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Successful Appeal Against New HMO Legislation

Wednesday, July 21, 2010 Posted in: Property Market Landlords

A recent planning appeal decision has, according to some commentators, further reduced the impact of the HMO planning instrument of 6th April. Writing in Planning Magazine, Stephen Ashworth explains use classes order rules only require permission for “development” that includes material changes of use and that the legislation says a change of use in each class is deemed not to be development. 

As already reported, in April, the C3 usage was effectively split to create a new class C4, to encompass HMOs as defined by the 2004 Housing Act. Councils have widely interpreted this as meaning new HMOs switching from C3 use to C4 use need planning permission. It would appear that the legislation does not afford that permission is required for changes between use classes, although there is a commonly held misapprehension that permission is always required for such changes. 

Mr. Ashworth cites a government circular (05/2010) to support his view, quoting the document “simply notes that planning permission ‘may’ be required if there is a material change when a property changes between different use classes”.  A recent planning appeal decision (DCS Number 100-067-072) concerned continued use of a home as an HMO. Mr. Ashworth goes on: “The inspector found no evidence to support the assertion that HMO residents are intrinsically more disposed to make more noise than occupiers of other property types, particularly families with children. “Whether a dwelling is occupied by a family or a number of unrelated people does not alter the nature of the use.”

He then contends that; “This view is plainly right and will make it difficult to enforce against changes in occupation covered by the new use classes. “If a large family including adult children with cars occupy 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.” 

Will Oxford City Council continue to insist that no further planning permission will be granted in St Clements and East Oxford against a background where a successful appeal (and application for costs) might end up costing them a lot of money!!

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