Proving Lawful HMO (C4) Use – Are You Guilty Until You Prove Innocence?
Some years ago, Portsmouth City Council (PCC) enacted an 'Article 4 Direction' requiring planning permission for new HMOs. This overrides the usual permitted development rights a landlord has to use a normal residential property as either a non-HMO, (C3 use class i.e. family type residence) or an HMO occupied by unrelated sharers (C4 use class). There are many HMOs that do not have or require planning permission as they have been in continuous HMO use since November 1st 2011 when the Direction commenced.
The planning enforcement team are currently writing to landlords asking them for proof of continuous use - do you know what you need to do? Have you kept records to show how your property has been used?
What is Happening?
The planning enforcement team are currently writing to landlords asking them for proof of continuous use. They also suggest you may wish to apply for planning permission for dual (C3 + C4) use or a Certificate of Lawful Use. The planning team are being prompted by information from the HMO licensing team, residents who suggest an HMO is unauthorised and the need to have a record of HMO density so they can correctly apply the policy to limit this density. They are attempting to ensure that new HMOs are not created without planning permission.
You can check if PCC know about your HMO here PCC HMODatabase.
What Should You Do?
If you have never applied for C4 planning permission, the property has been in continuous HMO use since November 1st 2011 and you have been asked to prove this fact what should you do?
1.Though you have not committed any offence do not ignore the request. You will only have more work to do in the end.
2.Proving continuous use over last 9 years may be difficult. Discuss the problem with the officer making it clear that continuous HMO use is a fact. Perhaps you could prove it but it will entail a lot of work.
3. Check that the officer has interrogated council tax records, they should do this first. If you have always paid Council Tax for the property this may suffice. If there have been continuous student exemptions even better. (If a lead tenant paid directly or was exempt this may not help).
4.Check they have looked at the electoral role. (This relies on tenants having registered)
5.Remember normally, they only need evidence that there were 3 unrelated tenants in occupation.
6.If you cannot produce satisfactory evidence, suggest that you would be prepared to make a 'Statutory Declaration', ie. a statement sworn on oath, stating that the property had been in continuous HMO use. You may be able to word this yourself but will need a short visit to a solicitor to witness your sworn declaration.
7.If the property had an HMO licence under Additional Licensing from around 2013 this should help.
8.You may well think this is not fair, and we would agree, but remember that the officer is only doing his job so there is no point in taking out your frustration that everyone in PCC seems to hate you on him or her.
9.The Planning team are not the same as the licensing team. You may need both a Licence and Planning Permission.
To quote the Assistant Director for Planning and Economic Growth- "Any landlord that is asked to provide evidence should discuss it with the officer that has raised the query to establish what information we (PCC) have, and what further clarification, evidence or corroboration is needed in each case."
Potential evidence of continuous HMO use-
Council Tax records (Ask the officer to check)
Various names on the electoral register (Ask the officer to check)
A continuous record of tenancy agreements for at least 3 unrelated people or one couple and one unrelated person.
HMO licence history
Photos, inventories, emails, letters, Utility bills you paid,
Records of bills paid to workmen who have carried out renovations or maintenance.
Statements from tenants.
Hopefully if you are polite and explain the situation a reasonable officer will not be too demanding.
What If You Do Nothing or Cannot Agree?
If you do nothing or PCC do not consider the evidence you provide to be sufficient, they may issue a 'Planning Contravention Notice' (PCN). You will be asked to fill in a complex form and prove you do not need planning permission by demonstrating the property was in continuous HMO use since November 1st 2011.If you cannot or refuse to satisfy them, they may issue an enforcement notice which you will have to appeal. This is a civil matter so you will have to prove that on the balance of probabilities the property was in continuous use as an HMO. It will be easier to cooperate.
The Advantages of Getting Planning Permission or a Certificate of Lawful Use.
If you sell the property you have evidence that it can be used as an HMO. This may add value to it.
You can apply for dual / flexible use (C3 + C4) so the property can alternate depending on market demands-
•You no not need permission to go from C4 to C3, only to go from C3 to C4
•Without dual use, if you, say, let to a family, you lose your C4 use and would have to reapply.
•If the density of HMOs in the vicinity is over 10% planning permission for a new HMO will not be granted but an existing HMO will be granted dual use as this is in the community's interests avoiding HMOs being left empty.
•The disadvantage of dual use is that after ten years the permitted use is restricted to the use it is in at that time.
•Not all Local Authorities will grant dual use Planning Permission.
You could also apply for a Certificate of Lawful Use but I can see little advantage. The fee and information required is the same. The application is dealt with by PCC's legal department and can take even longer than a planning application. The evidence requirements may be different.
Savvy landlords can apply themselves online or using a paper form or there are specialist planning experts we can suggest, also Alice Ibbotson who used to work in Housing Standards is now an independent consultant and will offer members a small discount on basic planning applications and can also prepare drawings if you do not already have them for licensing.
To apply online see https://www.planningportal.co.uk/info/200126/applications
NOTE the portal will make a £25 service charge to process the application online. You also need to register. Planning officers do not always mention this fee that does not go to PCC.
To get a paper form see https://1app.planningportal.co.uk/YourLPA/DownloadofflineForms
When asked what type of application select "Full Planning Permission" as there is not an option for a C3/C4 change of use. It is a bit of a palaver so you can also call PCC Planning admin on 023 92688822 and ask them to send you a form.
At our meeting on March 9th experts from Thorns Young will be giving advice on all planning issues. https://thornsyoung.co.uk
The Disadvantages
At this time the fee for either is £462 plus the cost of a house plan and location plan for full planning permission.
If the density of HMOs in the vicinity is already high you will not get permission to go from C3 to C4 + C3. To go from C4 to C4 + C3 you will need to prove continuous C4 use.
More Information & Help
For more information on HMO planning requirements see https://www.portsmouth.gov.uk/ext/development-and-planning/planning-applications/planning-houses-in-multiple-occupation
For HMO licensing see https://www.portsmouth.gov.uk/ext/housing/landlords/shared-houses---mandatory-licensing-of-houses-in-multiple-occupation
For help dealing with stress or depression see https://www.priorygroup.com
To complain to your local councillor about how landlords are treated or to praise the efforts of council staff see Find your councillors