HMO Planning - Who Needs It?
In a bizarre decision at the January Planning Committee, Councillors may have bulldozed their own regulations and opened the way for HMO developments without the need for planning approval.
Carianne Wells of Applecore commented, "Anyone looking to increase their existing C4 HMO by 1 or 2 persons into Sui Generis use, has traditionally applied to the LPA (Local Planning Authority) for permission, at that point all the room size standards etc are assessed against policy. After yesterday it seems that both planning officers and committee members are in agreement for the first time that the increase is not a material change, and does not require planning."
What Happened
Historically, if you have a 3, 4, 5 or 6 bed HMO (a C4 property in planning terms) and you want to enlarge it to say, 7 persons, you would submit a planning application for 'change of use' from 'C4' to 'sui generis' (something bigger than or different to existing classifications) and the property would be debated at a Planning Committee with Councillors vexed over whether they could reject it based on the density of HMOs in the area (this is the 10% rule) or whether all of the room sizes and facilities meet the specifications.
Whereas the communal space required to get an HMO Licence reduces if the individual sleeping rooms are large enough, the Planning rules are actually more stringent in so far as they do not have this trade off of total space and the requirements for each room type are absolute with no discretion – so many existing HMOs would fail to get Planning approval if submitted today, even though they may well have been inspected and granted an HMO Licence by the Private Sector Housing team (a different part of PCC).
In this case, instead of asking for a 'change of use' and having his property reviewed against all of the density, space and other rules, the applicant instead applied for a 'Certificate of Lawful Development' for the proposed use as a 7-bed sui gen HMO which meant that instead of applying the density and space rules, "The sole issue for consideration in the determining of this Lawful Development Certificate application is whether the increase from six occupants to seven occupants in an existing Class C4 House in Multiple Occupation would result in a material change of use as defined under s55 of the Town and Country Planning Act 1990 and therefore whether planning permission is required."
On that basis, everyone either voted to approve or abstained and the application was granted.
Carianne added, "This affects landlords increasing by up to 2 persons in an existing HMO and means they need not apply for planning permission at all. As discussed, the licencing rules on communal areas for existing HMOs are assessed on a sliding scale, therefore if a property has a couple of rooms of over 10sqm, then a reduction in the communal area will be applied at the licencing stage. That wouldn't have been acceptable at the planning stage currently. If the planning stage is bypassed then this in my view, could result in a poorer standard of living in HMOs, than the level we have got to now. The crazy part of this is that enforcement are still recently threatening enforcement action if landlords don't apply, but then on the other hand, PCC now say they don't need planning permission. It will be interesting to see if there is a change of stance there.
Landlords needing some kind of evidence to prove the use is lawful, which is very likely if the property is on a mortgage, will have to apply for the certificate of lawfulness as the client did on Wednesday. This application then, as you correctly state, is solely whether the additional person within the existing HMO materially changes the use of the building. The 7th proposed bedroom could be anything…… It could be any size, shape or any amount of useable head height, and that cannot be assessed as part of the application, nor can the size of the communal area.
The other important consideration is that Landlords are more likely to want to go down the certificate of lawfulness route, rather than applying for Sui Generis use as by doing so, they also avoid having to pay any Nitrate contribution for the increased occupants. This equates to approximately £1500 per additional room but to apply as a certificate of lawfulness, the impact on the Solent Special protection areas also cannot be assessed, so there will be no contribution to pay. As it is a much cheaper option, I cannot see many landlords wanting to go down the traditional Sui Generis route if they no longer have to."
Conclusion
Is this a sea change / have councillors set a precedent which allows a streamlining of the whole development process. Will it result in many more rooms becoming available (which would be positive for tenants as it would translate to lower rents) or does it mean that standards will suffer? It could be that this was an aberration and councillors will vote differently next time – though applications of this form do not usually come to committee. Only time will tell – but if you are considering enlarging an HMO, do take advice as there may be a simpler route to the necessary approvals and permissions.