Bristol City Council v Digs (Bristol) Ltd [2014] EWHC 869 (Admin)

[2014] EWHC 869 (Admin)Case No CO/17738/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue BRISTOL HEARING CENTRE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/03/2014
Before
THE HON MR JUSTICE BURNETT
Between
BRISTOL CITY COUNCILAppellantDIGS (BRISTOL) LIMITEDRespondent
Ranjit Bhose QC (instructed by Bristol City Council) for AppellantSuzanne Ornsby QC and George Mackenzie (instructed by Bond Dickinson LLP) for RespondentHearing Hearing date: 26 February 2014
JudgmentThe Hon Mr Justice Burnett:
[1]This is an appeal by way of case stated from the order of District Judge Zara of 7 October 2013 whereby he dismissed a summons brought by Bristol City Council [“the Council”] against Digs (Bristol) Limited [“Digs”]. The Council alleged that Digs had failed to obtain a licence in respect of a maisonette within 12 John Street, Bristol as required by section 55 of the Housing Act 2004 [“the 2004 Act”] and the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006 (SI 2006 No 371) [“the 2006 Order”]. That is an offence contrary to section 72 of the 2004 Act. The maisonette constituted a “house in multiple occupation” [“HMO”] for the purposes of the statutory scheme. Not all HMOs require a licence. The sole question was whether it fell within the description of HMOs which the statutory scheme requires to be licensed. The basis upon which the Council suggested that a licence was required was that the maisonette or any part of it comprised three storeys or more. The Council’s case was that the maisonette comprised four storeys. Digs’ case was that it comprised only two. The judge accepted the arguments advanced by Digs.[2]The District Judge determined the issue on the basis of evidence which was placed before him by way of admissions. They, along with various plans of 12, John Street, are annexed to the Case. It might be thought extraordinary that there could be doubt about how many storeys a maisonette comprised, but a short description of the property will immediately expose the problem. 12 John Street is a substantial house over five floors. There is a basement which at the material times was not in use and is of no significance for the purposes of the arguments before the District Judge or here. There is a maisonette on the ground and first floors and another on the second and third floors. This case concerns the maisonette on the second and third floors. Access to both maisonettes is through the front door of the house at street level where there is a shared hallway or lobby on the ground floor. The private front door to the lower maisonette is off that hallway. The lower maisonette has an internal staircase to its first floor. The front door to the upper maisonette is also off that shared hallway on the ground floor. Beyond it there is a private hallway from which the stairs go up two floors to the upper maisonette. There is a first floor landing on the way up. The stairs and the relatively small areas on the ground floor and first floor form part of the premises leased to the occupiers of the upper flat.[3]In those circumstances the Council submit that the maisonette comprises four storeys. They accept that it would not do so if the occupiers of the upper maisonette merely had a right of access up the stairs and its front door was on the second floor. The essence of Digs’ response is that the private hall at the bottom of the stairs and the landing on the way up are not whole storeys of 12, John Street and should be ignored for these purposes. The fact that the stairs are part of the demised premises does not turn a two storey maisonette into a four storey maisonette. To describe it as such would be to mislead a potential tenant or purchaser.[4]The District Judge accepted the submissions advanced on behalf of Digs. He poses two questions in the Case:
“1. Was I right to conclude that Part 2 of the Housing Act 2004 did not apply to the property on the grounds that it was not a house in multiple occupation falling within any prescribed definition contained in the 2006 Order? 2. Was I right when calculating whether the property or any part of it comprised three or more storeys for the purposes of Article 3 of the Order, to exclude from the calculation all or any of the following: a. The privately accessed ground floor hallway; b. the stairs to the first floor; c. the first floor landing; d. The stairs from the first floor landing to the second floor?” d. The stairs from the first floor landing to the second floor?”
[5]Statutory control of HMOs has a long history dating back to the Housing Act 1957. The current scheme is found in the 2004 Act and delegated legislation made thereunder. Part 2 introduced a mandatory scheme for licensing by local authorities of qualifying HMOs. The starting point is sections 55 and 61: “55 Licensing of HMOs to which this Part applies(1) This Part provides for HMOs to be licensed by local authorities where – (a) they are HMOs to which this part applies (see subsection (2)), and (b) they are required to be licensed under this part (see section 61(1)).(2) This Part applies to the following HMOs in the case of each local authority – (a) any HMO in the authority’s district which falls within any prescribed description of HMO, and (b) …(3) the appropriate national authority may by order prescribe descriptions of HMOs for the purpose of subsection 2(a). … 61 Requirement for HMOs to be licensed (1) Every HMO to which this Part applies must be licensed under this Part unless – (a) a temporary exemption notice is in force in relation to it under section 62, or (b) an interim or final management order is in force in relation to it under Chapter 1 of Part 4 (2) A licence under this Part is a licence authorising occupation of the house concerned by not more than the maximum number of households or persons specified in the licence.” (a) they are HMOs to which this part applies (see subsection (2)), and (b) they are required to be licensed under this part (see section 61(1)). (a) any HMO in the authority’s district which falls within any prescribed description of HMO, and (b) … (a) a temporary exemption notice is in force in relation to it under section 62, or (b) an interim or final management order is in force in relation to it under Chapter 1 of Part 4[6]Section 72 makes it an offence, subject to a reasonable excuse defence, for a person to have control of or manage an unlicensed HMO which is required to be licensed. Section 254 sets out the different buildings or parts of buildings which fall within the definition of an HMO. It is agreed that the upper maisonette is an HMO as defined by section 254. It is necessary to set out some of its provisions to understand one of the submissions advanced by Mr Bhose QC on behalf of the Council. “254 meaning of “house in multiple occupation”(1) For the purpose of this Act a building or part of a building is a “house in multiple occupation” if – (a) it meets the conditions in subsection (2) (“the standard test”); (b) it meets the conditions in subsection (3) (the “self-contained flat test”); (c) it meets the conditions in subsection (4) (the “converted building test”); (d) an HMO declaration is in force in respect of it under section 255; or (e) it is a converted block of flats to which section 257 applies.(2) A building or a part of a building meets the standard test if – (a) it consists of one or more units of living accommodation not consisting of a self-contained flat or flats; (b) the living accommodation is occupied by persons who do not form a single household (see section 258); (c) the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259); (d) their occupation of the living accommodation constitutes the only use of that accommodation; (e) rents are payable or other consideration is to be provided in respect of at least one of those persons’ occupation of the living accommodation; and (f) two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more of the basic amenities.(3) A part of a building meets the self-contained flat test if – (a) it consists of a self-contained flat; and (b) paragraphs (b) to (f) of subsection (2) apply (reading the references to the living accommodation concerned as references to the flat). (8) In this section … “self-contained flat” means a separate set of premises (whether or not on the same floor) – (a) which forms part of a building; (b) either the whole or the material part of which lies above or below some other part of the building; and (c) in which all three basic amenities are available for the exclusive use of the occupants.” Those basic amenities are defined as a toilet, personal washing facilities and cooking facilities.[7]The upper maisonette falls within the definition of a “self-contained flat” found in subsections 1(b), 2 (b) to (f), (3) and (8).[8]The 2006 Order was made pursuant to the powers conferred by section 55(3) of the 2004 Act. Article 3 of the 2006 Order contains the description of prescribed HMOs for licensing purposes. “3. –(1) An HMO is of a prescribed description for the purposes of section 55(2)(a) of the Act where it satisfies the conditions described in paragraph (2).(2) The conditions referred to in paragraph (1) are that – (a) the HMO or any part of it comprises three storeys or more; (b) it is occupied by five or more persons; and (c) it is occupied by persons living in two or more single households.(3) the following storeys shall be taken into account when calculating whether the HMO or any part of it comprises three storeys or more – (a) any basement if – (i) it is used wholly or partly as living accommodation; (ii) it has been constructed, converted or adapted for use wholly or partly as living accommodation; (iii) it is being used in connection with, and as an integral part of, the HMO; or (iv) It is the only or principal entry into the HMO from the street. (b) any attic if – (i) it is used wholly or partly as living accommodation; (ii) it has been constructed, converted or adapted for use wholly or partly as living accommodation; or (iii) it is being used in connection with, and as an integral part of, the HMO; (c) where the living accommodation is situated in a part of a building above business premises, each storey comprising the business premises; (d) where the living accommodation is situated in a part of a building below business premises, each storey comprising the business premises; (e) any mezzanine floor not used solely as a means of access between two adjoining floors if – (i) it is used wholly or mainly as living accommodation; (ii) it is being used in connection with, and as an integral part of, the HMO; and (f) any other storey that is used wholly or partly as living accommodation or in connection with, and as an integral part of, the HMO.” (2) The conditions referred to in paragraph (1) are that – (a) the HMO or any part of it comprises three storeys or more; (b) it is occupied by five or more persons; and (c) it is occupied by persons living in two or more single households. (3) the following storeys shall be taken into account when calculating whether the HMO or any part of it comprises three storeys or more – (a) any basement if – (i) it is used wholly or partly as living accommodation; (ii) it has been constructed, converted or adapted for use wholly or partly as living accommodation; (iii) it is being used in connection with, and as an integral part of, the HMO; or (iv) It is the only or principal entry into the HMO from the street. (b) any attic if – (i) it is used wholly or partly as living accommodation; (ii) it has been constructed, converted or adapted for use wholly or partly as living accommodation; or (iii) it is being used in connection with, and as an integral part of, the HMO; (c) where the living accommodation is situated in a part of a building above business premises, each storey comprising the business premises; (d) where the living accommodation is situated in a part of a building below business premises, each storey comprising the business premises; (e) any mezzanine floor not used solely as a means of access between two adjoining floors if – (i) it is used wholly or mainly as living accommodation; (ii) it is being used in connection with, and as an integral part of, the HMO; and (f) any other storey that is used wholly or partly as living accommodation or in connection with, and as an integral part of, the HMO.” (c) it is occupied by persons living in two or more single households. (i) it is used wholly or partly as living accommodation; (ii) it has been constructed, converted or adapted for use wholly or partly as living accommodation; (iii) it is being used in connection with, and as an integral part of, the HMO; or (iv) It is the only or principal entry into the HMO from the street. (i) it is used wholly or partly as living accommodation; (ii) it has been constructed, converted or adapted for use wholly or partly as living accommodation; or (iii) it is being used in connection with, and as an integral part of, the HMO; (c) where the living accommodation is situated in a part of a building above business premises, each storey comprising the business premises; (d) where the living accommodation is situated in a part of a building below business premises, each storey comprising the business premises; (e) any mezzanine floor not used solely as a means of access between two adjoining floors if – (i) it is used wholly or mainly as living accommodation; (ii) it is being used in connection with, and as an integral part of, the HMO; and (f) any other storey that is used wholly or partly as living accommodation or in connection with, and as an integral part of, the HMO.”[9]The upper maisonette is occupied by five or more persons living in two or more single households. It is let as student accommodation. It was in those circumstances that the sole question became whether it comprised three storeys or more.[10]The Explanatory Memorandum to the 2006 Order indicated that the Government believed that licensing should be a targeted measure used only to improve standards. Paragraphs 7.6 and 7.8 note:
“7.6 In making this Order mandatory licensing will only apply to the highest risk HMOs which have been identified as those of three storeys or more and occupied by five or more persons (who together form two or more households). The threshold has been set at this level because the risks of fire and escaping from fire are greatest in buildings of three or more storeys. In 1997 the Entec (consultants) report ‘Fire Risk in HMOs’ concluded, “The number of occupants influences the risk. Accordingly it is valid to distinguish between HMOs by reference to the level of occupation.” 7.8 For the purposes of mandatory licensing, any storey, including basements, attics and mezzanine floors that is used wholly or partly or in connection with living accommodation will count towards the calculation of number of storeys. Commercial premises above or below living accommodation, except where they are located in the basement, will also count towards the calculation of storeys. This will include commercial premises that are not used in connection with or as an integral part of the living accommodation such as offices, shops, restaurants and pubs.”
[11]The final Regulatory Impact Assessment [“RIA”] published with the Explanatory Memorandum noted in paragraph 15 that “the most common problems associated with multiple occupancy relate to poor fire safety standards, overcrowding, inadequate facilities and poor and unscrupulous management.” Paragraph 16 identified increased risk of death in HMOs converted into bedsits, with the highest risk within that group associated with bedsit HMOs comprising three storeys or more. The rationale for Government intervention was summarised between paragraphs 26 and 30, and importantly “26. … they are often in poor condition and represent a much higher risk to the safety and welfare of the occupants. Poor management and the presence of unscrupulous landlords can also increase the likelihood of health and safety risks developing for tenants, even when the HMO is in an acceptable state of repair. Many HMOs also house some of the most vulnerable members of society who most need protection from poor physical conditions.” The RIA went on to note that under the 1985 Housing Act regulation was not uniform, and stated that the proposals would standardise enforcement and management and “ … ensure that those HMOs which are likely to present the most significant heath and safety risks come to the attention of the local authority, placing a more direct obligation on landlords to provide acceptable standards.”[12]Some additional interpretative aid comes from the consultation document published in November 2004 by the Office of Deputy Prime Minister entitled "Licensing in the Private Rented Sector" as part of its earlier RIA of Part 2 of the then Housing Bill. They were referred to in London Borough of Islington v Unite Group Plc [2013] EWHC 508 (Admin) by Blake J, which is the only decision of this court concerning the 2006 Order. Paragraph 8 of the consultation document reads:
“We intend to use secondary legislation to apply mandatory licensing to HMOs with 3 or more storeys and 5 or more residents who constitute more than one household (other than where the building comprises self contained blocksor certain exempted categories). We are targeting these properties because: • Physical conditions in some of these HMOs are very poor. • There is a significantly increased risk of dying or being injured in a fire in such properties. The fatality rate in HMOs of three or more storeys is around four times higher than that for one or two storey HMOs • A range of health, safety and general welfare problems for residents can arise where structural conditions are unsuitable for the number of persons accommodated, or where conversion has been poorly undertaken. • There are often problems of management in such HMOs, especially where facilities are shared. • Tenants in these HMOs are often vulnerable and may not have access to other housing options.” • Physical conditions in some of these HMOs are very poor. • There is a significantly increased risk of dying or being injured in a fire in such properties. The fatality rate in HMOs of three or more storeys is around four times higher than that for one or two storey HMOs • A range of health, safety and general welfare problems for residents can arise where structural conditions are unsuitable for the number of persons accommodated, or where conversion has been poorly undertaken. • There are often problems of management in such HMOs, especially where facilities are shared. • Tenants in these HMOs are often vulnerable and may not have access to other housing options.”
[13]The Entec report, already referred to in the quotation from the Explanatory Memorandum, was prayed in aid in the consultation document which identified the increased risks which were identified in the final RIA:
“These HMOs have been chosen on the basis of risk. Research indicates that certain types of HMOs present significantly greater health and safety risks to tenants than comparable single occupancy dwellings. Risk assessment carried out by ENTEC for the Department of the Environment, Transport and the Regions on fire safety in HMOs concluded that in all houses converted into bedsits, the annual risk of death per person is 1 in 50,000 (six times higher than in comparable single occupancy houses). In the case of bedsit houses comprising three or more storeys the risk is 1 in 18,600 (sixteen times higher). Nevertheless we believe that the risks to tenants in the larger HMOs remain significantly higher than in other properties. We therefore propose to apply licensing to those houses which were also found to pose the highest risk based on the ENTEC assessment. We have decided that the threshold should be set at those HMOs with three or more storeys and 5 or more persons.”
[14]Part 3 of the document explained how the Government proposed to define a storey for these purposes:
“Consultation on Proposals for Secondary Legislation STOREYS 4. We will need to make it clear what we mean by three or more storeys. We believe that in calculating the number of storeys, regard should be given to attic or basement accommodation used, or capable of being used, for residential purposes. In calculating the number of storeys regard should also be given to the internal layout of the property within the building, so for example, if one of the units is a maisonette on two floors, each of those floors will be included separately in the calculation of the number of storeys. Any part of a building (including any addition, extension or annex) which is below 3 storeys will be regarded as part of that building for licensing purposes (if it has been built or converted for residential use). We are minded to specify that mezzanine floors will count towards the three storeys. However, we recognise that in some cases these floors will be little more than architectural features and not what would perhaps normally be recognised as a storey. Our aim is to include types of property that represent the highest risk, but we do not want to overly complicate the provision as to what defines a storey. We would welcome any thoughts you have on this in your answer to the question below. Question 4: how should three storeys be defined in order to include high risk HMOs, but not to extend the definition unnecessarily widely? 5. It is also intended that any part of a building not used for residential purposes, such as commercial premises on the ground floor of a building, will form part of the HMO for determining the number of storeys, but shall be excluded for all other purposes. This is because the height of the building is a relevant factor in determining the risk to occupants, for example a fire.”
STOREYS Question 4: how should three storeys be defined in order to include high risk HMOs, but not to extend the definition unnecessarily widely?

STOREYS

[15]It is inevitable that a scheme designed to target what are described as “high risk HMOs” will sweep up many well managed properties where none of the perceived hazards exist, and also leave out of the licensing scheme many which are poorly managed and hazardous. 12, John Street and Digs find themselves the unwitting vehicle by which the Council seeks to test the reach of the legislative scheme so far as it relates to the requirement to be licensed.[16]The word ‘storey’ is not defined in the 2006 Order. Nor, as it happens, are the words “attic”, “basement” or “mezzanine”. There is a definition of “business premises” which is not material for the purposes of the present appeal because no part of 12, John Street is used as business premises. In London Borough of Islington v Unite Group Plc the issue was different. The case concerned a purpose built five storey block of flats with a self-contained flat on each of the upper four floors (which was an individual HMO) and business premises on the ground floor. The council argued that all the flats should be individually licensed, relying upon article 3(3)(f). They were unsuccessful in that argument. Blake J concluded:
“30. Article 3(3) does not substitute for art 3(2) and deprive it of its natural meaning, but sets out special rules for the limited purpose of bringing business premises and certain uses associated with the HMO into the equation whereas they would otherwise be excluded. 31. It is the HMO that must comprise the three storeys and not the building in which the HMO happens to be found.”
[17]The conclusion in paragraph 31 is subject to the inclusion of business premises and includes storeys and part storeys that are brought into account by virtue of Article 3(3), that is basements, attics, mezzanines or others used as living accommodation etc. The key to unlocking the statutory meaning identified by Blake J was that in all respects other than business premises the search was for storeys comprised within the HMO itself, rather than the building in which it was located. In that case each flat had one storey. The business premises on the ground floor counted as another storey under Article 3(3)(c). The total was two in respect of each of the HMOs. None fell to be licensed. The contrary argument advanced by Islington Council, namely that any other storey within the building used wholly or partly as living accommodation counted as a storey, was rejected. That conclusion is not challenged by Mr Bhose.[18]Mr Bhose prays in aid the underlying statutory purpose in licensing HMOs. He submits that includes enhancing safety for occupants of types of housing which have been recognised to present increased risk in the various ways identified in the pre-legislative documents, the Explanatory Memorandum and the RIA. The purpose is also to regulate a sector which historically has been subject to poor management and exploitation of tenants by the provision of sub-standard housing conditions. He relies upon the aids to construction to which I have referred to demonstrate that fire risk was a particular target of the legislative regime, in which the height of the building (i.e. the number of storeys it comprises) was an important factor.[19]He submits that the question of how many storeys the upper maisonette comprises is answered without recourse to the detail of the 2006 Order at all, but is answered by the terms of section 254(8) of the 2004 Act, by asking how many floors it has. The upper maisonette is a self-contained flat comprising the two floors where the tenants live and the two floors of stairs and landings. He submits it is therefore a self-contained flat on four floors. For the purposes of article 3(2) of the 2006 Order it follows, he submits, that it comprises three or more storeys. Because if it is a self-contained flat on four floors it must also comprise three or more storeys.[20]In the alternative, Mr Bhose submits that the two floors of stairs and landings are caught by article 3(3)(f) of the 2006 Order. Either they are used wholly or partly as living accommodation, or wholly or partly in connection with and as an integral part of the upper maisonette.[21]Miss Ornsby QC submits that the 2006 Order was designed to bring into the licensing regime HMOs with living accommodation stretching over three or more storeys, or associated with business premises. It would have been a simple matter for the 2006 Order to specify that any HMO in a building of three storeys or more should be licensed; but it did not do that. The focus of the 2006 Order is the HMO itself, rather then the building and so the sole question is whether the demised staircase with its lobby and landing can properly be regarded as storeys. She submits that the 2006 Order is concerned with storeys as a whole, and not part storeys, save in so far as they are caught by article 3(3). The ordinary meaning of “storey” encompasses the whole of a floor or level of a building, that is part of a building comprising all of the rooms that are on the same level as one another. The upper maisonette is on two storeys with private access by way of stairs. To describe it as a four storey maisonette would be an abuse of language and, in the hands of an estate agent, a misdescription.[22]Miss Ornsby submits that the Council’s reliance on article 3(3)(f) is misplaced. The lobby on the ground floor and landing on the first floor are not used wholly or in part as living accommodation. She accepts that were they to be so used, then despite comprising only part of a storey, they would fall into account. She submits that those areas are not used in connection with, and as an integral part of the maisonette to bring them within the second limb of article 3(3)(f). The words ‘wholly or partly” do not qualify that part of the article. The reality is that the stairs (including the hallway and landing) are simply means of access. In respect of mezzanines such use is expressly excluded.[23]Miss Ornsby developed a subsidiary argument raised in a respondent’s notice. Once the District Judge had determined the legal issue, the Council offered no evidence. It was that which led to the information being dismissed. She submits that the decision to dismiss the information was unimpeachable in law because the Council chose to offer no evidence (whatever the merits of the underlying ruling) so that this appeal cannot succeed. The Council’s remedy was judicial review, not case stated. The submission misunderstands what occurred before the District Judge. It is true that after the ruling he records the Council as offering no evidence. However, that is to be read as offering no further evidence. The case has proceeded on the admissions which were adduced in evidence before the District Judge. That was the totality of the evidence relied upon by the Council. The issue before the District Judge was whether that evidence, having been adduced, was capable of supporting the information.[24]The underlying purpose of the licensing regime is not in doubt, and is as Mr Bhose described by drawing on permissible aids to construction. However, in seeking to legislate in a way which was designed to catch the most ‘at risk’ premises those aids show that the Government also desired to avoid over regulation. The attempt to cover all bases in article 3 of the 2006 Order and the aim of making clear what was meant by three storeys or more (see paragraph 14 above) has been only partially successful. However, the 2006 Order does not bring into the licensing regime all HMOs in buildings with three or more storeys, even when all the storeys are filled with HMOs, as London Borough of Islington v Unite Group Plc shows. Equally, the terms of article 3 when set against the infinite variety of circumstances in which HMOs might be carved out of buildings may well lead to anomalies.[25]This is a penal provision which is subject to the ordinary canon of statutory interpretation described in section 271 of the sixth edition of Bennion on Statutory Interpretation as the “principle against penalisation under a doubtful law”. “It is a principle of legal policy that a person should not be penalised except under clear law… the court when considering … which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which penalises a person where the legislators intention to do so is doubtful, or penalises him or her in a way which was not made clear. In some cases however the court may find that the intention to impose the detriment was so strong as to require the doubt to be overridden.”[26]A factor which pulls in the other direction is that the provisions relating to the licensing of HMOs are designed to protect a section of the public from exploitation and enhance their safety. Whilst that is generally a ground for a purposive approach it does not outweigh the need to avoid criminalising activity in this context in the absence of clear statutory language. That is so especially because Parliament has approved a scheme for licensing which has abjured a simple approach (i.e. all buildings of three storeys or more in which an HMO is situated) and created one which is more complex and in part ambiguous.[27]HMOs come in all shapes and sizes even if the classic HMO is a large inner city house sub-divided into bedsits. Whether an HMO comprises three storeys or more for the purposes of article 3(2) is a question of fact which, subject to article 3(3), must be answered by giving the word “storey” its ordinary meaning. Storey is a word that is applied to a building. A storey of a building or house would ordinarily be understood as meaning the whole floor, that is all the space on a given level, within that building. In the context of this legislation it would necessarily have a de minimis qualification. For example, the lower maisonette of 12, John Street comprises two storeys, despite there being a common hallway on the ground floor, and a small area on each floor demised with the upper maisonette. Stairs between floors cannot in themselves be “storeys”. Mr Bhose’s ingenious attempt to deliver a different meaning by reference to section 254 of the 2004 Act does not alter than analysis.[28]The language of article 3(2)(a), “the HMO or any part of it comprises three storeys or more” covers a common situation where an extension or addition to a house has more storeys than the main house. That is why there is a reference to “part of” an HMO. It is not the same as “the HMO or any part of it is located on three storeys or more”, which is the effect of what the Council argue.[29]The question of how many storeys the upper maisonette comprises applying ordinary use of language delivers a clear answer. It is a two storey maisonette. That essential truth does not change because the stairs (and associated spaces at the bottom and on a turn) form part of the demised premises. The Council accept that if the stairs, internal lobby and turn were not demised, but formed part of the common parts, the argument would not run. In my judgment, unless article 3(3)(f) applies to count the private lobby and landing as additional storeys, the Council’s appeal must fail.[30]The question whether any storey is used wholly or partly as living accommodation is also a question of fact. “Living accommodation” is not defined in the 2006 Order or in the 2004 Act. There is a clue in article 3(3)(c) that it does not include lobbies and landings leading to a self-contained flat because the reference is to “living accommodation ... above business premises” which necessarily must be served by a means of access. The District Judge recorded that one of the admissions on which the case proceeded before him was that the students had, on the day on which the facts were determined, left some of their belongings in the private hallway. There was some suggestion that such action leant weight to an argument that it was being used partly as living accommodation. Mr Bhose, rightly in my view, did not press that argument. He suggested that the fact that these spaces were demised to the occupiers of the upper maisonette was sufficient to engage the licensing provisions, irrespective of what was actually done with them.[31]There may well be circumstances where a landing or hallway is used wholly or partly as living accommodation. The space may be sufficient for use as a small room for all sorts of purposes, and it may be used as such. For example, by placing a sofa and a television there, a desk with computer and chair (perhaps more likely with students) or even a baby’s cot. But the exiguous and transitory nature of leaving a few belongings in a hallway at the bottom of two flights of stairs does not, in my judgment, turn the space into living accommodation.[32]The last question is whether the private ground floor lobby and first floor landing are used in connection with, and as an integral part of the upper maisonette. I have already noted a difference in the approach of the parties to the interpretation of this part of the article. The Council submits that the words “wholly or partly” apply to “in connection with, and as an integral part of, the HMO”; Digs submits that those words only apply to “living accommodation”.[33]Article 3(3)(f) is puzzling in one sense. It provides that any storey of the HMO being used wholly as living accommodation should count as a storey. That does not appear to add anything to the general words of article 3(2), unless article 3(3) is to be read as a complete code for what counts as a storey for the purposes of article 3(2). However, the partial use of a storey as living accommodation does add substantially to the general definition, because it brings into account storeys parts of which are used for other purposes, or for nothing at all. The language of “in connection with, and as an integral part of, the HMO” appears in each of sub-paragraphs (a), (b) and (e) of article 3(3). Subparagraphs (a) and (b) relate to basements and attics. They count as storeys if used wholly or mainly as living accommodation (a different formulation from 3(3)(f)), if they have been constructed, converted etc as living accommodation, whether or not currently so used, or if they are used in connection with and as an integral part of, the HMO. It is not entirely clear what the draftsman had in mind when crafting the last criterion, but examples might include use for heating and hot water systems.[34]I can see no reason why that criterion should bear the different meaning contended for by the Council in sub-paragraphs (a) and (b) (and indeed (e)) as compared with (f). Why should any other storey be brought into account when it is “wholly or partly” used in connection with, and as an integral part of, the HMO when that is not the case with basements, attics and mezzanines? Mr Bhose’s answer is that the risks, particularly from fire, arise substantially if not exclusively from the height of the building. That, however, seeks to extend the licensing provisions in a simple and all-embracing way which the 2006 Order did not attempt to achieve.

(f) is the same as if it were phrased in this way:

“(f) any other storey that is used (i) wholly or partly as living accommodation or (ii) in connection with, and as an integral part of, the HMO.”
The different drafting technique is no more than a reflection that sub-paragraph (f) has only two components and does not need to be broken down in the same way as sub-paragraphs (a), (b) and (e) to achieve clarity.[35]The small areas on the ground floor and first floor in 12, John Street, Bristol demised as part of the upper maisonette are not storeys, and so do not fall within the second part of sub-paragraph (f). If I am wrong about the reach of the second part of sub-paragraph (f), and it applies to parts of storeys, the question is whether the ground floor lobby and landing on the first floor are used in connection with and as an integral part of the maisonette.[36]The approach of article 3(3)(e) to mezzanine floors is, to my mind, instructive in this respect. It is clear that there is no intention to include a mezzanine floor if it is used solely as a means of access between adjoining floors. Mezzanine floors often achieve more than that. In many houses a mezzanine floor has one or more rooms, a bathroom, cloakroom or small bedroom, perhaps. If the result were that the mezzanine floor was used wholly or mainly as living accommodation, it would fall into account. Similarly, if the mezzanine floor was used in connection with and as an integral part of the HMO. However, article 3(3)(e) is structured in a way which would allow a mezzanine floor not to be used solely as a means of access between floors, but nonetheless not to count as a story for the purposes of the legislation. It does not count a mezzanine as a storey which is used as access and also for some other purpose falling short of use wholly or mainly as living accommodation, or use in connection with and as an integral part of the HMO.[37]It would be odd indeed if a mezzanine floor used solely for access were excluded from the calculation of how many storeys the HMO comprised but that a hallway or landing on a staircase used solely for access which did not operate by creating mezzanines was included. That outcome would be capricious. The outcome becomes all the more capricious when it is apparent that the mezzanine might be put to some use over and above access and still not count.[38]On any reading of sub-paragraph (f) the lobby and landing associated with the private staircase from the ground floor to the upper maisonette at 12, John Street do not count as “storeys”.[39]The District Judge was correct in his conclusion that on the evidence before him contained in the admissions, the upper maisonette at 12 John Street, Bristol did not fall within those categories of HMO required to be licensed. The answer to both the questions he posed is “yes”. In those circumstances, the appeal will be dismissed.

Cited in 2 later judgments