Do I need planning permission for my HMO?

From 6 April 2010, planning rules are changed affecting in particular HMOs.

Note: The new coalition Government has announced plans to change the HMO regulations discussed below (as at July 2010) but at the current time, the below information applies until legislation is passed actually making any proposed changes. See this article for the proposed changes.

What is an HMO?

A simple non legal definition is that a house (or flat) is an HMO if there are three or more unrelated occupiers. There is also another type of HMO under section 257 Housing Act 2004 which provides for certain converted blocks of flats to be an HMO.

Related is specifically defined in the regulations but a quick summary is that they must be family members so brother, sister, cousin etc.

For a full in depth article explaining what an HMO is, see here

Do the new regulations apply to section 257 HMOs?

No

Where might planning permission be needed?

The regulations apply to all dwellings in England only. The new regulations do NOT apply to Wales as these powers are now vested in the Welsh Ministers so far as they are exercisable in relation to Wales.

What are use classes?

Under the Town and Country Planning (Use Classes) Order 1987 several classes of use are defined for which planning permission needs to be obtained. If a use is not mentioned in the use classes order they are know as a Sui Generis use. Examples are theatres, car showrooms and filling stations. A Sui Generis use still requires planning permission but is likely to be more specific than the generally more broad definitions contained in specific use classes.

What has changed?

The use classes order has been amended and a new HMO use has been added. The use classes order (from 6 April 20120) reads (so far as relevant):

“Class C3. Dwellinghouses

Use as a dwellinghouse (whether or not as a sole or main residence) by—

(a) a single person or by people to be regarded as forming a single household;

(b) not more than six residents living together as a single household where care is provided for residents; or

(c) not more than six residents living together as a single household where no care is provided to residents (other than a use within Class C4).

Interpretation of Class C3

For the purposes of Class C3(a) “single household” shall be construed in accordance with section 258 of the Housing Act 2004.”

“Class C4. Houses in multiple occupation

Use of a dwellinghouse by not more than six residents as a “house in multiple occupation”.

Interpretation of Class C4

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.”.

The class C4 is a new use class and any person wishing to let a property on and after 6 April 2010 will need a change of use planning permission allowing the class C4 use.

I have a house that will be occupied by 5 students on 6 April 2010. Will I need planning permission?

According to the press release, when these changes were announced, it was stated that the changes would not be retrospective which simply means that an enforcement notice can’t be issued for the use as an HMO before 6 April 2010 (but see below). There is nothing to suggest though that from 6 April 2010 the use as an HMO does not require planning.

A development requires planning permission. Development is defined by section 55 Town and Country Planning Act 1990 as being “…the making of any material change in the use of any buildings or other land…“

The CLG Guidance states “From the 6 April 2010 planning permission will be needed for any material change of use from C3 to C4. The courts have held that the first thing to consider in determining whether a material change of use has occurred (or will occur) is the primary use of the land. Each case will always be a matter of fact and degree and require a judgement from the local planning authority in the first instance.” [paras. 7 & 8]

Presumably this change of use requirement before planning needed is based on the assumption that any current use as an HMO before the planning change is lawful. One key problem is that any use previously as an HMO was probably not lawful because before the change, the rules only allowed a dwelling to be used (a) by a single person or by people living together as a family, or (b) by not more than 6 residents living together as a single household (including a household where care is provided for residents). Where a house was let on individual tenancies, it is highly unlikely that the letting was “as a single household”. If the house has been let on one joint tenancy there is more of an argument towards it being let as a household but that is not on it’s own conclusive. If it can be shown that the use of the property was lawful prior to the change, then, it seems that there will need to be a further “material change in use” to trigger any planning enforcement action by the local authority.

A local authority have ten years to enforce the house to be let as a family or as a single household, after which time a landlord may defend any enforcement notice on the grounds that it is out of time [s.171B(3) Town and Country Planning Act 1990.] The reason not many local authorities have pursued this course of action previously is because in order to do so, there must be a material change in the use of the land. It was often felt before the changes in April 2010 that the difference between a genuine related family and a group of students (for example) was not a “material” enough of a change of use. For a good description of the definition of a household under the previous rules, see Hossack, R (on the application of) v Kettering Borough Council & Anor [2002] EWCA Civ 886

The changes in April 2010, basically remove the case law relating to what a “household” is and define it as that contained in section 258 Housing Act 2004 (essentially a household means they must be related to each other).

Please see this useful page for cases on what is a “material change of use” and the 10 year rule.

If I obtain planning permission for class C4 (HMO) and then wish to let to a family, do I need planning to let to the family?

No.

The Town and Country Planning (General Permitted Development) Order 1995 has been amended to allow for a permitted development (so planning is not required) for change of use from a class C4 (HMO) to C3 (single household).

“Class I
Permitted development

I Development consisting of a change of use of a building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order from a use falling within Class C4 (houses in multiple occupation) of that Schedule.”

If I let a property to a family, will I need to reapply / apply for planning permission to let it as an HMO?

The letting of the property to a single household family could loose the class C4 (HMO) use if it has been “abandoned” and planning permission would then be required.

The impact assessment produced by CLG point out that if permission is granted for C4 and the property reverts to C3 for a temporary period then the C4 permission may not be lost. This is because the planning permission has been implemented and it will depend upon whether there has been abandonment of the C4 use or some deliberate act to make the property not a C4 HMO.

Any subsequent change back to a HMO will only require planning permission where the HMO use has been extinguished. This is a matter for the local planning authority to determine in the first instance on a case by case basis but in practice we consider that if planning permission is obtained for a change of use from C3 to C4 that planning permission will endure even if there is a temporary reversion to C3. [para 29 Introducing a definition of houses in multiple occupation into the Use Classes Order Impact assessment]

It is unclear whether at the time of obtaining planning permission for C4(HMO) you will be able to also obtain consent to drift between HMO, single family and back again without obtaining further planning permissions before each change.

Can I apply for “established use”

Established use certificates have been abolished (in 1992 I think.) However, there is now available a “certificate of lawful use”. This certificate is the best option for any landlord wanting to be certain that the use of their property as an HMO is lawful. An article about this certificate is here.

If you are thinking of purchasing a property, you may also obtain a Certificate of Lawfulness Of Proposed Use or Development (CLOPUD) which would tell you if any operations that are proposed, in, on, over or under the land are lawful.

I have a house with 10 people sharing. Do I need planning?

The new class C4, is only permitting the use (with planning permission) for up to six persons. Therefore any property let to more than this has no specific class within the use classes order. The use of a property as an HMO with more than six people sharing is therefore known as a “Sui Generis”. This type of use will normally require planning permission and the new rules have made no change to this.

I have an HMO Licence. Do I need planning permission?

The two issues are entirely separate so just because you have a licence does not automatically mean you don’t need planning permission.

However, it is submitted that should an enforcement notice be served on a licensed property, a key defence would be as contained in s.174(2) TACPA 1990 namely,

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

If I don’t have planning permission, what is the criteria for a local authority to serve an enforcement notice on me?

An enforcement notice may be served if “… it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.” [s.172(1)(b) TACPA 1990] Expedient is defined on the Harrogate Borough Council website as:

“Even when it is technically possible to take enforcement action, in law the Council is required to decide whether it is expedient.  This means that formal enforcement action is discretionary and all the relevant planning circumstances must first be considered.  Formal action will not be taken just because development has started without permission, or solely to regularise acceptable development or against trivial breaches of Planning Control which cause no harm to amenity.  The decisive question for the Council will be whether the breach of control unacceptably affects the quality of life or the public interest.”

What are the grounds of appeal to an enforcement notice?

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters;

(e) that copies of the enforcement notice were not served as required by section 172;

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.

[s.174(2) TACPA 1990]

How do I appeal against an enforcement notice?

(a) by giving written notice of the appeal to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect; or

(b) by sending such notice to him in a properly addressed and pre-paid letter posted to him at such time that, in the ordinary course of post, it would be delivered to him before that date ; or

(c) by sending such notice to him using electronic communications at such time that, in the ordinary course of transmission, it would be delivered to him before that date.

[s.174(3) TACPA 1990]

What are the penalties for failing to comply with an enforcement notice?

The penalties are severe. There can be a fine not exceeding £20,000 and in determining the amount of any fine to be imposed on a person convicted of an offence, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.

It shall be a defence for the person to show that he did everything he could be expected to do to secure compliance with the notice.

[s.179 TACPA 1990]

I am a resident landlord and I let 3 bedrooms to lodgers. Do I need planning permission?

Technically yes because this type of situation is still regarded as an HMO for the purpose of section 254 Housing Act 2004 and would therefore fall under the new class C4. However, this situation is slightly unusual because there are two classes now involved (class C3 and C4). It could be argued that the primary use is that of a dwelling and the lodgers are simply incidental to that use and therefore there might not be a material change in use and therefore planning may not be needed.

(3) A use which is included in and ordinarily incidental to any use in a class specified in the Schedule is not excluded from the use to which it is incidental merely because it is specified in the Schedule as a separate use.

[Article 3(3) Town and Country Planning (use classes) Order 1987]

Useful Links (not already linked to above)

CLG Guidance – CHANGES TO PLANNING REGULATIONS FOR DWELLING HOUSES AND HOUSES IN MULTIPLE OCCUPATION

The Town and Country Planning Act 1990

Planning-Applications.co.uk

The Planning Inspectorate

Planning Glossary

Fairstate Ltd. v First Secretary of State & Anor [2005] EWCA Civ 283

Secretary Of State For Environment & Anor v Thurrock Borough Council [2002] EWCA Civ 226

Times Article

Note: I have been slightly out of my comfort zone with this article being about planning law rather than landlord and tenant law. You should seek specialist advice if you have any particular planning issue.

If you have any suggestions for this article or think anything is legally inaccurate, please do not hesitate to comment below and we will consider any recommended amendments.

Thanks to @ddortongibson for helping with this article

1. 

   Nick says:

   17/03/2010 at 7:35 pm

   Great article, well done. There has been a lot of hysteria about the subject so it’s good to see a summary of the facts.

   reply
   • 

     admin says:

     18/03/2010 at 10:53 am

     Thank you for your kind comments.

     reply