Property: 63 Canwick Road, Lincoln
Ground: Condition unlawful, unreasonable, disproportionate, unsupported by legislation, and contrary to the public interest
1. Overview
Condition 1 of Schedule 5 requires a complete “redesign and reinstallation” of the first-floor shower room and even proposes removal of one amenity if arbitrary space measurements are not achieved.
This condition is unlawful, disproportionate, and procedurally defective under the Housing Act 2004 and established public-law principles.
If allowed, it would:
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Set a precedent where an unchanged property, under unchanged law, is penalised solely because different council officers hold a different personal view;
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Degrade the house’s sanitary capacity; and
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Work against tenant welfare and public interest.
2. Statutory Limits on Licence Conditions
Sections 64(3)(a) and 67(1)(b) of the Housing Act 2004 restrict conditions to those “necessary or appropriate” for regulating management and ensuring reasonable suitability for occupation.
Requiring removal of lawful amenities or imposing design preferences that are not prescribed in any legislation exceeds those powers.
Authority: R (Peat) v South Hams DC [2008] EWHC 1076 (Admin) – licensing powers cannot compel arbitrary or aesthetic alterations.
3. Long-Standing, Lawful and Previously Licensed Configuration
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The first-floor bathroom has existed in essentially the same configuration for over 25 years.
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It was formally accepted by the Council and included in the 2020 HMO licence.
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No change in national legislation has occurred since 2019–2020 affecting bathroom dimensions or layout.
Hence, the law today is identical to that under which the previous licence was granted.
The Council’s reversal of position is therefore not based on law but on personnel change, violating the principle of legitimate expectation (R v North & East Devon HA ex p Coughlan [2001] QB 213).
4. 2018–2020 Council Acceptance and Building-Control History
As detailed in correspondence to Anna Kahn (2024):
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Building Control inspected the property in 2018 during the loft-conversion phase; no issues were raised regarding the first-floor bathroom.
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Mark Sherwood, then the Council’s HMO officer, inspected the same bathroom several times in 2018 and 2019 and raised no concerns.
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The 2020 licence was issued with this bathroom explicitly recorded on the approved plans.
These inspections were official acts of the Council. The Council cannot now, years later, contradict its own prior approvals on the basis of a new officer’s opinion.
5. Absence of Legislative Authority and Council Non-Response
Despite multiple formal requests—including a comprehensive letter in November 2024 and another in May/June 2025—the Council has never identified any legislation authorising the proposed alteration.
This sustained non-response breaches procedural fairness and confirms that the demand rests solely on subjective judgment.
6. Extracts from 2024 Correspondence Illustrating the Issue
In 2024 the Council stated:
“We do not consider the space and layout of the first-floor shower room to be adequate … A practical solution would be to remove either the shower cubicle or the WC and then reconfigure the room as either a shower room without WC or a toilet with wash hand basin.”
Our response pointed out that:
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The phrase “we do not consider” proves the matter is one of opinion, not legislation;
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Hundreds of users have used the bathroom safely for over 15 years;
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Earlier officers and Building Control approved the layout;
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There are no statutory minimum bathroom space requirements in UK law—only recommendations; and
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Even those recommendations do not mention standing clearance, and the bathroom is usable in comfort.
The implication that the bathroom is unsafe is baseless. Witnesses can confirm it is perfectly functional and safe for all users.
7. Engineer’s Report and Witness Evidence
An independent engineer’s report will be presented if required, confirming that the bathroom:
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Meets safety and ventilation standards;
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Is structurally sound; and
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Completelly safe as per its long historiacal established use.
Multiple long-term occupants and professionals will testify to its safe, lawful, and comfortable use over decades.
8. Oversupply of Facilities and Risk Created by the Condition
The property currently provides three full bathrooms for seven residents, exceeding national HMO amenity guidance.
This redundancy ensures ongoing compliance even if one bathroom requires maintenance.
Removing one amenity would:
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Lower total sanitary capacity;
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Risk non-compliance if another bathroom fails;
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Diminish tenant welfare; and
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Contradict the statutory purpose of maintaining adequate facilities.
The Council’s proposal is therefore counterproductive and contrary to public interest. It reduces amenity rather than improving it, and effectively punishes the licence holder for exceeding, not failing, the standard.
9. Dangerous Precedent and Public-Interest Implications
If this condition proceeds, it will establish a precedent whereby:
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The same property, under identical legislation, can be penalised purely because different officers interpret “recommendations” differently;
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Council discretion replaces objective law; and
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Landlords lose lawful amenities on the basis of changing internal opinions.
Such a precedent would undermine confidence in local-authority consistency and expose every HMO licence to unpredictable reinterpretation.
The Council would, in effect, degrade lawful housing stock and threaten the public interest, since the public benefits from properties with more amenities, not fewer.
10. No Identified Hazard or Improvement Notice
Hazard under the HHSRS (England) Regulations 2005 can NOT be identified for obvious reasons.
11. Building Regulations and Retrospective Enforcement
The Building Regulations 2010 apply only to new or materially altered work.
A 25-year-old lawful installation cannot be compelled to conform to modern “recommendations.”
Retrospective enforcement is barred by s. 35 Building Act 1984 and Lambeth LBC v Secretary of State [1981] 1 WLR 1529.
12. Disproportionality and Property Rights
The requirement infringes Article 1 of Protocol 1 (ECHR), incorporated by the Human Rights Act 1998, by imposing unnecessary cost and degradation without legitimate public benefit.
13 Legal Grounds, Case Law and Their Application
| Ground | Authority / Statute | Explanation and Application to This Case |
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| Ultra vires (use of powers beyond statutory authority) | Housing Act 2004 ss. 64(3)(a) and 67(1)(b) | These sections limit licence conditions to what is necessary or appropriate for regulating the HMO’s management or ensuring that it is reasonably suitable for occupation. They do not authorise councils to demand structural redesigns or aesthetic alterations where no health-and-safety risk exists. → Application: Condition 1 demands that you remove or relocate bathroom fixtures even though no hazard has been identified and the room has functioned safely for 25 years. This exceeds the Council’s statutory remit, making the condition ultra vires. |
| Legitimate expectation and procedural fairness | R v North and East Devon HA ex p Coughlan [2001] QB 213 | When a public body has approved a particular arrangement and the law or facts have not changed, individuals may legitimately expect that the approval will not be arbitrarily withdrawn. → Application: The Council licensed the same bathroom layout in 2020 under identical law. Reversing its position now, without new evidence or legal change, breaches your legitimate expectation and constitutes procedural unfairness. |
| Subjectivity / inconsistency (Wednesbury unreasonableness) | Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223 | A decision is unlawful if it is so unreasonable that no reasonable authority could have made it. → Application: The Council’s stance depends solely on one officer’s personal view of “adequacy,” whereas earlier officers reached the opposite conclusion. Such inconsistency, in the absence of objective evidence or legislative basis, is the essence of Wednesbury unreasonableness. |
| No legislative change since 2019 – 2020 | — (Confirmed by Housing Act 2004, HMO Management Regs 2006 as amended 2018, and Building Regs 2010) | The statutory framework governing HMOs and sanitary facilities has remained unchanged since before 2020. → Application: Because the same legal provisions applied when the bathroom was last approved, any different outcome today can only arise from subjective interpretation, not new law. This confirms that the proposed condition lacks statutory justification. |
| No HHSRS hazard identified | Housing Health and Safety Rating System (England) Regulations 2005, regs 3–6; Housing Act 2004 Part 1 | Local authorities may only require remedial works where a Category 1 or 2 hazard is formally identified. → Application: No HHSRS inspection or hazard notice has been issued for the first-floor bathroom. Without that statutory trigger, the Council has no lawful basis to impose improvement works. |
| Retrospective enforcement barred | Building Act 1984 s. 35; Lambeth LBC v Secretary of State [1981] 1 WLR 1529 | Building-control powers apply prospectively to new or materially altered works, not to long-established installations. → Application: The bathroom was installed more than 15 years ago and accepted by Building Control. Requiring it to meet modern spacing guidance amounts to unlawful retrospective enforcement. |
| Disproportionate interference with property rights | Article 1 of Protocol 1 ECHR; Human Rights Act 1998 s. 6 | Public authorities must not impose measures that disproportionately interfere with peaceful enjoyment of possessions. → Application: The Council’s demand forces unnecessary expense and removes useful amenities without any public-safety gain, breaching the proportionality test under A1P1. |
| Degradation of facilities and public-interest conflict | Housing Act 2004 purpose clauses and Explanatory Notes | The Act’s object is to raise housing standards and protect occupiers’ welfare. → Application: Condition 1 would reduce the number of available amenities and increase risk of non-compliance if another bathroom fails, contradicting the very purpose of the legislation and the public interest. |
| Failure to respond to representations (breach of common-law fairness) | R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 | Fairness requires authorities to consider and respond to relevant representations before taking a decision. → Application: The Council ignored two detailed letters (Nov 2024 and May/Jun 2025) requesting the legal basis for this condition. That omission renders any subsequent decision procedurally unfair and invalid. |
14. Conclusion and Relief Sought
The proposed Condition 1 is ultra vires, subjective, disproportionate, and contrary to public interest.
It relies on no legislative change, contradicts the Council’s own earlier approvals, and—by removing amenities—would degrade a safe, lawful, and long-established facility that has operated without issue for over 25 years.
Accordingly, I request that Condition 1 be removed in its entirety from the final licence.
Should the Council refuse, this matter will be appealed to the First-tier Tribunal (Property Chamber) under s. 64(6) Housing Act 2004, supported by:
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an independent engineer’s report;
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witness statements confirming long-term safe use; and
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copies of prior correspondence and inspection records (2018–2020) evidencing prior official approval.
I attach the document sent to the council in november 2024 to which no response was received. Also there is another similar email sent in connection to this with no response in May/June 2025.
Regards
Andreas