Re: C4 shared houses / HMOs- permitted development rights removed? - Public forum - Planning Advisory Service (PAS)

Planning permission will be needed for a material change of use from C3 to C4. A change of use from C4 to C3 is permitted developed following the amendments to the GPDO which took effect as of yesterday also.

My query is that it appears C4 HMO's would not benefit from householder PD rights (as they are not C3 dwellinghouses), and therefore any such properties now require consent for extensions and alterations.

I see what your saying. Having just read briefly SI 2010/654 I find no amendments relvent to use class C4 other than where a CoU is applicable. It is my conclusion therfore that a building classed as C4 still preforms the function of an ordinary dwelling house and is therefore still bound by Part 1 of Schedule 2 of the GPDO so minor extensions and alterations etc would still be premitted development. I'd like to know what others think though?

Oliver I do not subscribe to your view. HMO - C4, is not a dwellinghouse - C3. Therefore Part 1 of Schedule 2 to the T&CP(GPD)(Amendment)(No.2)(England) Order 2008 viz: "Development within the Curtilage of a Dwellinghouse" does not apply. This does not confer P.D. rights for HMOs.

Para 27 of Circular 05/2010 states that "The new C4 class covers small shared dwelling houses occupied by between 3 and 6 unrelated individuals who share basic amenities". Dwelling houses benefit from PD rights under Part 1 of the GPDO Schedule 1. It has to follow that dwelling houses within Class C4 benefit from PD rights. I would have thought that larger HMOs, although still a sui generis use, also benefit from PD rights, as they are , by definition, dwelling houses, as defined in para 24 of 05/2010, ie "buildings that ordinarily afford the facilities required for day-to-day private domestic existence".

Mark, I am glad your interpretation on this issue is the same. the basic matter of the fact in deciding whether HMOs afford PD rights comes down to the definitions and as you have said, the new C4 class covers small shared dwelling houses occupied by between 3 and 6 unrelated individuals who share basic amenities, which defines that the poperty is being used to perform a dwellinghouse function. To add to this, it should also be noted that for a property to be classed as an HMO it must be occupied as a remain residence (i.e. a place of living) which is the same function preformed by a dwellinghouse. It therfore has to follow that Class C4 benefits from PD rights under Part 1 of the GPDO Schedule 2. I have submitted a query to CLG on this very matter for further clarification and when I've had a response I will post it here.

CLG response: "As you are aware we cannot offer an interpretation of the law as that is ultimately for the courts. However our informal view is that the permitted development rights under Part 1 of the GPDO will apply to dwelling houses which fall within the C4 HMO use class except where they are specifically excluded by the 'definition' of dwelling house contained in the GPDO i.e. flats. With regards to HMOs which are considered sui generis the position in respect of permitted development rights under Part 1 of the GPDO has not been affected by the recent legislation."

Are Sui Generis HMO's considered to be a different use class from C4 HMO's. If so, would planning permission be required for change of use from one to the other? I ask this, because student landlords in my neighbourhood are further subdividing rooms in their HMO's in order to squeeze several extra tenants (more than 6) into each property. Can planners regulate the housing density of such HMO's?

"Sui Generis" is by itself another use class. The required norm is for planning permission to be granted to change to this class. Planners can already regulate the density of these kinds of HMOs outside of the 6th April 2010 legislation. Ask your local planning office if they have a policy for these kinds of HMOs.

I would be interested to know whether the views of Local Authorities / individuals on this subject have firmed up or changed since 2010. With the increase in size of permitted development extensions due to come in to force on the 30th of May, this matter will be of key importance. I am aware that a number of Authorities have taken the view that C4 properties do not benefit from householder permitted development rights, and that recent appeal decisions have supported this stance. For example: 2 Appeals at 92 First Avenue, Manor Park, London E12 6AJ Appeal A: APP/G5750/C/12/2179136 Appeal B: APP/G5750/C/12/2179140 Key sections: '12. Discussion took place at the Inquiry as to whether permitted development rights for dwellinghouses also apply to class C4 HMOs. The Use Classes Order makes a distinction between class C3 dwellinghouses and class C4 HMOs. Class C3 covers single households of various types and class C4 is specifically for HMOs where there are between 3 and 6 unrelated individuals. The fact that the GPDO specifically allows for a change between the two classes without the need for obtaining prior planning permission indicates that they are considered to fall into different categories. Circular 8/2010 - Changes to Planning Regulations for Dwellinghouses and Houses in Multiple Occupation notes that Class C4 HMOs can include flats and the GPDO specifically excludes flats from the permitted development rights accorded to dwellinghouses. 13. The Council submitted that it would be unlikely that the terms of the GPDO were intended to grant permitted development rights to some class C4 buildings and not others. This is a view that has not yet, as far as I am aware, been tested through the courts. However, taking account of all the above points, it seems likely that permitted development rights for extensions to single dwellings do not extend to class C4 HMOs. Therefore, there are no permitted development rights that would have allowed the construction of the extension while the building was in use as any type of HMO.'

Hi Jonathan, I've kept a record of the conclusions of all "LDC Appeal Decisions" since 2008 that relate to Part 1 of the GPDO. So far, I've seen the following 3 appeal decisions that support the assertion that a C4 house in multiple occupation (i.e. a "small HMO") does NOT benefit from Part 1 of the GPDO: APP/T5150/C/11/2160981 http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2160981&coid=33093 APP/G5750/C/12/2179136 http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2179136&coid=2113600 APP/X5210/X/12/2177760 http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2177760&coid=2166784 So far, I've not seen any appeal decisions that support the opposite assertion. In terms of other arguments (i.e. other than appeal decisions), I do appreciate the point raised above that the definition of Use Class C4 includes the term "dwellinghouse" - i.e. "Use of a dwellinghouse by not more than six residents as a “house in multiple occupation”". However, the counter-argument to this is that it's definitely possible for something to be referred to as a "dwellinghouse" in another part of planning legislation and not benefit from Part 1 of the GPDO. For example, for the purposes of section 171B of the TCPA 1990, and for the purposes of the version of Part 40 of the GPDO that was in force from 06/04/2008 to 30/11/2011, the term "dwellinghouse" includes a flat, which doesn't benefit from Part 1 of the GPDO. Furthermore, even though the phrase "HMO" includes the word "house", it's still accepted that a sui generis house in multiple occupation (i.e. a "large HMO") doesn't benefit from Part 1 of the GPDO. Thanks, Steve

Thank you for your response Steve. It looks like we have 3 formal Inspector's decisions supporting the view that C4 properties do not have PD rights for extensions and alterations, and the only statement which counters this being CLG's 'informal guidance' from 2010. On this basis I would think that most Authorities, if aware of the available information, would be likely to give weight to the three appeal decisions and determine that C4 properties do not have PD rights for extensions and alterations. It would be interesting to know which approach LPA's are following, and whether they are seeking to confirm whether a particular property is in C3 or C4 use when making decisions in relation to Lawful Development Certificates and enforcement cases? This will also be relevant to the new prior approval process as any C4 properties considered to not have PD rights for extensions and alterations would also not be eligible for the prior approval process.

Hi all, It appears that the second of the three links that I provided in my post above is no longer working - indeed appeal decision "APP/G5750/C/12/2179136" currently seems to have disappeared from the Planning Portal website. However, this appeal decision shared its decision notice with appeal decision "APP/G5750/C/12/2179140", meaning that the decision notice for the former can also be viewed via the following alternative link: http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2179140&coid=2113540 Thanks, Steve