Agenda item

            The HMO Unit Manager submitted for the Committee’s consideration an application for a Licence permitting the use of premises as a House in Multiple Occupation (HMO).

 

“1.0     Purpose of Report/Summary of Main Issues

 

1.1            To consider an application for a Licence permitting the use of premises as a House in Multiple Occupation (HMO).

 

Premises	Application No.	Applicant(s)	Managing Agents
30 Eblana Street, Belfast, BT7 1LD	9399	Mr Enda Hughes	Boyle Properties

 

            Members are reminded that licences are issued for a 5-year period with standard conditions. Where it is considered necessary to do so, the Committee can also impose special conditions. 

 

                                 Background

 

1.2       An individual purporting to be the owner of the accommodation submitted an HMO licence application on 22nd August, 2019 and an HMO licence was granted to that individual on 30th December, 2019.

 

1.3       However, following an application to vary the managing agent of the property, officers established that the individual to whom the licence was granted was not, in fact, the legal owner of the property. Instead, he was one of two directors of a limited company who actually owned the property. Members will be aware that a limited company is a separate legal entity.

 

1.4       Officers sought and obtained advice from Counsel on the validity of the licence and legal services advised that section 8(1) of the 2016 Act clearly requires that the owner of the accommodationmust apply for a licence, which was not the case here. Therefore, officers held that the misrepresentations made by the abovementioned individual regarding the ownership of the property, invalidated the licence meaning it no longer had effect. The NIHMO Unit emailed the individual advising him of the Council’s decision on 26th July, 2022.

 

1.5       On 23rd June 2022, the applicant, Mr. Hughes, submitted an application for a new HMO licence (He was a prospective purchaser of the property at the time).

 

1.6       The sale of the property was completed on 28th July, 2022.

 

1.7       Therefore, given that there was no valid licence in place when the applicant’s purchase of the property completed, the applicant could not avail of section 28 of the 2016 Act.

 

1.8       Had the licence remained in effect and, whilst still being an application for a new licence, with overprovision being taken into account (as indeed it must be), the Council would not have deemed granting this application to result in overprovision, given that it would effectively have been a transfer of an existing licence.

 

2.0            Recommendations

 

2.1       Taking into account the information presented Committee is asked to hear from the Applicant and make a decision to either:

 

(i)       grant the application, with or without any special conditions; or

(ii)      refuse the application.

 

2.2       If the application is refused, the applicants have a right of appeal to the County Court. Such an appeal must be lodged within 28 days of formal notification of the decision.

 

 

3.0            Main Report

 

            Key Issues

 

3.1       Pursuant to the 2016 Act, the Council may only grant a licence if it is satisfied that:

 

a)        the occupation of the living accommodation as an HMO would not constitute a breach of planning control;

b)       the owner, and any managing agent of it, are fit and proper persons;

c)        the proposed management arrangements are satisfactory);

d)       the granting of the licence will not result in overprovision of HMOs in the locality;

e)        the living accommodation is fit for human habitation and:

 

(i)          is suitable for occupation as an HMO by the number of persons to be specified in the licence, or

(ii)        can be made so suitable by including conditions in the licence.

 

Planning

 

3.2       As this is a new application, the Council’s Planning Service was consulted. It confirmed that a Certificate of Lawful Existing Use or Development (‘CLEUD’) was granted in May, 2022with the planning reference LA04/2022/0558/LDE.

 

            Fitness

 

3.3       When considering the fitness of an applicant the Council must have regard to any offences concerning fraud/ dishonesty, violence, drugs, human trafficking, firearms, sexual offences, unlawful discrimination in, or in connection with, the carrying on of any business; or any provision of the law relating to housing or of landlord and tenant law. It also permits the Council to take into account any other matter which the council considers to be relevant.

 

3.4       The NIHMO Unit has consulted with the following units within the Council’s City and Neighbourhood Services Department –

 

(a)        Environmental Protection Unit (‘EPU’) – it has confirmed that in relation to night-time noise there has been no relevant enforcement action required in respect of the HMO in the last 5 years,

 

(b)        Environmental Protection Unit (‘EPU’) – it has confirmed that in relation to day-time noise there has been no relevant enforcement action required in respect of the HMO in the last 5 years, 

 

(c)        Public Health and Housing Unit (‘PHHU’) – it has confirmed that in relation to rubbish accumulation/filthy premises, there has been no relevant enforcement action required in respect of the HMO in the last 5 years,

 

(d)        Enforcement Unit (‘EU’) – it has confirmed that in relation to litter and waste, there has been no relevant enforcement action required in respect of the HMO in the last 5 years, 

 

3.5       The applicant and Managing Agent have confirmed that they have not been convicted of any relevant offences as set out at paragraph 3.3 of this report.

 

3.6       The applicant or Managing Agent have not been convicted of any HMO related offences by the Council. The EPU, PHHU and EU, solely in respect of their statutory functions, have confirmed that there are no relevant, previous convictions in respect of the Applicant, Managing Agent or occupants. Due to data protection issues which have recently arisen, PSNI has not been accepting or responding to notification of these applications. Officers are continuing to engage with PSNI to find a resolution to this issue.

 

Overprovision

 

3.7       For the purpose of determining whether or not the granting of a licence would result in an overprovision of HMOs in the locality of the accommodation, and in order to ensure consistency as both a planning and licensing authority the locality was defined as being HMO Policy Area ‘HMO 2/22 Botanic, Holylands, Rugby’ as defined in the document ‘Houses in Multiple Occupation (HMO’s) Subject Plan for Belfast City Council Area 2015’.

 

3.8       Legal Services has advised that there is a clear requirement in section 8 of the 2016 Act for the Council to be satisfied that the granting of a licence will not result in overprovision.

 

3.9       On the date of assessment, 17th October 2022, there were a total of 1087 licensed HMOs in HMO policy area ‘HMO 2/22 Botanic, Holylands, Rugby’. This equates to just over 45% of the total dwelling units of 2409 within the policy area. Which in turn exceeds the 30% development limit as set out at Policy HMO 1. The 1087 licensed HMOs have a capacity of 4897 persons

 

3.10     The total number of dwelling units in a Policy Area is measured by Ordnance Survey’s Pointer database.

 

3.11     The Council must also consider the need for housing accommodation in the locality and the extent to which HMO accommodation is required to meet that need.

 

3.12     The Council recognises that there is a need for intensive forms of housing and to meet this need, HMOs are an important component of this housing provision. HMOs, alongside other accommodation options within the private rented sector, play an important role in meeting the housing needs of people who are single, who have temporary employment, students, low-income households and, more recently, migrant workers.

 

3.13     In September 2017, The Housing Executive published the document ‘Housing Market Analysis Update – Belfast City Council Area’ which states ‘HMOs form an important element of the PRS, particularly for younger people on low incomes and for single people, under the age of 35, affected by the limitation of housing benefit to the shared room rate. Anecdotal evidence also indicates that this has been a popular sector with migrant workers.’

 

3.14     On 28th October 2022, out of 19 premises available for rent within the BT7 area on the website PropertyNews.com there was 1 licensed HMO, which from the information presented on the website, represented 4 bed spaces. The HMO was available for immediate occupation. It should be borne in mind that the peak letting time for HMO accommodation in BT7 is before the commencement of the academic year.

 

3.15     Anecdotal evidence from conversations with HMO managing agents suggest that there is currently a lack of HMO accommodation available in the locality.

 

3.16     The fact the use of the property as an HMO is permitted for planning purposes is a relevant consideration in determining whether the grant of this licence will result in overprovision. There is an argument that it may not do so as the premises are already being used as an HMO.

 

3.17     However, it should be borne in mind that planning permission was granted on the basis that the use had been established for 5 or more years and was therefore immune to enforcement. No assessment of overprovision was made at that time. Given the level of licensed HMO properties in this locality as set out above it would be highly unlikely that a planning application for a new HMO in the area would be successful as the thresholds in the 2015 Plan have been significantly exceeded.

 

3.18     Officers are, therefore, of the opinion that it is too early to tell whether there is a temporary lack of HMO accommodation in the locality or evidence of an emerging long-term supply issue.

 

Objections

 

3.19     No objections have been received in relation to this application.

 

Attendance

 

3.20     The applicant and/or their representatives will be available to discuss any matters relating to the licence application should they arise during your meeting.

 

Suitability of the Premises

 

3.21     The accommodation was certified as complying with the physical standards for an HMO by a technical officer from the NIHMO service on 31st October, 2022

 

Notice of Proposed Decision

 

3.22     On 28th October 2022, pursuant to Paragraph 9 of Schedule 2 of the Houses in Multiple Occupation Act (Northern Ireland) 2016, Officers issued a Notice of Proposed Decision to the Applicant setting out the terms of the proposed licence. (Appendix 2)

 

3.24     The Notice of Proposed Decision stated that the Council proposed to refuse the licence on the grounds of overprovision. A statement of reasons for the proposal was included in the Notice of Proposed Decision.

 

Manager’s Query further to the Notice of Proposed Decision

 

3.25     On 1st October 2022, Boyle Properties emailed the HMO unit seeking clarity as to why the application was not being considered as a renewal. (Appendix 3).

 

Officers responded to the query on the same day (Appendix 4)

 

Financial and Resource Implications

 

3.26     None. The cost of assessing the application and officer inspections are provided for within existing budgets.

 

Equality and Good Relations Implications

 

3.27     There are no equality or good relations issues associated with this report.”

 

It was reported that Mr. Hughes, the applicant, Mr. D. Boyle, the Managing Agent and Mr. E. Sloan, the applicant’s legal representative were in attendance and they were welcomed by the Chairperson.

 

            Mr. Sloan made a representation on behalf of the applicant and stated that they understood and respected the legislative and policy basis which underpinned the HMO Licensing Scheme, and it was Mr. Hughes’ intention and hope to be a responsible and compliant landlord.  Mr Sloan informed the Committee that Mr Hughes had agreed to purchase the property at the cost of £185,000 in February 2022 in the knowledge that there was an existing HMO licence in place and intended to continue it and had engaged in significant borrowing for the project. He added that his client had engaged in full due diligence and inspected the existing HMO licence which had been granted in 2019 for a 5-year period until 2024.  Mr. Sloan explained that Mr. Hughes understood that the licence did not pass with the property but he had been fastidious in his approach and instructed Mr. Boyle, Managing Agent to assist him with the licence.  Mr. Sloan referred to Section 28 and stated that Mr. Hughes followed the correct procedures in relation to the licence application and planning requirements. Mr. Sloan added that procedurally, it was a compliant application and Mr. Hughes was a suitable applicant.  He continued that as the report confirmed, the property was deemed suitable after inspection and there had been no objections.  Mr. Sloan advised the Committee that Mr. Hughes applied for the licence to be transferred to him on 23rd June and provided a timeline and details of correspondence with the Council which had led Mr. Hughes to have a legitimate expectation that the application would proceed.  He added, that at no time were any issues raised nor was there an interrogation of the previous licence. 

 

            Mr. Sloan stated that there may be a degree of procedural unfairness which he did not want to labour upon but highlighted a technicality in the report in relation to the previous licence and its invalidation.  Mr. Sloan reported that he had looked at the Land Registry details which had uncovered inconsistencies in relation to the property’s previous owner and licence whereby essentially there was a wrong factual basis for unilateral declaration that the licence was invalid.  In this regard, he stated he did not want to pursue the technicalities further as it would be disproportionate.  Mr. Sloan asked that Mr. Hughes be treated as a compliant and suitable applicant for a new licence and requested a continuation of the status quo in relation to the licence to enable Mr. Hughes to continue to provide housing provision in a responsible manner.

 

A Member thanked Mr. Sloan for his detailed representation and that of the Officers and expressed confusion whereby it had appeared that Mr. Sloan had made representations on behalf of the previous owner which would change the conversation in relation to the Committee’s decision and asked for further clarification. Mr. Sloan replied that if the previous licence had been valid as it had appeared to be for 5 years with 2 years to run; and had the application been submitted prior to completing the purchase it would have been treated as a deemed transfer even though it was an application for a new licence.  He concluded that the issue was that the Council had decided it would not be treated as such as the previous licence was invalid due to a misrepresentation made by the previous owner to which he added was not correct from a factual basis. 

 

The HMO Manager responded to the points made by Mr. Sloan. and set out the process and Council engagement which had taken place with the previous owner.  He reported that the previous owner and respective managing agent had been aware of the Council’s concerns in relation to the validity of the licence.

 

A Member acknowledged the diligence with which the HMO Manager and Officers conduct the work carried out and their in-depth policy knowledge.  Another Member raised the matter of rebalancing communities like Holylands, Stranmillis and Lisburn Road and stopping the culture of purchasing a property with a HMO licence as long as it was applied for before the property purchase was completed.

 

                 The Interim City Solicitor/Director of Legal and Civic Services referred to the Subject Plan as only one of a number of considerations which needed to be taken into account.  She added that it was an appropriate starting place and the legislation required the Members to look at the issue of need.

 

            Moved by Councillor McCann,

            Seconded by Councillor Murray,

 

      That the Committee refuse the application for a new licence to operate a House of Multiple Occupation on the basis that to do so would result in overprovision.

 

The Committee agreed to refuse the application.