Challenge to Schedule 5 – Condition 1 (First-Floor Bathroom)

1. Overview

Schedule 5 – Condition 1 of the draft licence requires a complete redesign and reinstallation of the first-floor shower room and even proposes removal of an existing amenity if certain arbitrary spacing measurements are not met.

This condition is:

  • Unlawful

  • Irrational

  • Disproportionate

  • Procedurally defective

  • Inconsistent with the Housing Act 2004, national standards, and established public-law principles

It is crucial to emphasise that this bathroom:

  • Has been used in the exact same configuration for more than 20 years, without incident;

  • Has been repeatedly inspected and approved by Building Control and by the Council’s HMO officers in 2018, 2019, and 2020, all without objection;

  • Was expressly included in the 2020 HMO licence;

  • Has been safely and satisfactorily used by hundreds of tenants over decades; and

  • Matches bathroom layouts widely used and licensed in HMOs throughout England, including multiple other licensed properties under the Applicant’s management.

Across all those years, authorities, and licences:

  • No enforcement action has ever been taken;

  • No redesign has ever been requested;

  • No such condition has ever been imposed—

because the layout is standard, safe, accepted, and compliant.

Nothing in the property has changed.
Nothing in the law has changed.
Nothing in national amenity standards has changed.

La only change is the identity of the officer, whose personal, subjective opinion now drives a requirement unsupported by legislation.

Under Coughlan, Hanif, Mohamed and basic fairness principles:

  • A public authority cannot reverse a previously accepted configuration under unchanged law simply because a different employee holds a different subjective view.

  • Subjective judgement is No a legal standard.

  • A licensing condition cannot invent new statutory requirements.

If this condition is not struck out, it would create a dangerous precedent:

  • An unchanged property under unchanged law could be declared “non-compliant” solely due to an individual officer’s preferences.

  • The property’s sanitary provision would be reduced, despite exceeding statutory requirements for a 7-bed HMO (which needs only two bathrooms).

  • Longstanding, functional amenities could be lost, harming tenant welfare for no lawful purpose.

  • Councils would effectively gain the ability to make law by opinion, in place of statutory standards.

2. Statutory Amenity Standards – Condition Is Legally Unenforceable

2.1 Statutory Minimum for Seven Occupants

Under:

  • LACORS Housing Standards (2010)

  • HMO Management Regulations 2006 (as amended)

  • Mandatory Conditions for HMOs (England) Regulations 2018

the minimum standard is clear:

For 6–10 persons → TWO bathrooms/shower rooms required.

There is no legal requirement anywhere in England for three bathrooms in a seven-person HMO.

2.2 The Property Exceeds the Statutory Minimum

63 Canwick Road contains:

  • Three fully functioning bathrooms

  • Each with WC, basin and shower

  • All lawful, long-established, and previously approved

Even if the first-floor bathroom did No exist, the property would:

  • Still meet and exceed statutory requirements.

Therefore, the proposed redesign condition serves no statutory purpose y cannot be enforced.

2.3 No Offence Can Arise Under the Housing Act 2004

Under ss. 64, 67 y 72 of the Housing Act 2004, enforcement is only available where:

  • The HMO fails prescribed national standards; or

  • A licence condition is necessary to ensure suitability.

Because:

  • The property already exceeds required bathroom provision; and

  • It remains fully compliant irrespective of any redesign,

non-compliance with this redesign condition cannot create an offence under the Housing Act.

A condition cannot create criminal liability where the underlying statutory requirement is already fully satisfied.

2.4 Ultra Vires – Condition Exceeds Council’s Legal Powers

Sections 64(3)(a) y 67(1)(b) Housing Act 2004 require that licence conditions be:

  • Necessary, or

  • Appropriate

to ensure suitability.

Here, the HMO is already suitable without the redesign. Therefore, the condition is:

  • Not necessary

  • Not appropriate

  • Not authorised by statute

  • Ultra vires

This falls squarely within R (Peat) v South Hams DC [2008] EWHC 1076 (Admin), where the High Court held that councils cannot impose conditions requiring structural alterations when no statutory need exists.

2.5 Wednesbury Unreasonableness

Under Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223, a decision is unlawful if it is:

  • Irrational;

  • Based on irrelevant considerations; or

  • Taken without regard to relevant statutory factors.

Requiring redesign of a fully functioning bathroom when:

  • The HMO already exceeds statutory amenity minima;

  • The bathroom has operated safely for decades; and

  • The redesign would have no effect on legal compliance,

is legally irrational and should be struck down.

3. Statutory Limits on Licence Conditions

Sections 64(3)(a) y 67(1)(b) of the Housing Act 2004 restrict licence conditions to those:

  • “necessary or appropriate” for
    (a) regulating the management of the HMO; or
    (b) ensuring the property is reasonably suitable for occupation.

A requirement to:

  • Redesign,

  • Elimina la, or

  • Reconfigure long-established, lawful amenities —
    to satisfy design preferences not found in any legislation — exceeds those powers.

Authority: R (Peat) v South Hams DC – licensing powers cannot compel arbitrary, aesthetic, or subjective alterations.

4. Long-Standing, Lawful and Previously Licensed Configuration

  • The first-floor bathroom has existed in essentially the same configuration for over 20–25 years.

  • The Council accepted and licensed this configuration in 2020.

  • No change in national legislation or standards regarding sanitary layout has occurred since 2019–2020.

Therefore:

  • The legal framework now is identical to that under which the bathroom was previously approved.

A reversal of position without legal change violates the principle of legitimate expectation.

Authority: R v North & East Devon HA ex p Coughlan [2001] QB 213.

5. 2018–2020 Inspection & Building-Control History

Council and Building Control records confirm:

  • 2018 – Building Control inspected during loft conversion; no issue raised regarding the first-floor bathroom.

  • 2018–2019 – HMO officer Mark Sherwood inspected the bathroom several times; no concerns raised.

  • 2020 – Bathroom included in the approved HMO licence plans with no objections.

These inspections are official acts of the Council.

The Council cannot now contradict its own prior approvals solely on the basis of a new officer’s opinion.

6. Council’s Own Statements – Opinion, Not Law

In 2024 the Council wrote:

“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…”

Our response correctly identified that:

  • “We do not consider” = an opinion, not law;

  • Hundreds of users have safely used this bathroom for 15+ years;

  • Earlier officers and Building Control formally accepted the layout;

  • There are no statutory minimum space requirements in UK law;

  • Even guidance does No refer to “standing clearance” rules;

  • The bathroom is fully usable and comfortable.

There is no hazard, no evidence, no legislative breach.

7. Engineer’s Report and Witness Evidence

If required, the Applicant will provide:

  • Una independent engineer’s report confirming that the bathroom is:

    • Safe

    • Properly ventilated

    • Structurally sound

    • Fully compliant; and

  • Multiple witnesses (tenants and professionals) confirming decades of safe and comfortable use.

8. Contradictions and Irrationalities in Schedule 5 – Condition 1

8.1 Internal Contradictions

Schedule 5 – Condition 1 is internally contradictory and incapable of sensible or lawful application.

  1. It simultaneously requires the licence holder to “redesign and reinstall” the first-floor bathroom and insists that, if the macerator toilet is retained, it must be “kept clear of blockages at all times”.

    • Elsewhere, the Council states it is “preferable” for one amenity to be removed — meaning the toilet may be removed altogether.

    • Yet the same condition imposes an ongoing operational obligation on the very appliance it is inviting the landlord to remove.

    A requirement that applies only if an amenity exists is incompatible with a requirement that the amenity should preferably not exist at all.
    No enforcement officer can rationally enforce both simultaneously.

  2. The Council proposes that lack of compliance with subjective spatial preferences could justify removal of amenities — an outcome that would reduce bathroom provision, even though the amenity schedule in the licence already depends on this bathroom being part of the total of three shared bathrooms with toilets.

    • The Council’s own licensing framework requires this toilet and shower to exist.

    • A condition allowing removal of one of these amenities directly contradicts Schedule 2 and undermines the Council’s own assessment of required facilities.

8.2 Non-Statutory Dimensional Requirements and Attempt to “Create” Enforceability

Thirdly, Schedule 5 – Condition 1 imposes rigid dimensional requirements (e.g. 800×600 mm for WC, 1100×700 mm for basin, 700 mm in front of shower). These:

  • Do No appear in the Housing Act 2004;

  • Do No appear in the HMO Management Regulations 2006;

  • Do No appear in any Statutory Instrument;

  • Do No appear in Building Regulations;

  • Are No part of any national HMO amenity standard.

They appear only in the Council’s internal HMO guidance, expressly labelled as “recommended”.

A recommendation:

  • Is not law;

  • Is not binding;

  • Does No create a statutory duty;

  • Cannot justify compulsory structural works or removal of amenities.

The Council Historically Treated These Figures as Non-Binding

Evidence:

  • 2018 inspection – no issue raised;

  • 2019 inspection – no issue raised;

  • 2020 licence – bathroom expressly accepted;

  • Multiple identical bathrooms in other HMOs – never an issue.

Officers understood these numbers were not enforceable — they were not applied, not relied upon, and not inserted into licences.

The Officer’s Attempt to Bypass Non-Enforceability

Recognising that:

  • The dimensional standards are not law;

  • They are not enforceable under the Housing Act;

  • They cannot justify enforcement action;

the officer has attempted to insert these recommendations into the licence condition itself, apparently believing that once inside the licence, they become binding.

This is legally incorrect.

A Licensing Condition Cannot Convert Recommendations into Law

The Tribunal has consistently found that:

  • Licence conditions cannot create new obligations not found in legislation;

  • A council cannot use licence wording to expand its statutory powers (Hanif, Mohamed);

  • Conditions based on non-statutory guidance are ultra vires if they purport to impose legal duties beyond Parliament’s intent;

  • A landlord cannot commit an offence for failing to comply with a condition that is itself beyond the authority’s powers (Boddington v BTP).

Therefore:

  • A recommendation does No become law because an officer copies it into a licence.

  • An unenforceable standard remains unenforceable.

  • The Council cannot “bootstrap” legal authority by inserting its own guidance into a licence.

Result: The Condition Is Inherently Unlawful

The officer’s manoeuvre shows:

  • She knows the requirement has no legislative basis;

  • She knows it cannot be enforced directly;

  • She is attempting to achieve indirectly what cannot be required directly;

  • She is using the licence to enforce personal opinion, not statutory duty.

This is exactly the sort of administrative overreach the Tribunal exists to prevent.

8.3 Perverse Outcome

This inconsistency leads to a perverse situation:

  • The landlord may spend money redesigning the bathroom to meet non-statutory preferences, only to be told the result is still “not adequate”;

  • The officer may then demand removal of amenities — possibly the toilet itself;

  • Yet other parts of the licence require the macerator and WC to be fully operational.

The landlord is thus at the mercy of two mutually exclusive directives:

  1. Remove the toilet; and

  2. Ensure the toilet (and macerator) are fully operational at all times.

This alone renders the condition irrational in the Wednesbury sense.

8.4 No Impact on Compliance – Redesign Is Pointless

Because the property already has three bathrooms, any redesign of this bathroom does nothing to alter statutory compliance. Even if the facility were unused, the house would still exceed HMO amenity minimums.

A condition that:

  • Reduces amenities,

  • Adds cost,

  • Produces no safety or compliance benefit,

is disproportionate, unnecessary, and incapable of lawful justification.

9. Legal Uncertainty and Arbitrary Discretion

If Condition 1 remains:

  • The entire investment becomes vulnerable to ongoing, subjective reinterpretation.

  • Because the condition is based on opinion, not objective standards, no matter what the landlord does, the officer can deem the works “not acceptable”.

This creates:

  • No objective benchmark for compliance;

  • No legal certainty;

  • No guaranteed way to satisfy the requirement;

  • A continuous risk of further demands or loss of amenities.

In effect, the landlord becomes subject not to law, but to the personal discretion of one officer.

This is precisely the type of arbitrary decision-making prohibited by Wednesbury, Coughlan, and Lambeth.

10. No Identified HHSRS Hazard or Improvement Notice

For obvious reasons, no HHSRS Category 1 or 2 hazard has been identified in the first-floor bathroom.

Under the Housing Health and Safety Rating System (England) Regulations 2005:

  • Remedial works can be required only where a hazard is formally identified and notified.

No such hazard notice exists.
Therefore, no lawful basis exists to mandate works under HHSRS.

11. Building Regulations and Retrospective Enforcement

La Building Regulations 2010:

  • Apply only to new o materially altered work.

This bathroom:

  • Was installed more than 20–25 years ago;

  • Complies with Building Regulations as originally constructed;

  • Has no identified defect in structure, ventilation, plumbing, or fire safety.

Retrospective enforcement is barred by:

  • s.35 Building Act 1984, and

  • Lambeth LBC v Secretary of State [1981] 1 WLR 1529.

Therefore:

  • Building Regulations cannot lawfully be used to justify any redesign;

  • Even if they could, no breach exists to remedy.

12. A1P1 ECHR – Disproportionate Interference With Property Rights

Under Article 1 of Protocol 1 (A1P1) ECHR, via the Human Rights Act 1998, public authorities must not impose measures that:

  • Lack legitimate public purpose;

  • Impose unnecessary cost; or

  • Degrade the utility and value of a property.

Here, the condition:

  • Reduces amenities;

  • Serves no public safety or welfare benefit;

  • Imposes unnecessary cost on the landlord.

It is therefore:

  • Disproportionate

  • An unlawful interference with peaceful enjoyment of possessions.

13. Subjective Opinion Is Not Law

The Council’s position is based No on:

  • statute,

  • national standards,

  • Building Regulations, or

  • recognised amenity guidance,

but solely on the subjective personal opinion of a single officer.

Such opinions:

  • Have no legal force;

  • Cannot justify a licensing condition under ss.64–67 Housing Act 2004;

  • Are expressly rejected in Hanif y Mohamed, where councils attempted to rely on discretionary “views” that exceeded statutory standards.

The same bathroom layout:

  • Has been licensed repeatedly over many years;

  • Has passed numerous inspections;

  • Has never been the subject of enforcement or modification.

Tenant experience further confirms:

  • The bathroom is safe, practical, and comfortable.

Where a condition is based solely on subjective opinion, unsupported by legislation and contradicted by past practice and evidence, the Tribunal cannot lawfully uphold it.

14. Identical Bathrooms in Other HMOs

The exact same bathroom configuration exists in several of the Applicant’s other HMOs, which are:

  • Fully licensed;

  • Routinely inspected;

  • Operated under multiple local authorities.

In all these properties:

  • The bathroom is identical in size, layout, and spacing;

  • No hazard has ever been identified;

  • No officer has ever alleged non-compliance;

  • No redesign has ever been requested.

The only property where this configuration has become a “problem” is this one — and only because of the personal opinion of a newly assigned officer.

A standard that is:

  • Not in legislation;

  • Not required by national guidance;

  • Not applied by other councils;

  • Not applied by Lincoln in previous licences;

cannot form the basis of an enforceable condition.

At most, it can be a non-binding recommendation — but even as a recommendation its weight is low, given that every other relevant authority has ignored it for years.

Licensing cannot be used to give legal force to what is, in reality, personal preference. The Housing Act 2004 does not empower councils to elevate individual views into statutory obligations.

15. Absence of Legislative Authority & Failure to Respond

Despite detailed requests (Nov 2024; May/June 2025), the Council has:

  • Never identified any legislation authorising the proposed redesign or removal;

  • Failed to respond properly to substantive legal points.

This:

  • Confirms the demand is based solely on subjective judgment;

  • Constitutes a breach of common-law fairness under Doody.

16. Consolidated Legal Grounds and Authorities

Ultra vires – Housing Act 2004 ss.64(3)(a), 67(1)(b)
→ No hazard, no statutory breach; redesign/removal demands exceed powers.

Legitimate expectation – Coughlan
→ Bathroom accepted previously under identical law; reversal improper.

Wednesbury unreasonableness – Associated Provincial Picture Houses v Wednesbury Corp
→ Decision based solely on one officer’s subjective preference; no objective evidence or hazard.

No legislative change – Housing Act 2004, HMO Regs 2006, Building Regs 2010
→ Same law now as in 2020; no basis for a different outcome.

No HHSRS hazard – Housing Act 2004; HHSRS Regs 2005
→ No hazard notice; no lawful trigger for works.

Retrospective enforcement barred – Building Act 1984 s.35; Lambeth
→ 20+ year-old installation cannot be forced to meet modern “recommendations”.

Disproportionate interference – A1P1 ECHR
→ Condition removes amenities without benefit; disproportionate.

Contradiction with statutory purpose – Housing Act 2004
→ Condition reduces amenities in a compliant property; undermines legislative intent.

Failure to respond – Doody
→ Council ignored detailed legal requests; procedural unfairness.

17. Closing Submission – Request to Strike Out Schedule 5 – Condition 1 in Full

In light of all statutory, factual and evidential matters set out above, the Applicant respectfully submits that Schedule 5 – Condition 1 must be struck out in its entirety.

The Tribunal is invited to note that:

  • Nothing has changed in law, standards, or property configuration since the 2020 licence.

  • La only change is Council personnel.

  • The bathroom remains exactly as previously approved by:

    • Building Control;

    • HMO officers;

    • The 2020 licence.

No new legislation, hazard, or evidence justifies a reversal.

The bathroom:

  • Complies fully with legislation and national amenity guidance;

  • Has done so for many years;

  • Has caused no safety or usability issues.

The officer’s objection is purely subjective and cannot form the basis of a licensing condition under Coughlan and related authorities.

Most importantly:

  • A 7-bed HMO requires two bathrooms;

  • This property has three;

  • Even with the first-floor bathroom unused, statutory minima are fully satisfied.

Thus, the condition:

  • Serves no statutory purpose;

  • Is ultra vires, irrational, unenforceable, and contrary to the public interest.

The only lawful, rational outcome is to:

Strike out Schedule 5 – Condition 1 in full and confirm the licence on the same terms as the 2020 licence, under which all statutory requirements were – and continue to be – fully met.