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The definition of a storey for mandatory licensing contained in The Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (Wales) Order 2006 is worthy of a closer look as a couple of relatively recent decisions have explained this order in more detail.
Mandatory licensing applies where the following conditions are met (Article 3(2)) -
(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.
Article 3(3) then says -
The following storeys shall be taken into account when calculating whether the HMO or any part of it comprises three storeys or more -
After which, the order defines various parts of a building -
(a) basements
(b) attics
(c) and
(d) where living accommodation is above or below business premises
(e) mezzanine floors; and
(f) other storeys
A basement shall be taken into account as a storey of the HMO 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.
It is worth pausing here and first answering a fundamental question.
If we assume a two-bedroom maisonette on the ground and the first floor with its ground floor entrance and a self-contained flat in the basement, does that basement flat count as a storey?
Article 3(3)(a) provides a basement storey shall be taken into account if
(i) it is used … as living accommodation or,
(ii) it has been constructed or converted … as living accommodation,
(iii) used in connection with the HMO or,
(iv) it’s the entrance to the HMO.
Going backwards, clearly (iv) doesn’t apply because, in our example, the entrance is on the ground floor, not the basement.
Nor does (iii) because the storey must be used “in connection with the HMO”, which, in our example, as it’s a self-contained flat, is not in connection with our HMO.
However, (i) and (ii) are less clear.
They refer to the basement storey as being taken into account if it’s used as living accommodation or was converted for such use.
The High Court and Magistrates Court have ruled in separate cases that the storey must be part of the HMO and not the building.
It is the HMO that must comprise the three storeys and not the building in which an HMO happens to be found. [para 31, London Borough of Islington v The Unite Group Plc (2013) EWHC 508].
This was further confirmed in Bristol City Council v Digs (Bristol) Ltd 7 October 2013, where the property comprised five storeys.
A maisonette on the ground and first floor, a further maisonette on the second and third floor and a basement (which, although vacant at the time, appears to have been converted for living accommodation).
The maisonette on the second and third floor had an entrance from the ground floor.
The local authority insisted that because of the five occupiers in the second and third-floor maisonette and the entrance on the ground floor, the maisonette was, in essence, four storeys with five occupiers and therefore required a license.
The Magistrates disagreed and said that the entrance was not a “use in connection with, and as an integral part of the HMO” for the definition of storey and therefore ruled the HMO was only two storeys and ignored the two storeys of the hallway.
One of the critical reasons for concluding that an entrance to a maisonette or flat is NOT “an integral part of the HMO” is because Article 3(3)(a)(iv) refers to a basement being counted if it is the main entrance to the HMO. If an entrance was integral, the legislator could have relied upon the previous article (iii), which counts a basement if “it is being used in connection with or as an integral part of …”.
The point about the need for the inclusion of paragraph 3(3)(a)(iv) was particularly telling. Why include that paragraph if means of access such as hallways can be defined as “use in connection with, and as an integral part of the HMO”? For the reasons set out at length in Ms Omsby’s skeleton argument, on its proper construction Article 3(3) does not encompass parts of storeys in its definition of what storeys are to be taken into account, except where such storeys are used wholly or partly as living accommodation. [para 19 Bristol City Council v Digs (Bristol) Ltd]
Another fundamental reason for deciding a storey is only about the HMO and not the building is because of the criminal sanctions related to licensing -
… He would have been entitled to cite Bennion ‘Statutory Interpretation’ (5th edition, 2008) at 271: It is a principle of legal policy that a person should not be penalised except under clear law (in this Code called the principle against doubtful penalisation). The court should “strive to avoid a construction which penalises a person where the legislator’s intention to do is doubtful, or penalises him or her in a way which was not made clear”. [para 28, London Borough of Islington v The Unite Group Plc (2013) EWHC 508].
The principles set out above in Bristol City Council v Digs (Bristol) Ltd. above were further confirmed on appeal to the High Court in Bristol City Council v Digs (Bristol) Ltd [2014] EWHC 869 (Admin). See also a commentary on the NearlyLegal blog here.
Going back to basements, therefore, a basement is only included if it is part of the HMO (e.g. a typical two-storey shared house with an additional basement) AND that basement is used as living accommodation, been converted for such use, is an integral part or is the main entrance.
An empty basement which has never been converted for living purposes is not included.
If there is a separate unit of accommodation in the basement, this is not counted as a storey, even though it may be living accommodation. To count the storey, it must be part of the HMO itself.
An attic is counted if it is part of the HMO 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;
For the same reasons as detailed above, if the attic contains a separate, unconnected self-contained flat, that will not count as part of a storey for 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;
Because there is a perception of (and maybe real) increased risk of fire where flats or maisonettes are above commercial premises (perhaps, for example, restaurants and takeaways), (c) and (d) were inserted to ensure such properties fall under the licensing scheme.
However, the total storeys, including the HMO, must amount to 3 for this to apply. So, where there is a self-contained flat in a four-storey building, the flat being one storey and was above a one storey commercial property, although the commercial premises counted as a storey, this would only amount to 2 storeys in total and so not the three storeys required so would not need a license.
Of further interest is that if the business premises are located in the basement, this does NOT count as a storey. This is because a basement storey has already been defined by Article (3)(3)(a), and that does not contain business premises within it. Nor would business premises count if they were in the attic for the same reason.
If a mezzanine floor is used solely to access two adjoining floors, it does NOT count as a storey. However, a mezzanine floor does count as a storey if -
(i) it is used wholly or mainly as living accommodation; or
(ii) it is being used in connection with, and as an integral part of, the HMO
Sometimes a property can have a small bathroom on a half landing in a shared house. If such exists, this will be counted as an extra storey for the purpose of licensing.
Article 3(3)(f) provides that the following shall be taken into account when calculating a storey about the HMO -
(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.
Importantly, note that for this general sweeping storey to be counted, it must be used as living accommodation or … as part of the HMO (my highlights). This does not refer to other parts of the building which might be used as living accommodation; it is only counted as a storey if it is part of the HMO.