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PCC Lose Significant Planning Appeal


Prompted by the unrepresentative  lobby group, the East St. Thomas Residents Forum, PCC took enforcement action against the institutional investment company that owned 6 HMOs occupied by 7 students. PCC argued that they were operating without planning permission.  The decision of the Appeal Judge went against PCC and could mean that many, many of their recent decisions need to be revisited.

Detail of the ruling 

The issue was that 3 properties had changed from C3 (normal family use) to Sui Generis HMOs (over 6 occupants) and another 3 had changed from C4 (3 to 6 occupant HMO) to Sui Generis HMOs without planning permission. The appellant argued that formal Planning Permission was not required.

Unless PCC take this to a higher authority there appear to be two key points from the successful appeal.

  • Conversion from a C4 HMO to sui generis 7 or 8 residents does not need planning permission. The appeal confirmed that adding a seventh or eighth occupant, ordinarily a different used class (sui generis), did not represent a material change of use as there was no perceptible difference in the way that the property is operated and therefore, planning permission is not required.
  • If it can be proved that the property was changed to an HMO (C4 or Sui Generis) over 10 years ago it does not need formal planning permission. It would appear unnecessary to prove actual continuous occupation by a particular number of occupants. If it looks like an HMO it is an HMO. This is contrary to previous advice from PCC which stated that a property would need planning. They have previously demanded proof of uninterrupted HMO use and failed to engage when we have tried to argue going back 10 years was unreasonable if not sometimes impossible.

The judgement does not say that a change from C3 to C4 is not a material change of use requiring planning permission. Unless you can prove the change occurred over 10 years ago you still need planning permission for a new HMO of any size.

It will take PCC some time to digest this result and review their policy towards HMOs. However, as things stand - the frequent rejection of applications for C4 HMO's to be enlarged to become sui generis is not in line with planning law based on the outcome of this appeal and PCC need to stop bringing these to the Planning Committee and then rejecting them.

It is regrettable that it took an institutional investor spending £200,000 on legal council to prove PCC were wrong. PCC also employed costly expert Council. We have to ask what hope there is for small private landlords who are treated unfairly by the Local Authority.

The appellant was also lucky that the person who managed the conversion to HMOs over ten years ago was available as a witness. Had this not been the case it is possible that 3 of the properties would have been forced to revert to family use despite costly modifications over ten years ago. When challenged by the Planning Authority you have to prove your are innocent, they do not have to prove guilt.

Our advice is still to retain all evidence of HMO occupation for ten years. Applying for a lawful development certificate (LDC) may be useful when you come to sell. Applying for dual use i.e. C3 + C4 or Sui-Generis, means you can let to a family one year and sharers the next without reapplying for permission.

See the full ruling report here:  https://pdpla.com/useful-documents-list/330-detail-of-student-cribs-appeal-against-pcc-hmo-policy 

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