Appeal against HMO Licence Condition Dismissed by Tribunal

OUTCOME: Dismissed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AG/HML/2024/0605 Property : [ADDRESS] [POSTCODE] Appellant : [redacted] : In person Respondent : [redacted] Representative : Mr [COUNSEL] of [NAME] : Appeal against the terms of an HMO licence granted by the Respondent Tribunal members :

Judge Prof R [NAME] and date of hearing : 10 [ADDRESS] [POSTCODE] 3 June 2025 Date of decision : 29 August 2025

DECISION

2 Decision of the tribunal (1) The Tribunal dismisses the appeal. The appeal 1. The Appellant appeals under paragraph 31 of schedule 5 to the Housing Act 2004 (“the 2004 Act”) against the terms on which an HMO licence was granted to him, specifically the condition that occupation be limited to three households and four occupants.

2. Directions were given on 11 December 2024.

3. The statutory provisions referred to may be consulted at: https://www.legislation.gov.uk/ukpga/2004/34/contents.

The hearing Introductory 4. Dr [NAME] represented himself. He was accompanied by Mr [NAME] of the managing agents, who made some contributions to the proceedings. The Respondent was represented by Mr [RESPONDENT], the environmental health officer employed by the Respondent who had been responsible for licensing the property. The property 5. The property is a flat in a purpose built block the freehold of which is owned by the Respondent. The licence 6. A borough wide additional licencing scheme was introduced in Camden in December 2015 for five years, then renewed in 2020 for a further five years.

7. The property was licensed as an HMO on 20 January 2017, with an expiry date of 8 December 2020. It was subsequently varied to run for five years from initial issue, and thus expired on 19 January 2022. There was a schedule of required works associated with this licence.

8. The Appellant applied for a renewed licence on 18 January 2022. A draft licence for one year was issued for representations on 12 June 2024, and a final licence was issued on 22 July 2024, for five years to 21 July 2029. This licence is the subject of the appeal, which is dated 29 August 2024.

3 9. The first licence had allowed for occupation of all four rooms – the original two bedrooms and the two additional bedrooms created from the lounge. The conditions in the new licence allowed for the occupation by four people in three households. One of the original bedrooms was of sufficient size to be occupied by two people (ie in a single household), but only one of the two ex-lounge bedrooms could be occupied, and that on condition that the [NAME] had sole use to the second ex-lounge room. The law 10. Paragraph 31 of schedule 5 to the 2004 Act provides: “(1) The applicant or any relevant person may appeal to the appropriate tribunal against a decision by the local housing authority on an [NAME] for a licence – (a) … (b) to grant the licence. (2) An appeal under sub-paragraph (1)(b) may, in particular, relate to any of the terms of the licence.” 11. We note that the Appellant specified that the appeal was under paragraph 32 of the same schedule, which grants a right to appeal against a decision to vary or revoke a licence. It appeared to the Tribunal that this was an error, and it was agreed that the appropriate provision is paragraph 31.

12. The appeal relates to a condition in an HMO licence.

13. In [NAME] and others v [NAME] [2023] EWCA Civ 733, [2024] KB 154, the Court of Appeal (drawing on the Upper Tribunal decision in [NAME] v [NAME] [2020] UKUT 35 (LC), [2020] 1 WLR 3187), the Court of Appeal said that the task of the Tribunal in determining an appeal under these provisions was to determine whether the decision made by the local authority was wrong: “‘Wrong’ … means in this context that the appellate tribunal disagrees with the original decision despite having accorded it the deference (or “special weight”) appropriate to a decision involving the exercise of judgment by the body tasked by Parliament with the primary responsibility for [NAME] licensing decisions.” The parties’ contentions and determination 14. The Appellant appeals against the condition that occupation be limited to four persons in three households. Both the decision [NAME] of the local authority and the appeal turn on whether the layout of the flat was capable of safely sustaining four bedrooms of an appropriate size.

4 15. It was not contested that the flat had originally had two bedrooms and a living room, as well as a kitchen and bathroom. The Appellant had sub- divided the living room to form two additional bedrooms. It was his evidence that the living room had been measured at 18m 2 before it was divided.

16. The appeal related to the use of the two rooms into which the living room had been divided (designated rooms III and IV during the hearing).

17. One element of this was that the further room, room IV, was an “inner room” within a definition used by the LACORS Housing – Fire Safety guidance. Mr [RESPONDENT] evidence was that the Respondent took account of the LACORS guidance in relation to fire safety matters in [NAME]. The relevant passage (paragraph 12.1), exhibited to and quoted in Mr [NAME] witness statement reads “A room where the only escape route is through another room is termed an ‘inner room’ and poses a risk to its occupier if a fire starts unnoticed in the outer room (sometimes termed an ‘access room’). This arrangement should be avoided wherever possible. However, where unavoidable it may be accepted where the inner room is a kitchen, laundry or utility room, a dressing room, bathroom, WC or shower room.” 18. Dr [NAME] relied on having secured retrospective building control approval for the licensed floor plan. He obtained the building regulations approval on the basis that there was a door between rooms III and IV which was configured so that it was only lockable from the room IV side. He had undertaken to ensure that the door was kept clear by the occupants to allow emergency access by the [NAME] of room IV to room III.

19. He explained that he did so by providing written instructions to that effect, which we established was kept with the other documentation required to be provided in the flat. We asked him how he enforced it, and he said that he regularly inspected the property. By “regularly”, he meant a visit every three or four months. We asked if he had had problems with access, and he said that on one occasion one of the students in occupation of room III had obstructed the door with boxes of possessions, which he had required to be removed.

20. Dr [NAME] initially said that he had had planning permission, but agreed with Mr [NAME] in cross-examination that the permission had been that of the Respondent, in its capacity of freeholder of the property.

21. The licence had appended to it a document headed “calculation tables for maximum permitted number” which sets out the condition relating to room occupation and the number of households. A note on that document explained that room IV was “zero-rated” because it was (in

5 effect) an inner room with access only through the kitchen. The note did not mention the access via room III. Mr [NAME] said in oral evidence that he was aware of the access via room III, and that the fact that room III was also an outer or access room did not impact his decision [NAME].

22. In response to the consultation on the proposed licence (which, as with the final licence, proposed four occupants in three households), Dr [NAME] proposed two alternative layouts, both posited on providing a fire escape route not through the kitchen (or, we think, any other outer or access room). However, both were rejected by the Respondent on the basis that in neither option did the size of rooms III and IV reach the minimum set by the Respondent of 9m2. Mr [RESPONDENT] accepted that the options resolved the inner room issue, but at the expense of being even smaller than the room standard than the current layout.

23. Mr [RESPONDENT] exhibited to his witness statement the Respondent’s policy and approach to minimum room sizes in [NAME], including the basis upon which the room standards were arrived at. He included a table showing the minimum size requirements of the Respondent and four other proximate inner London authorities (Westminster, Islington and Kensington and Chelsea). One, Westminster, required 8m 2. The other two required 9m2 and 9.5m2 for the relevant category (single room where a separate kitchen is provided). The Respondent had introduced a lower size requirement where there was a communal living room of at least 10m2, which was not relevant in this property. Dr [RESPONDENT] confirmed that he was not challenging the Respondent’s room standards. There was no dispute that the relevant standard required 9m2 for each bedroom.

24. There was some dispute as to the correct measurement of rooms III and IV. We had available three sets of measurements. Those made by Mr [APPELLANT] on behalf of the Appellant, those made by Mr [APPELLANT] for the purposes of the current licence, and those made by Mr [NAME] predecessor in relation to the previous licence. In respect of room III, Mr [NAME] and the 2017 measurements were close, at 8.35m 2 and 8.6m2. Mr [NAME] measurement was 8.76m2. In respect of room IV, Mr [NAME] measurement was 8.758m2 and the 2017 measurement was 8.7m2, which are again sufficiently close to be explained by rounding. Mr [NAME] measurement was 7.6m2.

25. It was agreed that in room IV there was what was described as an alcove or return on one wall, which extended the measurements of the room. Mr [NAME] asserted that he had taken into account the alcove. He was unable to explain the discrepancy between his and the other two measurements, but fairly conceded that it might have been possible that he did not, in fact, include the alcove.

26. We think the latter the more likely explanation. But ultimately, none of the measurements brought either room up to the 9m2 standard adopted by the Respondent and not contested by the Appellant.

6 27. Mr [APPELLANT] also noted that the useful space in room IV was further reduced by the fact that it had three doors – one to the kitchen, one to room III, and a third leading onto the balcony. The aperture shadow of these doors meant that that space could only be used for circulation, not for storage or furniture.

28. It was Mr [NAME] evidence that the condition would have been imposed regardless of the inner room issue, on the basis that rooms III and IV failed the relevant bedroom standard alone.

29. The Appellant argued that compensation for the below size nature of rooms III and IV could have been compensated for by giving a single [NAME] in each exclusive use of cupboard space in and next to the meter cupboard in the hallway. Mr [NAME] said that that might have been considered, had there been no inner room issue, but even so, it would not have been likely to have made a difference, given the size issues in room III and IV and the lack of communal space elsewhere in the flat. He also adverted to the importance of not eroding the Respondent’s space standards and enforcing uniformity of standards across [NAME] in the borough.

30. There were disagreements between the parties as to the extent to which the Appellant had completed schedules of work associated with the licenses. These were not relevant to the current appeal, which relates only to the occupation condition.

31. We conclude that the appeal should be dismissed.

32. First, we consider that the Respondent’s approach to the inner room issue was the correct one. We note Dr [NAME] evidence in relation to the building regulations approval, albeit not supported by any document evidence. However, building regulation approval does not determine the proper approach to HMO regulation, and we cannot fault the Respondent for taking full account of the LACORS guidance. We observe that, on Dr [NAME] account, the door between rooms III and IV was on the occasion he referred to blocked as a matter of fact, and may have been so for nearly three or four months.

33. Secondly, even putting aside the inner room issue, the Respondent did not contest the Respondent’s room standards. Even if he had done so, the reasoning behind the standards was clearly explained in the Respondent’s policy materials, and a decision based on it could not be characterised as “wrong” in the [NAME] v Waltham Forest sense except in exceptional circumstances.

34. Thirdly, the Appellant’s attempts to evade the inner room issue by reconfiguring the layout to provide for access to a hall from both rooms

7 III and IV could only further erode the sizes of both rooms. The Respondent was entitled to enforce its room standards.

35. Finally, in the context of this small flat with no communal social areas at all, we agree with the Respondent that it would be right to impose the condition on the basis of the room size standards alone. The Respondent could not be characterised as wrong in rejecting the proposed compensation using the hall cupboards. Rights of appeal 36. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written [NAME] for permission must be made to the First-tier Tribunal at the London regional office.

37. The [NAME] for permission to appeal must arrive at the office within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

38. If the [NAME] is not made within the 28 day time limit, the [NAME] must include a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at these reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

39. The [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates, give the date, the property and the case number; state the grounds of appeal; and state the result the party [NAME] the [NAME] is seeking.

Name: Judge R Percival Date: 29 August 2025