Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Is Planning Permission Really Required for an HMO?

A recent article in Planning magazine suggested that landlords did not have to seek planning permission for HMOs.

This was on the basis that a simple change in use class was not a trigger for the making of a planning application. This is true, in a sense, but the reality (of course) is that it is a little more complex than that.

The trigger for the making of a planning application is a “material change of use” in a property. Section 55(3) of the Town and Country Planning Act 1990 makes clear that changing the use of a building from a single dwellinghouse to multiple dwelinghouses is always a material change of use. However, changing use of a property to HMO status does not automatically involve changing the number of dwellinghouses. A property will generally only consist of multiple dwellinghouses if it is being let under a number of different tenancy agreements. Therefore section 55(3) will not capture a change to HMO use which simply involves three or more people sharing in a property.

Of course, use for letting to three or more unrelated sharers does fall into a separate planning class, the new C4 planning class and movement between classes is indicative of a material change of use. It is not, however, conclusive evidence and consideration must be given to whether the actual use has changed.

In March 2010 an interesting planning appeal decision on this issue was made. Here planning consent had been refused for letting a property as an HMO under the old (pre C4) use class system. The appeal officer overturned that refusal asserting that the change to HMO use from use by a single family would not cause significant extra disturbance to surrounding residents.

Looking at all these factors it becomes clear that for some HMOs planning permission may simply not be required. Of course, for properties where the use was already established prior to 6 April 2010 then there is no change of use by continuing to let as an HMO and these properties do not require consent. However, even if there has been a movement from the C3 to C4 use classes after that date this may not count as a material change of use for planning purposes. A lot will depend on the actual use being made of the property and whether it constitutes an actual change in the use of the property. For example, it could be argued that simply letting a property to a couple and a friend is not a material change of use even if it involves a movement from a C3 to C4 use class.

Equally, a route of appeal against a local authority refusal to grant C4 consent is opened up by the appeal decision described above if it can be shown that the proposed C4 use is little different from prior use under the C3 class and will have a limited impact on the surrounding residents.

Of course, a lot of this discussion may be irrelevant if the new government alters the permitted development orders as they have previously suggested they will. However, it will remain relevant until then and may be an issue in some areas where the local authority intends to opt out of the permitted development changes.

In short therefore, an HMO is only an HMO for planning purposes if it involves a change of use from that which has gone before.

Filed under: England & Wales, FLW Article, ,

5 Responses

  1. mark says:

    We have a client who bought a property that was a vacant unlicensed repossed statutory HMO completing the sale in March 2010. Environmental development have said that although they know that the property has been let for over 15 years prior to acquisition, they will need a copy of certificate of lawful use before issuing the licence. Planning in East Oxford have said they are not going to grant any further permissions for C4 use and that as the property was vacant and being refurbished on 6th April, permission is likely to be declined… My client is going to instruct a planning consultant to chalenge this position.

  2. PainSmith says:

    This discloses one of the serious problems with the 6 April date point. If a property is empty on that date due to refurbishment or simply being between occupiers and therefore not being rented for C4 use but has been before and is intended to be again is it a change of use. We suspect that it is not and that an overly narrow definition of change of use is being taken.

  3. […] is still significant doubt as to whether planning consent is actually required for all HMOs as it is debatable as to whether a change to HMO use (of any size) necessarily constitutes a material change of […]

  4. […] However, there is some doubt as to whether the making of the direction actually matters. Even if an article 4 direction is made that does not mean that use as an HMO requires planning permission. This is because, contrary to popular belief, movement between planning classes does not require planning permission. What does require planing permission is a material change in use and it is by no means clear that a change of use to an HMO represents such a change. We have written more about this issue in this post. […]

  5. Ali Musani says:

    The other confusion in HMO’s is whether a bedsit can be fully self-contained,ie with kitchenette and shower, as various councils take different stances on this. I believe Kensington and Westminster accept self contained bedsits, but Brent and Camden say strictly speaking they have to have some sharing of amenities. Where there is a mix with some bedsits completely self contained and some sharing facilities in the same house there is confusion, and planning officers have difference of opinions. One would think that a self contained bedsit would be preferable to tenants and provide a better living environment, so long as they complied with the Environmental space standards, with the caveat from planning that they could be construed to be studio flats which could be sold off or leased as separate dwellings. i haven’t come across any appeal decisions on this issue.

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