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C4 HMOs and Article 4 Direction – Is Planning Permission Actually Needed?

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This article challenges the commonly held views about the need to obtain planning permission for investment properties. The intention is to highlight inconsistencies in widely believed interpretations of planning laws, in order to assist property investors. However, the matters discussed are subject to change as the Communities, Local Government Department, and councils publish their own guidance. Neither the partners nor any employee of APYork can accept any responsibility for any reliance based on the information provided and you should obtain your own independent advice, which may mean not relying on your local planning office.



Introduction

Most stumbling across this article have probably done so because they are interested in purchasing an investment property in York and are concerned because they apparently need planning permission for an HMO. With doubt about whether this will be granted, it would be helpful if it could be avoided.

For planning purposes, the definition of an HMO (a house in multiple occupancy) used to be different to that in the Housing Act 2004. Where a house was shared by unrelated occupants it would only have been an HMO if the occupants lived an almost separate existence in individual bed-sits, usually sharing some facilities such as bathrooms and toilets.

This all changed in 2010 when the Housing Act 2004 definition of an HMO was adopted for planning purposes with the new C4 planning class. This article does not intend to fully cover the definition of an HMO which is assumed is fairly common knowledge by now. To fully understand the current position you should read the article about the City of York Council 's Article 4 direction here:

Change to Planning Law for HMOs - City of York Council's Article 4 Direction

So for planning purposes you have two categories of HMOs; those with three to six occupants and those with more than six occupants. In theory, you need planning permission to convert a C3 property to C4 if an Article 4 direction is in force and, again in theory, have always needed permission for the larger houses. But is this really so?


Fundamentals of planning law

The fundamentals of planning are simple but are too often forgotten or misapplied. We need to proceed through a few, step by step.

First of all, one basic point is that planning permission is only required for "development". This definition includes material changes of use, so is not restricted to actual building work (Section 55 Town and Country Planning Act 1990) (TCPA).

Under the Town and Country Planning (Use Classes) Order 1987 (SI 764/1987) (UCO) a change of use within each class is deemed not to be development. This is the legislation that landlords relied upon until 6 April 2010 when changing a family house into an HMO. (Remember, that for planning purposes before this date you had to be converting the house into bedsits occupied by six or fewer occupiers, as shared student houses were not HMOs for planning purposes until then.)

Furthermore, the Town and Country Planning (General Permitted Development) Order 1995 (SI 418/1995) (GPDO) grants permission for certain specific changes between use classes.

A key point is that neither order actually states that permission is required for other changes between classes, although there is a commonly held misapprehension that permission is always required for such changes.

It is worth repeating these points again. You do need planning permission for "development", which includes a material change of use. You do not need permission for change of use within a class of use (UCO). Certain changes between use classes are specifically allowed (GPDO). However, there is no specific legislation that states permission is necessary for other changes between classes, unless of course there is a material change of use.

If you re-read the previous article referred to above, we have tried to refer to the need for planning only if there is a material change of use involved.


Changes in 2010

The UCO has been subject to several amendments. For residential landlords the most important of these took effect on 6 April 2010. The Town and Country Planning (Use Classes) (Amendment) ( England ) Order 2010 (SI 653/2010) effectively split the old C3 residential class into C3 dwellinghouses and C4 houses (small HMOs). It was from this point that the Housing Act 2004 definition of an HMO was adopted for planning purposes.

Under the above order, in theory all changes from C3 to C4 needed permission; changing back the other way was permitted development. Whilst retaining the new C4 category and the Housing Act 2004 HMO definition, The Town and Country Planning (Use Classes) (Amendment) (England) (No2) Order 2010 (SI 2134/2010) in effect restored the pre 6 April 2010 position. This later order, effective from 1 October 2010, granted permitted development each way between C3 and C4 status with, in theory, one exception – where an Article 4 direction under the GPDO was adopted.

Nothing in the 2010 legislation changes appears to have amended the basic point that planning permission is only required for "development", so must, it would appear, include physical building work and/or a material change of use. In fact, that is only to be expected as the requirement for "development" is in TCPA which, as an Act, is primary legislation. The 2010 changes are in the form of statutory instruments which, as secondary legislation, cannot amend primary legislation.

Now that there is the new C4 planning class, some might argue that movement between classes is indicative of a material change of use. Even if you accept this, it is not conclusive evidence and consideration must be given to whether the actual use has changed.


HMO advice unclear

The UCO amendment has been portrayed as meaning that planning permission is now required if the use of a family house changes to an HMO, or an existing small-scale HMO use expands so that more than six people are living there. But is this correct?

It is accepted that to be classified as an HMO under the Housing Act 2004, a property does not need to be converted or adapted in any way. Indeed, this is acknowledged in paragraph 15 of Circular 08/2010. However, planning permission is required for "development" so, to automatically require planning permission for the occupation by a few non-related sharers, must mean it is deemed that their occupation is materially different to occupation by a family. Can you see where this is heading yet?!


Planning case law

If your head is beginning to spin, it may help to consider the actual application of the law, rather than how a local authority may prefer to interpret it.

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 requires judgement from the local planning authority in the first instance. This might not be so bad if the local authority officers look at the actual facts only, without being influenced by the political preferences of the ruling councillors or being confused by prejudging when permission is required.

We have seen no reference to any suggestion that planning permission may not be required for a change of use from a C3 dwellinghouse to a C4 HMO in York after the local Article 4 direction comes into force. It seems safe to suggest that the opinions of local planning officials could be fixed.

A recent planning appeal casts doubt over the automatic assumption that planning permission is now required if the use of a family house changes to an HMO. That case concerned the use of a double fronted end of terrace house. In considering its use as an HMO the main concern was noise disturbance for the occupants of the property next door. Addressing this point the inspector stated:

"I consider the issue of noise would be little different to that associated with a typical family, and many bedrooms occupied by children and particularly teenagers contain televisions and audio equipment. Thus, whilst tenants may be inconsiderate on occasion, the same could be said of any type of occupier."

"There is no evidence to substantiate the generalised assertion that occupiers of a HMO are intrinsically more disposed to coming and going in the late evening or early morning hours than occupiers of other property types."

So it seems fair to suggest that whether a dwelling is occupied by a family or a number of unrelated people does not alter the nature of the use. This is obviously correct and will make it difficult to enforce against changes in occupation covered by the new use classes. If a family including adult children with cars occupies a house and then rent it out to a similar number of unrelated individuals, is that really likely to lead to a genuine change in use? The external impacts are likely to be largely the same.


Actual planning law

Now this may come as a surprise to many, but under planning law it is not an offence to use your property as you want without first obtaining planning permission. In fact, planning law prevents your local authority stopping you using the property in line with planning permission once it is granted. The extreme contradiction of the system is that if planning permission will be granted you do not need to apply!

The practical side of the legal position is that you can use your property as you wish. If the local authority finds out and decides that there has been a material change of use requiring planning permission, they will ask you to apply. However, before they can take action, the local authority also have to show you are causing harm to the amenity by the change of use, ie the property is causing more harm by its current use than in its previous authorised planning use. So on the whole, enforcement is very difficult.

If you fail to apply, the local authority then has to confirm its opinion and serve you with an enforcement order. Only if you fail to comply with the enforcement order are you in breach of the planning law.

Given the doubt about the need for planning permission to change from C3 dwellinghouse to a C4 shared HMO (or maybe even a small house converted to bedsits) it is tempting to turn the tables on the local authority. Therefore, rather than apply for planning permission, let your local authority consider the statute, case law, and decided planning appeals. If they then decide you need permission the process in the paragraph above applies.


Current position

So where does this leave York landlords? Well if you approach the City of York Council planning department for advice it is extremely doubtful they will suggest that change of use from C3 to C4 may not need planning permission. Furthermore, they are unlikely to be handing out copies of the ruling in the planning appeal referred to above in the interests of presenting balanced advice. Therefore, you may have to accept there is no free independent advice. This means you need to act on your own, with or without the benefit of independent professional advice.


The way forward

So it seems you have two options:

•  Accept you need planning permission and make a standard application. The advantage of this is there is no cost involved if you do not use a planning specialist to advise you. The disadvantages are the time delay which may affect a purchase and the fact that the matter is highly sensitive. From the experience of applications made shortly after 6 April 2010, early applications after 20 April 2012 are unlikely to go through on delegated powers where they might be decided more objectively by council officers, whatever their merits. Instead, the application is likely to go to a planning meeting for a ruling by what is a subcommittee of the full council who voted for the Article 4 direction in the first place. The implication of making a planning application is that you accept it is required, which it could be argued weakens your case.

•  The second option is to carry on as you wish. In effect this runs the risk of the council contacting you and deciding you need planning permission, but what is the downside? By adopting an Article 4 direction and requiring landlords to make planning applications the council takes little risk and forces compliance with planning laws that may not apply.

It may be that a local Landlords' Association could decide to help fund any appeal that appears to have some merit. Grounds for appeal could include that:

•  Planning permission is not needed;

•  City of York Council has not proved the need for an Article 4 direction at all (ignoring its own report dated 10 January 2011 that found no evidence or justification for an Article 4 direction);

•  City of York Council has applied an Article 4 direction too generally by specifying virtually the whole city rather than specific areas (compare with Newcastle council);

•  City of York Council has not consulted sufficiently by ignoring other options suggested by Landlords.


Summary

It will all depend on whether or not there is an Article 4 direction in place in future as to whether or not planning permission is needed.  Even then there must be a material change of use which will depend on the circumstances. Where an Article 4 direction is in place, if there is a material change of use, then planning permission will be needed.

However, for enforcement action, the impact (if any) on the neighbourhood of any change of use must be considered to see if the property is causing more harm by its current use than in its previous established use.


This article was written in March 2012 and certain points may be superseded.


References:

Circular 08/2010
Communities and Local Government Circular 08/2010 - Changes to planning regulations for dwellinghouses and houses in multiple occupation
GPDO
Town and Country Planning (General Permitted Development) Order 1995 (SI 418/1995
TCPA
Town and Country Planning Act 1990
UCO
Town and Country Planning (Use Classes) Order 1987 (SI 764/1987)



Constructive feedback on this information would be welcomed. If you have any comments please email admin@apyork.com giving details of your suggested corrections or additions and clearly stating your name and interest (eg tenant, landlord or planning advisor). Your comments will be considered when the article is next updated.