The final type of HMO definition we are going to look at relates to planning.
HMOs and plannning
Historically there hasn’t been any substantial system for controlling the overall number of HMOs in a particular area. Notably, an HMO licence cannot be refused on the basis that there are a large number of other HMOs in a particular area.
The traditional method of controlling property and land use in the UK has been through planning control.
In April 2010 new forms of planning control were introduced in the final days of the Labour government. These were promptly amended by the new Conservative/Liberal Democrat government and there has then been individual local intervention by a number of planning authorities.
Planning is controlled by requiring planning consent for a material change of use.
The definition of “material change of use” is a little uncertain a lot of the time so to make this a little less unwieldy to operate, property use is generally split into planning use classes by one of a range of Planning (Use Classes) Orders.
Where a change of use does not result in a property moving between use classes it is not considered material. Where the use class does change the change of use will probably, but does not have to, be considered as material.
C3 Use Class
Most residential property falls into the C3 planning use class.
The C3 use class is now linked tightly to the definition of a House in Multiple Occupation under the Housing Act 2004. The definition now includes a specific section on interpretation making clear that a household is to be interpreted in accordance with that set out in s254 of the Housing Act 2004.
There is no maximum number of persons provided they form a single household. So any property that is not an House in Multiple Occupation for the purposes of s254 will fall into the C3 use class.
Note that this means any property which is an House in Multiple Occupation not just licensable HMOs. So three friends sharing a house will not fall into the C3 use category.
A C4 use class now also exists. 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 C4 class is specifically for HMOs. It uses the definitions of House in Multiple Occupation as set out by the Housing Act 2004 as its basis. Any HMO property, licensable or otherwise, will fall into this use class.
General Permitted Development
The Town and Country Planning (General Permitted Development) Order 1995 (GPDO) is designed to allow movement between some use classes without any form of planning consent being required.
It is designed to streamline the process further by allowing certain changes of use, even though those involve changes in use class.
After the 2010 election the incoming Conservative-Liberal Democrat government fulfilled a Conservative election pledge by amending the permitted development order to allow movement between the C3 to C4 use classes without planning permission.
This means that for a lot of smaller HMOs planning is not a serious obstacle.
The larger House in Multiple Occupation and Sui Generis Use
Some uses do not fall into any use class. This is known as sui generis use. It would be impracticable to have a use class for every contemplated use and so there are many property uses which are found within this generic category.
As there is no use class there is no automatic exemption from planning consent for movement into this category from an already extant use class or for a change between uses in this category.
Larger HMOs do not fall into the C4 use class and will be within the sui generis category. Therefore they may well need planning consent if they represent a material change of use of the property.
In each case this will depend on degree. So a change from C3 to sui generis may well be a change of use but a change from C4 to sui generis may not be if it is only a small increase in the number of occupiers.
Article 4 Directions
However, individual local planning authorities have the ability, as they do with all permitted development rights, to restrict their use in their sphere of influence by issuing a local planning direction known as an ‘article 4 direction’.
This essentially allows a local planning authority to undermine the operation of a permitted development order in its area by requiring planning consent anyway.
An increasing number of local authorities have made Article 4 directions in part or all of their area of responsibility in order to restrict movement of properties from the C3 to C4 use classes.
It should be remembered though that C4 use only permits occupation by up to 6 persons as an House in Multiple Occupation and so any HMO with 7 or more residents will require planning consent
Material Change of Use
For planning permission to be required there must be a material change of use of the property.
Contrary to the belief of many planning officers, a change in use class does not lead to the immediate presumption that there has been a material change in use, although it is indicative. It is debatable whether every conversion to HMO use is a material change in the use of the property.
A number of planning decisions call into question the assumption that a change in use from a single family dwelling to a House in Multiple Occupation is a material change in use and make clear that each case will need to be considered on its merits.
Most local authorities are fairly clear that a change from single use to HMO use is a material change but it will really depend on the local area, the exact uses in existence and contemplated and the specific planning policy in force in that area.
Where a change from C3 to C4 use is unlikely to have a significant impact then it may well be that a planning inspector will consider the change not to be material.
We will be looking next at the HMO Management Regulations.
Further HMO resources:
Advice: If you need some legal advice, for example if you have issues with your HMO tenants and need advice, you can use our ‘HMO Hotline‘ telephone advice service.
Training: Easy Law Training has regular workshops on HMO Law & Practice. You can read about these >> here.