Article 3 of the Use Classes Order 1987 (as amended) provides that the use of a building for any other purpose within the same class does not involve development of the land; and changes to the General Permitted Development Order 1995 (GPDO) made in April 2010 and October 2010 now allow a change from Class C3 (dwelling-houses) to Class C4 (houses in multiple occupation – HMOs) and from Class C4 to Class C3 without the need for planning permission. Since these changes an issue has arisen as to whether the new class C4 HMO attracts householder permitted development rights and therefore whether such C4 HMOs require consent for alterations and extensions.
There are two schools of thought. The first is that a building classed as C4 still performs the function of an ordinary dwellinghouse and therefore benefits from the permitted development rights of Part 1 of Schedule 2 of the GPDO so that minor extensions and alterations will not need a specific grant of planning permission. The second is that a C4 HMO is not a dwellinghouse and therefore permitted development rights are not conferred.
In support of the first school of thought formerly Para. 27 of Circular 05/2010 (cancelled and replaced by Circular 08/10) stated: “The new C4 class covers small shared dwelling houses occupied by between 3 and 6 unrelated individuals who share basic amenities”. Dwellinghouses were defined in Para. 24 of 05/2010 as “buildings that ordinarily afford the facilities required for dayto- day private domestic existence”. Also, for a property to be classed as an HMO it must be occupied as a main residence (i.e. a place of living) which is the same function performed by a dwellinghouse.
In support of the second view it is 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 Town and Country Planning Act 1990, and, for the purposes of the version of Part 40 of the GPDO that was in force from 6 April 2008 to 30 November.2011, the term “dwelling-house” included a flat, which does not benefit from Part 1 of the GPDO. Furthermore, even though the phrase “HMO” includes the word “house”, it is still generally accepted that a sui generis house in multiple occupation (i.e. a “large HMO”) does not benefit from Part 1 of the GPDO.
On 4th May 2010, in response to a question raising this specific issue, there was posted on a planning forum the following response from the DCLG:
“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
This view has been repeated subsequently by other DCLG officials in correspondence with enquiring local authorities. It has also been suggested that authorities should rely on their own legal advice but that, ultimately, the matter should be left to the courts to determine; as yet, there seems to be no reported High Court decision specifically on the point. However, recently, there have been a number of enforcement appeal decisions where members of the Planning Inspectorate have taken the view that PD rights do not apply to C4 HMOs. It is unsurprising, therefore, that a number of authorities have taken a contrary view to that of DCLG; but the divergence of views is leading to increasing uncertainty in the HMO sector and how it will continue to provide for this aspect of housing provision.
It is a fact of the planning legislative framework that the use of the term “dwellinghouse” is not consistently applied. Given that, as delegated legislation, the GPDO emanates from section 59 of the 1990 Act (being the current “Principal Act”) it also needs to be borne in mind that section 336(1) does not define “dwellinghouse”. Therefore, it is the definition found in the GPDO that must be strictly applied; and in this regard Article 1(2) specifically excludes flats from the definition of “dwellinghouse”. Thus, the definition of the word “flat” is: “a separate and self-contained set of premises constructed or adapted for use for the purpose of a dwelling and forming part of a building from some other part of which is divided horizontally”. With the relevant test being that of the form of construction and layout, then, if a dwelling does not occupy all floors of a building it constitutes a “flat” rather than a “dwellinghouse”. The classification of C4 HMOs simply covers a variety of building types and subdivisions based on their use and not their construction; so this aspect should not, in itself be determinative.
However, the physical distinction between the construction (and layout) of a “dwellinghouse” and “flat” is reflective of the different nature of the living environment (and enjoyment) arising from that different construction. Thus, the permissible ways in which a “dwellinghouse” can be enlarged, improved or altered (Classes A, B and C), the erection of a porch (Class D), the provision of any building, enclosure, pool or container or hard surface within the curtilage (Classes E & F) all reflect the construction characteristics and single household nature of a dwellinghouse (a single person or family (Class C3(a) or up to six residents under Use Class C3(b)&(c)); although it has to be acknowledged that the installation, alteration, replacement of a chimney, flue or soil and vent pipe (Class G) and the installation of microwave antenna (Class H) are less clear-cut. By analogy, these same basic considerations that exclude flats are equally capable of applying to HMOs. Historically, the Courts have also taken the view that a “dwellinghouse” should provide all the facilities for day-to-day private domestic existence. In contrast, an HMO does not necessarily result in that private domestic existence, particularly since HMOs cater for the many permutations of the private rented sector. Furthermore, it is a common characteristic of the nature of the dwellinghouse use that the emphasis is upon a single household whereas with HMOs it is upon unrelated individuals but who could still use communal facilities.
Finally, it is the role of the GPDO to provide permitted development rights for clear and distinct categories of development and their consequent forms of construction. In contrast Class C4 is concerned solely with use, and, of differing built forms of properties eligible for Class C4 HMO classification. Accordingly, as a matter of approach, it seems contrived and contrary to the legislative intentions that some properties within Class C4 could qualify and others could not.
With DCLG’s current lack of appetite to provide further legislative guidance, which altruistic authority, or frustrated landlord, will now seek a formal clarification through the High Court?