BOND HOUSING GROUP (LINCOLN) LTDApplicantCITY OF LINCOLN COUNCILRespondent
Before
Tribunal Judge A M DaviesP MountainDate 5 October 2023Property: 16 RICHMOND ROAD, LINCOLN, LN1 1LQType of application: Appeal against HMO licence conditions: Housing Act 2004, Schedule 5, paragraph 31(1)
DECISION
The HMO licence dated 2 December 2022 issued in respect of 16 Richmond Road, Lincoln is confirmed save for the changes specified at (A) and (B) below(a) (A) The tables at Schedule 2a) and 2b) are varied to read as follows: 2a) Amenity Quantity Number of storeys to HMO 2 Number of rooms providing sleeping accommodation 6 Number of communal living/dining rooms 0 Number of shared kitchens 0 Number of exclusive kitchens (room 4 and room 6) 2 Total number of fixed sinks 7 Total number of cookers 6 Number of shared bathrooms with toilet 0 Number of shared bathrooms without a toilet 0 Number of shared separate toilets 0 Number of exclusive showers/baths 6 Number of exclusive toilets (in shower rooms) 6 Total number of wash hand basins 6 Maximum number of units of accommodation 6 Maximum number of households occupying house 6 Maximum number of persons occupying house including a couple permitted to occupy either room 3 or room 4 but not both rooms at the same time 7 2b) Room identification Size (m2) Manner in which room can be occupied Room 1 Ground floor front 11.28 Single person, to be used as sleeping/living including food storage, preparation and cooking facilities with en-suite facilities Room 2 Ground floor middle 11.32 Single person, to be used as sleeping/living including food storage, preparation and cooking facilities with en-suite facilities Room 3 Ground floor rear 16.07 Single person or a couple, to be used as sleeping/living including food storage, preparation and cooking facilities with en-suite facilities Room 4 First floor front 13.05 (17.16 including kitchen) Single person or a couple, to be used as sleeping/living with exclusive use of adjacent separate kitchen Room 5 First floor middle 14.17 Single person, to be used as sleeping/living including food storage, preparation and cooking facilities with en-suite facilities Room 6 First floor rear 9.61 (13.25 including kitchen) Single person or a couple, to be used as sleeping/living with exclusive use of adjacent separate kitchen Kitchen First floor front 4.11 Kitchen for food storage, preparation and cooking for the exclusive use of unit 4 Kitchen First floor rear 3.64 Kitchen for food storage, preparation and cooking for the exclusive use of unit 6 Laundry/utility room Ground floor 4.82 Communal laundry, with access to garden(b) (B) The Property Specific Conditions are amended as follows:[1]Ground floor kitchen/access to garden Delete existing PSC and add “Re-provision the ground floor kitchen as a communal laundry and utility room, the work to be completed within 18 months of the date of this licence.”[2]Room 2 Delete PSC requiring removal of kitchen from room 2.
REASONS
[1]The Applicant is a respected landlord providing high quality studio accommodation in HMOs and works closely with the City of Lincoln Council to deliver safe housing within the terms of the Housing Act 2004 (the Act).[2]In December 2022 the Respondent issued an HMO licence to the Applicant in respect of 16 Richmond Road subject to measurements and conditions which have been discussed and largely agreed between the parties. The following issue has not been agreed: whether room 2 is suitable for use as self contained living accommodation incorporating bedroom, kitchen area and en-suite shower and toilet.[3]The Respondent takes the view that at 11.32m2 or thereabouts this room is too small for use as a self-contained unit of accommodation, and has prohibited the (current) installation of a kitchen. Instead, the Respondent requires the occupier of room 2 to use a communal kitchen off the ground floor corridor. In respect of this communal kitchen, the parties have agreed that it should no longer be the sole means of access (other than via the front door) to the rear yard. The Applicant has created a new external access. While the communal kitchen still has an outside door, it is no longer the only “back door” in the property.[4]No enforcement action has been taken to date to safeguard the present occupant of room 2 from any perceived hazard arising from the inclusion of full kitchen facilities in his room.[5]The Applicant points out that the room has been – and is being - used successfully as a self-contained unit, and invites the Tribunal to vary the licence so as to enable it to continue this use. The law[6]There are no statutory minimum standards for studio accommodation of the type provided by the Applicant at 16 Richmond Road. The relevant law is set out in the Act as follows: Paragraph 31(1) in Part 3 of Schedule 5 to the Act deals with appeals against a local housing authority’s decision to refuse or to grant an HMO licence. Paragraph 34(2) provides that the appeal is to be by way of a re-hearing (of the application for a licence) and may be determined having regard to matters of which the authority were unaware. Paragraph 34 continues “(3) The tribunal may confirm, reverse or vary the decision the local authority. (4) 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.”[7]Sections 64 and 65 of the Act set out the requirements for suitability of a property for multiple occupation as follows: “Section 64 (3)(a) ..…that the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67; Section 65 (1) The local housing authority cannot be satisfied for the purpose of section 64 (3)(a) that the house is reasonably suitable…...if they consider that it fails to meet prescribed standards for occupation by that number of households or persons……. Section 65 (4) The standards that may be …… prescribed [by regulation] include (a) standards as to the number, type and quality of – ………..(ii) areas for food storage, preparation and cooking………[8]Section 67 of the Act provides: “(1) A licence may include such conditions as the local housing authority consider appropriate for regulating all or any of the following –(a) the management, use and occupation of the house concerned, and(b) its condition and contents.”[9]The regulations made under section 65 are the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions)(England) Regulations 2006 (“the 2006 Regulations”). These set out at paragraph 3 the “prescribed standards” to be applied to shared kitchens where units of accommodation within the HMO do not contain facilities for cooking: “(a) there must be a kitchen, suitably located in relation to the living accommodation, and of such layout and size and equipped with such facilities so as to adequately enable those sharing the facilities to store, prepare and cook food….” The Respondent’s Adopted Standards[10]As required by the Act, the Respondent has drafted and implemented standards (“Adopted Standards”) to be applied to HMOs within its area.[11]Appendix 12 of the Adopted Standards sets out the minimum sizes for rooms and provides that: Where there is a shared kitchen but no shared lounge or dining facilities – the area of a room let for occupation by one person is to be at least 10m2. Where cooking facilities are provided within a room let for occupation by one person - the area of the let room is to be at least 14m2. Where a shared kitchen is to be used by between 1 to 5 people - the area of the kitchen is to be at least 7m2.[12]The Adopted Standards also provide that “Regard will be had to layout of rooms including doorways and location of appliances and other factors contained in the published advice concerning overcrowding standards and the Housing Health and Safety Rating System. Space taken by en-suite shower rooms is not included in the room size assessment.” The floor space requirements of the Adopted Standards are taken into account by the Tribunal since they are designed to avoid risks to the health and safety of occupiers. However such requirements are not mandatory and the Tribunal is required to take a broader approach when considering the suitability of a room as living accommodation, as explained by Martin Rodger QC in Clark v Manchester City Council [2015] UKUT 129 (LC) where he stated at paragraph 53: “In every case the views of the local housing authority will be relevant and merit respect, but once the tribunal has carried out its own inspection and considered all of the characteristics of the Property, including the size and layout of individual rooms and any compensating amenities, it will be in a position to make its own assessment of the suitability of the house for the proposed number of occupiers.” Property inspection[13]The Tribunal inspected the property on 5 October 2023 with representatives of the parties and the Applicant’s property manager who had access to the occupants’ rooms in their absence and with their permission. The property is a two storey period property containing, at present, 6 self contained units of accommodation. Outside to the rear there is a garden area with picnic table and covered bike shelter for use by all the residents. This area is adjacent to a similar area to the rear of the Applicant’s adjacent property. The gardens are connected, and share the use of a row of good-sized lockable sheds which are allocated on a first come first served basis. There is no additional charge for use of a shed.[14]In its current layout, there are no shared facilities in the property other than laundry facilities situated in cupboards off the corridors. Room 6 on the first floor at the rear of the property has no internal kitchen but has the use of a (currently unlockable) kitchen situated immediately outside her door, which at 43.64m2 is smaller than the Respondent’s Adopted Standard for a kitchen shared by up to 5 people (7m2.). There is a similar arrangement whereby the occupier(s) of room 4 have no internal kitchen but enjoy the use of a small kitchen adjacent to their room.[15]The rooms in the property are designed and furnished in such a way as to enable the occupants to make full use of the available space.[16]Room 2 has a single window giving on to the outside passageway leading along the side of the house to the rear yard. As a result the amount of natural light entering the room is somewhat limited, and it seems probable that artificial light is required for most activities. Findings[17]Despite the limited natural light and relatively small floor area of room 2, the Tribunal finds that it is a suitable space for use as self-contained long-term living accommodation, including the kitchen area. There is sufficient storage space and room for a work desk. If additional room is particularly needed, the Tribunal notes that one of the garden sheds (which are in effect small rooms) may be made available.[18]It follows that the occupant of room 2 does not require use of the separate ground floor kitchen. Since all rooms in the house include full kitchen facilities, the better use of this communal kitchen is as a laundry and utility room, particularly as many tenants may have particular difficulty in sharing a kitchen where they wish to comply with strict food preparation rules.[19]Each of the first floor kitchens outside rooms 4 and 6 are to be allocated for the sole use of the occupier of the adjacent room. For the occupier of room 6 in particular, it would be embarrassing and inconvenient to have another resident of the house preparing meals at any time of the day or night immediately outside her door. Tribunal Judge A Davies 5 October 2023