Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Mobile Homes and Article 8!

In Murphy v Wyatt the Court of Appeal Wyatt brought in a mobile home to replace a dilapidated caravan after her partner Mr Barrett died. The caravan was located on just under 2 acres of rough pasture which the Wyatt’s partner used for his livery business. The landlord served a notice to quit in 2009.

Mr Barrett entered into a oral weekly tenancy in 1975 and in 1979 he moved a caravan onto the plot and began sleeping in the same from time to time. His relationship with Wyatt began in the mid-80s and in 1989 Wyatt moved in with Mr Barrett. In 1996, Mr Barrett then ceased using the land for his livery business.

Mr Barrett then sought a certificate of lawful use for the caravan in 2002 in order to claim Housing benefit. Upon Mr Barrett’s death in 2002 Wyatt continued living in the caravan and paid rent with Murphy’s consent.

The caravan was then replaced in 2007 with a mobile home. Wyatt failed to obtain planning permission and failed to obtain Murphy’s consent. The mobile home was on the same original location but was slightly larger than the caravan. Again the certificate of lawful use was obtained.

The issue before the Court was therefore did Wyatt have security of tenure under the Mobile Homes Act 1983.

The court held that Wyatt did not and found in favour of Murphy. The reasoning for the courts decision was that the 1983 Act could not apply to a tenancy where planning permission was sought after the tenancy term began. The court held

“it would be a little surprising if the 1983 Act protected an occupier, who, after entering an agreement, brought a caravan onto the premises and lived in it, simply because there was nothing in the agreement which precluded his from doing this, unless there has always been planning permission for such a use…”.

The court also held that they did not believe that the 1983 Act could apply to more land than the land on which the mobile home is to be sited plus any garden or other amenity land. If the Act applied to land other than the pitch that was for the tenants use this would run into “serious conflict” with the legislation protecting business and even agricultural tenants.

Wyatt sought permission to appeal but was refused. The court did however state that if any further applications for possession of this site are made the courts may need to consider Article 8 of the European Convention on Human Rights.

Whilst we can not fault the court for its reasoning it is unfortunate that the issue of Article 8 was dealt with so swiftly and briefly. With the influx of cases recently suggesting that Article 8 is only applicable to social landlords there are fears among private landlords that the scope of Article 8 is going to be extended and some certainty would have certainly been welcome.

Filed under: England & Wales, FLW Article, , , , ,

Deception

Whilst this topic has very little to do with the issues we normally deal with we thought some readers may find this article interesting.

Mr Beesley obtained planning permission to construct a barn. However, he actually constructed a 3 bedroom house and disguised it as a barn. He and his wife then lived there for 4 years undetected however, when Mr Beesley then applied for a certificate of lawfulness the certificate was refused.

The case has had quite a lot of publicity with many people divided on whether Mr Beesley should or should not be granted the certificate of lawfulness. That decision we leave to you.

What Mr Beesley did after the 4 years of occupation was to apply under section 191 of the 1990 Act for a certificate of lawfulness of the building as a dwelling house in reliance on section 171B(2) on the ground that there had been change of use of the building from the permitted barn to that of a single dwelling house and that the four-year period within which enforcement action had to be brought had elapsed.

However the Supreme Court took the view that there had been no change of use of the building to use as a single dwelling house for the purposes of section 171B(2) as the building had never been constructed or used as a barn. They further held that the issue was whether it could have been the legislator’s intention that a person conducting himself like Mr Beesley could invoke the benefits of sections 171B and 191.

Mr Beesley’s conduct consisted of positive deception in matters integral to the planning process and was directly intended to and did undermine the regular operation of the process. If the certificate was issued he would have profited directly from that deception if the passing of the normal four-year period for enforcement which he brought about by deception were to entitle him to resist enforcement. This, the court held could not be the intention of the legislator.

To quote Lord Brown of Eaton-Under-Heywood USC

on any possible view the whole scheme was in the highest degree dishonest and any law abiding citizen would be not merely shocked by it but astonished to suppose that once discovered, instead of being enforced against, it would be crowned with success and Mr Beesley entitled to a certificate of lawful use to prove it. The dishonesty involved in this case appeared to constitute a category all its own in this area of the law.

The council is now to make a decision on the continued use of the building as a dwelling house and additionally on its construction.

Filed under: England & Wales, FLW Article, , ,

Oxford, again….

We have been provided with a copy of a letter that Oxford City Council is distributing to relevant parties in the lettings industry.

As regular readers will know, the Labour government amended the planning use classes in April 2010 to limit the C3 use class and created a C4 use class for HMOs’. We reported on this here.

After the election the new coalition government amended the General Permitted Development Order to allow movement between the C3 and C4 classes. This was reported here.

Local Authorities can opt out of the GPDO by making an Article 4 Direction and requiring planning permission to switch from C3 to C4 use. Oxford is stating that they have a shortage of housing and a high demand for HMO accommodation. This might appear to be inconsistent with a policy of increased planning control but Oxford justify the policy by stating that there is a shortage in all types of accommodation and that wholesale conversion to HMOs in all areas means that other areas are not satisfied. However, Planning Policy Statement 3 requires local authorities to adopt planning policies that provide sufficient living accommodation for all types of use. It will be for Oxford to show that their new restrictions on HMO accommodation do not violate this policy statement.

Finally, there is some doubt as to whether Oxford’s article 4 Direction will actually matter. As we explained in this post the fact that a property use moves from one use class to another does not automatically mean it is a material change of use, which requires planning permission.

It should also be noted that Oxford is not permitted to charge a planning application fee for applications made as a result of an Article 4 Direction and one possible way of frustrating the proposals is simply for a large number of landlords to make applications thereby tying up resources.

Thank you to Mark at College and County

Filed under: England & Wales, FLW Article, , , , , , ,

Manchester Makes Article 4 Direction

We have been informed that Manchester City Council has made an Article 4 direction in relation to HMO properties. This direction will come into force on 8 October 2011. More details can be found here.

This means that from the date the direction comes into force (8 October 2011) the amendments introduced in October (which we wrote about here) will no longer apply and landlords may need to seek planning permission to let their properties as an HMO.

Full details of the new planning categories and their effects can be found in this post.

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.

At this stage any Manchester landlord who either is now or is considering renting a property in such a way that it will fall into the C4 planning category should consider applying for a certificate of lawful use as it will be hard for the Council to refuse it.

After October next year any Manchester landlord who is starting to use a property as an HMO or who proposes to do so will need to consider whether they should seek planning consent. If consent is sought and refused for the three months after the making of the direction (ie before 8 January 2012) the landlord may be able to seek compensation from the Council.

Naturally, if such consent is refused the landlord may also wish to appeal the decision of the Council.

Filed under: England & Wales, England only, FLW Article, ,

HMOs and Planning- Judicial Review

We have just been informed (thanks, Chris) that Milton Keynes Council has launched a judicial review of the decision by the new Coalition Government to make a further amendment to the General Permitted Development Order (GPDO).

As most of our readers will know the previous government introduced a new C3 planning use class which was designed to deal with HMOs. Movement from the C3 use class (for ordinary residential dwellings) potentially required planning consent while movement the other way did not require consent as it was permitted under the GPDO. This was an unpopular move and therefore the new coalition government has made a further change to the GPDO to permit movement from the C4 to the C3 use class. Accordingly, the announcement of the publication of the amendments to the GPDO came was made on 8 September and came into force on 1 October. All our posts on this topic can be found by following this link.

Milton Keynes Council is unhappy about the change which prevents them from regulating HMOs in their area through the planning process. At a meeting on 8 September they resolved to challenge the change on the basis that there was insufficient consultation and that the consultation was based on a decision that had, in effect, already been made. This has been done and, according to the Council’s press release consent has been given and the Government has until 8 October to file a defence.

One of the things the Council is seeking is an injunction suspending the operation of the order and they are also ultimately seeking that the change be quashed. This would of course mean that planning permission would potentially then be needed for changes from the C3 to C4 use class. The Council is also seeking a change in the legislation to allow them to opt-out of the permitted development order (called an article 4 direction) without the risk of having to pay compensation. Therefore it seems likely that, even if they were to lose the judicial review application, the Council will seek to make an article 4 direction in their area so requiring Milton Keynes landlords to seek planning permission for C4 use.

At this stage it might be wise for landlords who are letting under the C4 use class to seek a certificate of lawful use from the relevant planning authority which will legalise their actions.

Filed under: England only, FLW Article, ,

HMO Planning Permitted Development Order Published

Yesterday, Grant Shapps announced that the promised further amendments to the General Permitted Development Order (GPDO) designed to undo the creation of the C4 planning class had been laid before Parliament.

We have previously posted on the creation of the new C4 planning class and you can find all our posts on this topic by following this link.

Essentially the new amendments mean that movement between the C3 and C4 use classes in either direction is permitted without the need to apply for permission. Larger HMOs which have more than 6 occupiers will not be able to take advantage of the new Order as these properties do not fall into the C3 or C4 category and they will probably still need to seek planning consent.

Irrespective of the changes there 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 use.

Individual local authorities will still have the ability to make a direction (known as an article 4 direction) to dis-apply this part of the GPDO for parts of their district if they can present a reasonable case for doing so. They will need to conduct a suitable consultation in advance of making such a direction. Further, for 12 months after the direction has been made there is the possibility of claiming compensation if financial loss is suffered by the local authority refusing to grant planning consent in respect of a matter which would have been exempt from the need to seek planning consent but for the direction. Given the squeeze on budgets it is doubtful that many local authorities will want to incur the costs necessary to make a direction.

Finally it should be remembered that none of this applies in Wales.

The full Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2010 can be seen here.

Filed under: England only, FLW Article, ,

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, ,

Need for HMO Planning Consent to Be Reduced

Yesterday Grant Shapps announced that he would make amendments to the system of planning for HMOs.

It is not proposed to amend or scrap the new C4 planning class. Instead what is being proposed is an amendment to the General Permitted Development Order which will allow movement from the C3 planning class to the C4 planning class without a planning application being made.

However, local authorities will be able to use Article 4 of the The Town and Country Planning (General Permitted Development) Order 1995 to override this blanket consent in areas where they consider that there are excessive numbers of HMOs and that control over them is required.

While this will cause relief for many landlords by removing the need to obtain planning permission in many areas it will also make things more complex as individual planning authorities can elect to enforce planning requirements for HMOs or not at their discretion. Therefore while it will reduce the burden for many landlords it will also provide a further trap for the unwary as there will not be a consistent policy across the country.

It should be noted that the changes are not yet in force and will not appear until at least 1 October 2010. Therefore the requirement to obtain planning consent still applies at the current time. It should also be noted that this only relates to England and that there is no requirement for HMOs in Wales to have planning consent at this time.

PainSmith Solicitors are running a seminar on HMOs and planning consent on 22 June and will provide more guidance on this issue at that stage. More information on our seminar programme along with booking forms can be found on our website at www.painsmith.co.uk/Seminars.

Filed under: England only, ,

New Planning Categories for HMOs

We have previously reported that the Government was planning to amend the Town and Country Planning (Use Classes) Order 1987 to create a separate planning class for HMOs. The changes will come into force on 6 April 2010. The changes will only apply to England as Wales has its own devolved powers to deal with these matters.

The statutory instrument to carry out this change has just been published on the OPSI website as the The Town and Country Planning (Use Classes) (Amendment) (England) Order 2010.

The new planning classes will be as follows:
Class C3 has been amended to cover single households of up to six occupiers.
A new class C4 has been created which will cover HMOs of up to six people.
Properties with more than six occupiers will continue to be outside any planning category.

These changes will bring the definition of HMO for the purposes of planning in line with those used in the Housing Act 2004. The upshot of this issue is that any property which is an HMO (irrespective of whether it requires a licence) will now need to have a separate planning approval. The government has previously stated that they do not consider that this applies to tenancies which are currently in place as at 6 April but will presumably an application will need to be made on renewal. However, it is not clear how local authorities will view this area.

This will undoubtedly cause a massive increase in the number of planning applications and therefore the number of appeals. This will therefore mean yet another increase in cost to landlords and the amount of paperwork. Inevitably, many landlords will simply decline to let to sharers to avoid the hassle.

Filed under: England & Wales, England only, , ,

New Announcements on HMOs

The Department for Communities and Local Government has today published its response to comments made on a previous consultation on the planning status of HMOs and has also launched a new consultation in relation to additional and selective licensing powers.

In July 2009, the CLG launched a consultation on possible ways to deal with the creation of ‘HMO ghettoes’, where large numbers of HMO properties cluster together in a small area. We reported on this here. This issue is particularly prevalent in areas with high student populations. There were several proposals to deal with this but the most highly advocated, and the one most supported by the consultation was to create a new planning use class specifically for HMOs. Currently, dwelling-houses make up the C3 use class and are defined as properties comprising one household with up to 6 occupants. The definition of household is unclear but is not the same as that used by the Housing Act 2004. HMOs falling outside this class were uncategorised and required planning permission to be sought but a large number of smaller HMOs fell within the class and had no involvement from planning officers. The proposed changes will mean that a new use class is created which will be for HMOs specifically and will replicate the definition in s254 of the Housing Act 2004. That is properties rented to three or more occupiers where those occupiers do not form one household. The change will be implemented by an amendment to the Town and Country Planning (Use Classes) Order 1987 which will come into effect on 6 April 2010. In short, properties to be rented to three or more sharers after that date will require planning consent. This change has enormous potential effects. A large number of properties are let to small groups of sharers and are therefore HMOs without ever becoming licensable. Properties that are to be let in this manner after 6 April will require planning permission to be sought in advance. As the government accepts, this will lead to a significant rise in planning applications. What it appears not to have realised is just how large that rise could be and, in addition, that there will be a concomitant rise in planning appeals. It is not yet clear whether an application for the new use class will be met by an addition of that class to the current one or whether the use class will be changed. If it is the latter then landlords will, of course, need to make another application to change the use back again if they wish to let to a family. Landlords will therefore need to choose between letting to families or as an HMO or resign themselves to making regular applications for a change of use.

In addition the the response the CLG has published a ‘short’ consultation for a change in the process by which local authorities gain permission for additional and selective licensing schemes under the Housing Act 2004. Additional licensing allows for a local authority to license HMOs that fall outside the mandatory licensing set by Government. Selective licensing allows for the licensing on non-HMO landlords in areas of low-housing demand where there is a problem with anti-social behaviour. Currently in order to be permitted to carry through such licensing a local authority must carry out a consultation exercise and then seek the permission of the Secretary of State to go forward. The intent is to give a blanket permission to all local authorities so that they need merely carry out the consultation exercise. On the face of it this seems perfectly reasonable. However, when we consider that a number of authorities have been refused permission for additional or selective licensing or have been asked to provide more information then there must be doubt as to whether it is appropriate for this control to be removed. There is certainly a danger of a number of costly and time-consuming judicial review applications in order to challenge the local authority consultation process. For a landlord facing a prosecution such action, while unattractive, may be preferable to a substantial fine.

Although the Government, in announcing these measures reiterated their commitment to a landlord registration scheme this is something that will require primary legislation and, unsurprisingly, will not make it into this Parliament and, unless Labour wins the election, presumably not into any Parliament. One is therefore left to wonder if the latter measure is an effort to introduce partial landlord registration by the back door.

We do not usually comment on political matters, but it is disturbing to see these measures, along with others, being introduced in very short order in April. It immediately gives rise to concerns as to the level of consideration that has been given to the measures and their likely effects. It also gives the appearance of measures being forced through prior to an election in order to score points with the electorate or simply on the basis that the Conservative party, should they win an election, will be too busy to reverse them. One hopes that is not what is going on but if it is then it is sad to see cheap political point-scoring at the expense of the private rented sector which houses a significant percentage of the population and makes a substantial contribution to, an already weakened, economy.

Filed under: England & Wales, , ,

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