First-tier Tribunal Extends HMO Licences Until June 2023

OUTCOME: Allowed in Part

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/00BY/HML/2022/0001 and 0002

Property : 47 and 51, [ADDRESS] [POSTCODE]

Appellant: [redacted]

Respondent : [redacted]

Type of Application : Appeal against imposition of a condition attached to HMO Licences

Tribunal Members : Mr [NAME] Mr [NAME] of Decision : 16 December 2022

Date of Determination: 22 December 2022

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Decision : The Tribunal determines that the limitation of the licences to a period of 12 months is no longer appropriate in the circumstances at the time of the hearing of this application in November 2022 and should be extended to a termination date of 30th June 2023.

Application and background

1. The Applicant is the owner of 2 properties, 47 and 51, [ADDRESS] 15 which are both houses in multiple occupation (HMO) and are now subject to the licensing regime relating to such properties set out in the Housing Act 2004 (The Act).

2. Both properties offer 7 units of accommodation in the form of bedsitting rooms within two large properties within a terrace of similar properties in a cul-de-sac in the Wavertree area of Liverpool, known as “The Dales” in view of the naming of many roads in the locality. They are separated by the property at number 49 which is in separate ownership.

3. It appears to be common ground between the parties that these houses once formed single, substantial, family dwellings and that use of the properties, following conversion, into [NAME] has occurred in the relatively recent past.

4. The dispute between the parties concerns the current planning status of the properties under the Town Planning Act 1947. There has never been an application, in relation to either property, to change their designation from single dwellings to [NAME]. The Applicant is of the view that no such applications are required in view of the established use of the properties for some years.

5. The Local Housing Authority, the Respondent, is of the opinion that proper application is required. Planning permission would not now be granted in view of the designation of the local authority ward within which the properties are situated as one where no further HMO development will be permitted. The authority’s policy is clearly stated. It is however open to the Applicant to seek to confirm the established use of the properties as [NAME]. The authority made a direction under Article 4 of the Town and Country Planning (Permitted Development Order) 1995 on 17th June 2021 in respect of properties in the area of the Greenbank Ward where these properties are situated. This direction removed the right to change the use of a family home to a small scale HMO as permitted development.

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6. This issue has not previously arisen as the Applicant previously held selective licences in respect of each property which were “passported” to HMO licences until they expired on 31st March 2020 Further licences were granted on 19th September 2020 and eventually the current licences were granted on 16th February 2022 for periods of 12 months. Section 68(4) of the Act provides for a HMO licence to end no later than 5 years after it has been granted.

7. There is no specific reference in the Act to the grant of a licence for a period of less than the 5-year period, although that is the length after which a licence must be renewed, other than the right of the applicant for the licence to apply under the provisions of Section 71 and Schedule 5 of the Act to apply to vary the decision of the authority. These provisions provide for appeals to this Tribunal in relation to the grant, refusal, variation, or revocation of licences. Paragraph 31 of the Schedule provides: (1) The applicant or any relevant person may appeal to (the tribunal) against a decision by the local housing authority on an application for a licence- (a) To refuse to grant the licence, or (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.

8 Paragraph 33 provides that any appeal against a decision to grant a licence must be made within 28 days of the notification of the grant to the applicant.

9 The powers of the tribunal are provided in paragraph 34: (2)An appeal- (a) Is to be by way of re-hearing, but (b) May be determined by having regard to matters of which the authority was unaware. The tribunal may confirm, reverse, or vary the decision of the local housing authority. On an appeal under paragraph 31 the tribunal may direct the authority to grant a licence to the applicant for the licence on such terms as the tribunal may direct.

10 With that background as the fulcrum of the Authority’s position in relation to two applications made for an HMO licence, the Respondent has determined that the licences it has granted should be for those 12 month periods and not the five years that would be likely to be granted if the planning issue did not arise.

11 For the Applicant, this presents two difficulties. Firstly, the costs of the licensing process conceivably fall on an annual, rather than quinquennial basis. Secondly Liverpool City Council, through various departments,

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other than Licencing, have constructive knowledge of the use of the properties as [NAME], particularly for use as student accommodation, for a sufficient period of time for use as [NAME] to be established.

Evidence

12. The submissions made in writing to the Tribunal by the Respondent may be summed up fairly succinctly as follows: (1) The decision to remove the permitted development rights to change the planning classification of the properties was a proper one for the Authority to make in the light of issues raised in relation to [NAME] in the “Dales”. (2) There has been no application for a change for these two properties to be designated [NAME] and one should be made, following which the Applicant may seek to confirm the established use of the properties as such. (3) It is not a function of the licensing department to take on the role of the planning department to establish the longstanding basis of the current use of the two premises. (4) That task should be carried out by the planning department in accordance with the process for applications for change of use and for the Applicant to provide sufficient supporting evidence. (5) The Respondent relies upon the decision of the Upper Tribunal in London Borough of Waltham Forest v Khan UKUT/LC/2017/153 as establishing three principles to support its stance: (i) It is entirely appropriate for the Respondent to ask that the Applicant takes the appropriate steps to regularise the planning position in respect of the properties. (ii) It is similarly appropriate to limit the period for which a licence is granted to enable that process to be undertaken, rather than to refuse a licence or grant one for a full period of 5 years. (iii) It is proper to seek that the Applicant takes the relevant planning steps than for the Respondent to grant a full licence and leave the question of planning enforcement in respect of the use of the premises to the planning department.

13. The Applicant takes the view that there is sufficient evidence through his longstanding engagement with various departments of the authority and the evidence he has supplied of his role providing student accommodation at the two properties to satisfy the authority of the established lawful use of the properties, with particular reference to: (1) Council tax exemptions going back to the 1990s as student accommodation, confirmed by the Revenue Services department. (2) Use since 2012 in conjunction with [COMPANY] as 7 bed [NAME] (3) A statement in support from the [NAME] confirming the longstanding use as student accommodation.

14. Thereafter the parties re-iterated these views at the virtual hearing held on

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24th November 2022 following an inspection of the two properties earlier that day by the Tribunal which confirmed them to be 7-bedroomed HMO

Decision

15 The decision that the Tribunal is required to make is a simple one. It is effectively being asked if it should vary the length of the licences granted by the Respondent and leave the Respondent then to decide, through its planning department, whether to seek to take enforcement action against the Applicant for use in breach of the current planning permission for a single dwelling. The Alternative is to uphold the respondent’s view that the onus is upon the Applicant to secure planning compliance and limit the length of the licences to a period of time that will enable that process to be undertaken and concluded.

16 Within documents provided in this case is a statement from a council official, Mr [NAME], setting out in quite extensive terms the observations of the Upper Tribunal in London Borough of Waltham Forest v Khan as to where the onus of seeking compliance should reasonably fall. It is not unreasonable to expect that to be upon the Applicant. Nor is it unreasonable, according to that case, for the respondent to limit the length of a licence only to a period of time that enables this to be done.

17 The Tribunal concurs with those general principles and is comforted in that view by the fact that although the Applicant may well be able to show sufficient established use as [NAME] he does not yet appear to have established that sufficiently to justify either the Respondent or this Tribunal making a decision upon planning law that is within the remit of either. It is a matter for the expertise and judgement of the planning process exercised by its appropriate officers skilled in that field.

18 The Tribunal does, however, accept that the Applicant is experienced in the operation of [NAME] and , from what it saw on the inspection, appears to run these two properties to a reasonable standard.

19 While it would have been ideal to have commenced the planning process whilst these appeals have been pending, it is highly likely that it is unreasonable to expect that process to be concluded before the licences, as they now exist, come to an end. The Tribunal considers that as at December 2022 it is appropriate to vary the licences so that they expire on 30th June 2023 to enable that process to be undertaken and concluded.

Tribunal Judge: [NAME] 16 December 2022