In my article in the November 2013 edition of this Newsletter, “To Permit or not to Permit?”, I drew attention to the current uncertainties as to whether permitted development rights applied to “dwelling-houses” used as Houses on Multiple Occupation (HMOs), whether within the new C4 Use Class or “sui generis”. It may be recalled that 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, a view supported by informal advice from the DCLG. The second is that a C4 HMO is not a dwellinghouse and therefore permitted development rights are not conferred, a view supported by several Planning Inspectors.
On 15th January 2014 the Planning Portal, somewhat unusually, published PINS Guidance Note 40/13, the advice now being given to inspectors on this issue. The link is http://www. planningportal.gov.uk/uploads/pins/advice_for_ inspectors/hmo_2014.pdf. Unsurprisingly, the Note adopts the first approach. It advises that “the test for whether a property is eligible to use the permitted development right is whether it can be considered a “dwellinghouse” within the context of the GDPO.” Unsurprisingly it goes on to opine: “This will depend on the facts of the case.” It goes on to explain: “Case law [Gravesham Borough Council v The Secretary of State for the Environment and Michael W O’Brien (1982) 47 P&CR 142  JPL 307] has established that the distinctive characteristic of a “dwelling house” is its ability to afford to those who use it the facilities required for day-to-day private domestic existence. Whether a building is or is not a dwelling-house is a question of fact”. Finally, it reminds that for the purposes of the GDPO a “dwellinghouse” does not include a building containing one or more flats, or a flat contained within such a building.
However, the Note leaves at large a wider and, perhaps, more troubling issue. If a dwellinghouse, which is used as an HMO, is to be so treated as having permitted development rights under Schedule 2 Part 1 Class A of the GPDO 1995 (as amended) is it then to be treated as a “dwellinghouse” for wider planning purposes? If so, then does the reduced immunity period of four years under s. 171B(2) of the TCPA 1990 for changes of use to a single dwelling-houses also apply, rather than the usual ten years under section 171B(3)? What does use as a “single dwellinghouse” now mean? Is it a contextual issue or one of law? How do beleaguered local planning authorities now respond? For in its expedient attempt to bring consistency in decision-making to the Planning Inspectorate, its Executive Agency, the DCLG has not closed but created a new direction of further uncertainty for the troubled and complex law surrounding HMOs. Only time and more appeal litigation will tell. Watch this space?