Hastings Borough Council v Turner  UKUT 184 (LC)
30th June 2020
A property which was converted into flats before the Building Regulations 1991 came into force, which otherwise falls within the meaning of an HMO set out in Section 254(1)(e) of the Housing Act 2004, will be an HMO unless those regulations are now complied with. When appealing the issue of an HMO license in the FTT, the burden of proof is on the applicant to establish that the property is now compliant with the Buildings Regulations 1991.
In the 1980s, a five-storey, late-Victorian terraced house was converted into five self-contained flats with no shared amenities (“the Property”). In 2017, pursuant to Section 56 of the Housing Act 2004 (“the 2004 Act”), Hastings BC designated the area in which the Property was located as being subject to additional HMO licensing requirements. Those requirements applied to properties falling within a description that replicated the definition of an HMO set out in Section 254(1)(e) of the 2004 Act:
“a converted block of flats to which s.257 applies.”
Section 257(2) of the 2004 Act reads:
“This section applies to a converted block of flats if-
(a) building work undertaken in connection with the conversion did not comply with the appropriate building standards and still does not comply with them; and
(b) less than two-thirds of the self-contained flats are owner-occupied.
In March 2019, Hastings BC wrote to the four freeholders of the Property informing them that they would need to apply for an HMO license.
One of the freeholders applied online for an HMO license in response to this. In answer to the question “Does the conversion to flats comply with the 1991 Building Regulations (or later)?” he answered “no”. Also, more than one third of the flats in the Property were not owner-occupied.
Hastings BC gave notice to the freeholders that it intended to grant an HMO license. The Respondent objected to this, due to concerns that the grant of the license might adversely impact her mortgage and insurance.
In July 2019 Hastings BC granted the HMO license, and the Respondent appealed that decision to the FTT.
- Whether the FTT had correctly interpreted Section 257 of the 2004 Act; and
- Whether there was sufficient evidence to justify the issuing of an HMO license by Hastings BC.
The FTT decided that the HMO license must be revoked, as the Property did not fall within Section 254(1)(e) of the 2004 Act. This was because:
- Section 257 of the 2004 Act was generally fulfilled save for the issue of whether relevant buildings regulations had been complied with;
- The only evidence of non-compliance with appropriate regulations was the “no” response to a question about the 1991 Building Regulations in the freeholder’s application for an HMO license;
- The appropriate building standards were not the 1991 Building Regulations, but the Building Act 1984, as the conversion took place before the 1991 Building Regulations came into force;
- Hastings BC wrote to the freeholders initially, warning them that they would need to apply for an HMO license (with a reminder that non-compliance with HMO requirements is a criminal offence) without any evidence that the Property’s flat conversion did not comply with the relevant buildings regulations at the time those works took place; and
- Even by the date of the hearing, Hastings BC could provide no evidence in support of the position that the Property “did not comply with the appropriate building standards and still does not comply with them”, nor any evidence that it had even considered whether this was the case.
Decision on appeal
The Upper Tribunal identified that the only point in dispute in respect of the application of Section 257 of the 2004 Act in this case was whether the conversion works that took place in the late 1980s complied with the “appropriate building standards”.
The FTT had referred to the Building Act 1984 as containing the appropriate standard, but this was wrong. The FTT failed to refer to Section 257(3) of the 2004 Act, which makes clear that, where conversion works were completed before 1 June 1992 (the date when the 1991 Building Regulations came into force) the “appropriate building standards” under Section 257(2) of the 2004 Act were those prescribed by the 1991 Building Regulations, as if they had been in force when the conversion works took place, unless those works would have been exempted under the 1991 Building Regulations. By failing to recognise this, the FTT had failed to correctly interpret Section 257 of the 2004 Act.
The question then remained whether Hasting BC had sufficient evidence to issue the HMO license that the conversion works done to the Property were not compliant with the 1991 Building Regulations.
Importantly, the freeholder that applied for the HMO license had specifically confirmed that the 1991 Building Regulations had not been complied with. The Upper Tribunal did not fault Hastings BC for taking the freeholder applicant at his word. When Hasting BC initially wrote to the freeholders informing them that they would need to apply for an HMO, the Upper Tribunal assumed that it did so based upon its own estimate of the age of the property and the date of conversion, and again did not fault this approach.
When the Respondent made her application to the FTT to appeal the grant of the license, it was for her to prove that the property was not an HMO within the definition of Section 257 of the 2004 Act; the FTT had failed to correctly identify which party bore the burden of proof. And the Respondent had not offered any evidence whatsoever that the Property was so compliant.
Given this, it was clear that the Property fell within Section 257 of the 2004 Act, and the issue of the HMO license by Hasting BC was lawful. Had the Respondent wanted to mount an effective appeal of the decision to license the Property, she should have adduced evidence of compliance with the 1991 Building Regulations.
By James Castle