QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SINNATHURAI PARAMAGURU
|- and -
|LONDON BOROUGH OF EALING
Laura Phillips (instructed by LB Ealing) for the Respondent
Hearing date: 13 February 2018
Crown Copyright ©
Mr Justice Supperstone :
The First Question: Did the Magistrates have jurisdiction to state a case?
"The High Court is invited to determine the preliminary issue of whether the Magistrates have jurisdiction to state a case and consider the issue of whether committal to the Crown Court can be considered a final determination, with reference to the cases of:
Gillan v Director of Public Prosecutions  EWHC 380 (Admin)
Streames v Copping  QB 920"
"Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved…"
The Second Question: Are children under 18 "residents" within the meaning of Class C4?
"Were the justices right to rule that children under 18 are included in the meaning of the term residents/persons in the case of property used for a Class C4."
"I was at pains to contend that it was in fact dependent children who were not included within Class C4 use (and not persons under 18). Further, the reference should in fact be to the term 'residents' within Class C4 and not 'persons'."
"Were the Justices right to rule that children under 18 are included in the meaning of the term 'residents' in the case of property used for a Class C4."
Hereafter I will refer to the question posed in the case stated as "the modified question" and state my conclusion with regard to the "modified question" rather than the original one.
The Factual Background
"a. Cease the use of the property as a house in multiple occupation not falling within Class C4 of the Schedule to the Town and Country Planning (Use Classes) Order 1987.
b. Remove the kitchen facilities on the first floor of the property.
c. Remove the rear roof extension OR modify the first floor side extension and rear roof extension to comply with drawing no.07/370/10 (received by Council on 12/06/2009) associated with planning permission Ref: PP/2009/1679.
d. Remove all resultant debris."
"The first requirement of the notice (to cease the use of the property as an HMO) is excessive, because it would prohibit both its present use as a large HMO and its possible use as a small HMO with not more than six residents. The latter would be permitted development. The first requirement has therefore been varied so that it protects the right to use the house as a small HMO. The second requirement (to remove the kitchen facilities on the first floor) is not inconsistent with this variation, because only a large HMO would require more than one kitchen."
Grounds of Appeal
"6.1 The magistrates misdirected themselves in law in finding that, on a proper construction of Class C4 use, dependent children should be treated as qualifying 'residents' in their own right.
6.2 The appellant contends that the magistrates should have applied a purposive rather than literal approach to construing the meaning of this provision. In other words, to interpret the enactment in its context consistently with the inferred objectives of Class C4 use, whilst at the same time taking account of the fundamental rights associated with family life and home."
The Parties' Submissions and Discussion
i) Neither the Order, nor s.254 of the Housing Act 2004 ("HA 2004") (with which a HMO for the purposes of Class C4 must be read consistently) provides any definition of the word "residents" in Class C4. That being so, Mr Webster submits, it would have been open to the Magistrates to find that dependent children are not "residents" for the purposes of Class C4.
ii) Although the limit of six residents defines the scope of Class C4 use, this does not imply that any excess of that number must constitute a breach of planning control.
iii) To construe the word "residents" so that it includes dependent children, let alone children under the age of two years, can give rise to absurd results. Because of this the Magistrates should have asked themselves what was the purpose of Class C4. In this regard, it is contended that the object of Class C4 was to allow changes of use between dwelling houses or single households and HMOs to take place without the need for an application for planning permission. Class C4 was not intended to place limits on the number of dependent children comprised within a single household.
"For the purposes of Class C4 a 'house in multiple occupation' does not include a converted block of flats to which section 257 of the Housing Act 2004 applies but otherwise has the same meaning as in section 254 of the Housing Act 2004."
"254 Meaning of 'house in multiple occupation'
(1) For the purposes of this Act a building or a part of a building is a 'house in multiple occupation' if—
(a) it meets the conditions in sub-section (2) ('the standard test');
(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);
(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 basic amenities.
258 HMOs: persons not forming a single household
(1) This section sets out when persons are to be regarded as not forming a single household for the purposes of section 254.
(2) Persons are to be regarded as not forming a single household unless—
(a) they are all members of the same family, …
(3) For the purposes of sub-section (2)(a) a person is a member of the same family as another person if—
(b) one of them is a relative of the other;
(4) For these purposes—
(b) 'relative' means parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece or cousin;
"264 Calculation of number of persons
(1) The appropriate national authority may prescribe rules with respect to the calculation of numbers of persons for the purposes of—
(a) any provision made by or under this Act which is specified in the rules, or
(b) any order or licence made or granted under this Act of any description which is so specified.
(2) The rules may provide—
(a) for persons under a particular age to be disregarded for the purposes of any such calculation;
(b) for persons under a particular age to be treated as constituting a fraction of a person for the purposes of any such calculation.
(3) The rules may be prescribed by order or regulations."
"2. … HMOs are, or are usually, domestic premises originally designed for occupation by one family, which have been converted for occupation by a number of separate families or individuals. This process, which almost inevitably involves the sharing of bathing or kitchen facilities, and the use of parts of the premises for purposes for which they were not originally designed, raises obvious potential problems in terms not just of the amenity but also of the safety of the premises. In addition, government and Parliament have seen the need to make special provision in respect of HMOs because of the regrettable fact that it is often persons and families most in need of social protection, including families with young children, who find themselves obliged to occupy housing that, in the main, is likely to be much less adequate than purpose-built flats or houses.
3. These problems, and the special attention that they justify to be given to HMOs, have been graphically recognised by this court. In Rogers v Islington LBC  32 HLR 138 at 140 Nourse LJ quoted a passage from the Encyclopaedia of Housing Law and Practice, and then added some comment of his own:
'Since the first controls were introduced it has been recognised that HMOs represent a particular housing problem, and the further powers included in this part of the Act are a recognition that the problem still continues. It is currently estimated that there are about 638,000 HMOs in England and Wales. According to the English House Condition Survey in 1993, four out of ten HMOs were unfit for human habitation. A study for the Campaign for Bedsit Rights by G. Randall estimated that the chances of being killed or injured by fire in an HMO are 28 times higher than for residents of other dwellings.'
The high or very high risks from fire to occupants of HMOs is confirmed by the study entitled 'Fire Risk in HMOs', a summary report to the Department of the Environment, Transport and the Regions prepared by Entec UK Ltd in November 1997. HMOs can also present a number of other risks to the health and safety of those who live in them, such as structural instability, disrepair, damp, inadequate heating, lighting or ventilation and unsatisfactory kitchen, washing and lavatory facilities. It is of the greatest importance to the good of the occupants that houses which ought to be treated as HMOs do not escape the statutory control.'
4. Parliament has long recognised the need to guard against such dangers, by giving to local housing authorities [LHAs] significant powers of control over the activities of those who own and manage HMOs. Such powers were first effectively included in Part IV of the Housing Act 1969, which was consolidated into Part XI of the Housing Act 1985 [the 1985 Act]. …
Statutory control over HMOS
5. The lynch-pin of control over HMOs is the power of an LHA to make a registration scheme that requires HMOs to be registered with the LHA. The scheme will contain 'control provisions' regulating the property (1985 Act, ss.346-347). …"
"We strongly believe that Parliament did not intend to create a situation where you could have a property, for example the property we are dealing with, to have six adults and 40 children and still be within the law. If we were to find that children do not count that situation would be possible."
Mr Webster criticises the Magistrates for suggesting that the space being used by two couples and two single persons would be capable of being used by as many as 40 children which, he contends, would in any case be bound to trigger Part X of HA 1985 which deals with overcrowding.
i) On the preliminary issue, the Magistrates do have jurisdiction to state a case; and
ii) On the modified question, the justices were right to rule that children under 18 are included in the meaning of the term "residents" in the case of property used for a Class C4. Accordingly I answer the question in the affirmative.
Accordingly the appeal is dismissed.