that the student-related condition should apply to both properties. No citation is stated in the judgment.
4. First-tier Tribunal: Allowed the owners' appeals against the council's sleeping prohibitions. It found that cohesive occupation and extensive communal space compensated for the attic bedrooms' size. No citations are stated in the judgment.