Trainee planning law solicitor, Bronwyn Jenkins, discusses HMOs and the ability to exercise permitted development rights.
Whilst this may appear an odd question, the answer could be highly relevant to people who own a house in multiple occupation (“HMO”) and are contemplating extending or otherwise altering it in the same way as an “ordinary” dwellinghouse (i.e., providing a porch, conservatory, outbuilding or other extension). Indeed, holding the status of a dwellinghouse means you could just benefit from permitted extension rights.
In the recent case of London Borough of Brent v (1) Secretary of State for Levelling up, Housing and Communities, and (2) Yehuda Rothchild, the High Court upheld an inspector’s decision to quash an enforcement notice that had been issued by the Council of the London Borough of Brent (“LBB”).
When the Defendant decided to extend a terraced house in Brent’s district, LBB issued an enforcement notice requiring Mr Rothchild to cease its use as flats/an HMO, remove internal partitions, demolish a rear extension and reinstate the premises to a single (or “ordinary”) terraced house.
The Defendant subsequently exercised his right of appeal against the enforcement notice pursuant to section 174 (2) of the Town and Country Planning Act 1990.
The appeal was pursued on five grounds but only grounds (b) and (c) of s174 (2) TCPA 1990 are relevant for current purposes.
The ground (b) appeal asserted that the alleged breach of planning control had not actually occurred. Namely, that there had been no material change of use of the property to a mixed-use as an HMO and flats. When considering this case, the Inspector found as a matter of fact that the property was in use as, and had been at all material times used as, an HMO – thus falling within Use Class C4. The ground (b) appeal was therefore allowed.
The ground (c) appeal was pursued on the basis that the single-storey rear extension amounted to permitted development under Class A, Part 1 of the relevant Order. LBB argued that the extension facilitated the unauthorised change of use and was not constructed in accordance with permitted development rights and the development was therefore unlawful.
Having upheld the appeal under s174(2)(b), the Inspector in considering the ground (c) appeal posed himself the question; ‘if permitted development rights did attach to the property as a dwellinghouse (Use Class C3), would they equally apply to the property in use a “Small HMO” in Use Class C4?’. Or put simply, is an HMO a dwellinghouse?
The Inspector decided that an HMO is, in fact, a dwellinghouse. The construction of a single-storey extension did not amount to a breach of planning control. The extension arising under the permitted development right could have been constructed whilst still occupied as a single-family dwelling or when already an HMO – in both scenarios there was a dwellinghouse with the benefit of the Class A permitted development rights. The Inspector, therefore, upheld the appeal and quashed the enforcement notice.
Following the Inspector’s decision, the LBB pursued a statutory challenge to the Inspector’s findings in the High Court. The relevant point here is that in considering the challenge, the High Court applied the test set out in Gravesham Borough Council v Secretary of State for the Environment (‘the Gravesham test’); the High Court concluding that an HMO is indeed a dwellinghouse and there was no basis to overturn the Inspector’s original decision on this point. A decision, no doubt, of considerable relief to Mr Rothchild.
The High Court’s decision is perhaps not surprising given the definition of Use Class C4 is the “use of a dwellinghouse by not more than six residents as a ‘house in multiple occupation’.
At its essence, the Order gives permitted development rights to a ‘dwellinghouse’, and the test of whether the property is a dwellinghouse is referable to case law – pertinently Gravesham.
Exercising permitted developments can add considerable value to property; equally, undertaking development not strictly in accordance with the relevant right may be the subject of planning enforcement action. Holmes & Hills has a specialist team of planning law solicitors who regularly advise on permitted development rights. If you are in any doubt as to what you propose to do (or have done) is permitted development, then we recommend that you seek independent legal advice and the Holmes & Hills Solicitors Planning Team will gladly assist with any specific enquiry that you may have.
Author: Trainee Planning Law Solicitor, Bronwyn Jenkins
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