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The C3/C4 Planning Conundrum

Planning

 When the Article 4 Direction was introduced in Portsmouth 12 years ago, we recommended that members with smaller HMOs change the planning status of their properties to mixed use (known as C3/C4) so that they could switch between family lets and HMO letting without breaking the rules. Those C3/C4 approvals were only for 10 years (though many were not told so at the time) – but now, when owners come to renew, many are getting confused as you need to apply for planning permission to change from 'mixed use C3/C4' to 'mixed use C3/C4' which appears illogical.

What Are The Rules? 

In most of the country a landlord can alternate between renting to 3 or more sharers (HMO / C4 use class in planning terms) and an individual, two unrelated persons or a family (C3 use) without planning permission. To control HMO development Portsmouth applied for an Article 4 Direction. This overrides the normal rules and means throughout Portsmouth you can go from an HMO to, say, family use without permission but to create a new HMO you do need planning permission. Planning permission is required for certain changes of use even where no alterations are made to the structure. It takes about 8 weeks to get permission.

If the property has been in continuous use as an HMO since the Direction came into force in November 2011 it has 'deemed consent', this means it is considered to have permission even though it has no piece of paper or record to that effect. It could be asked to prove continuous use perhaps by producing 10 years' worth of tenancy agreements, by enforcement officers. (Unreasonable but they appear to have the law on their side).

They also produced an SPD or Supplementary Planning Document which laid out the rules which the local planning team should use to determine whether an application for an HMO (C4 status/usage) could be approved or not. This SPD stipulated various restrictions including, for example, no more than 10% HMO's within a 50m radius. These 2 documents combined have made it very difficult to create new HMO's, especially in the south of the city which is why so many developers are turning small HMO's into large ones as that is the only way the current high demand for shared accommodation can be met.

It is not a regulation it is guidance that carries weight in decision making. 

What Were The Options? 

When the Article 4 Direction was introduced in Portsmouth 10+ years ago, we recommended that members with small or medium HMOs (as opposed to Sui Generis HMOs with 7 or more occupants) consider applying for dual C3+C4 use so that they could switch between family lets and HMO letting without breaking the rules. This enables them to be protected should demand change as it did then and is doing now. Those C3+C4 approvals were only for 10 years (though many were not told this at the time). To retain that flexibility, you need to apply again. At that time there was no charge, now there is the standard fee of £462 for a "full' planning application". Without dual use planning permission at the end of 10 years the property only has permission to be used in the way it is being used when the 10 years is up.

Our original guidance on the topic can be seen here:  Guide to Planning Applications for New HMOs - Portsmouth and District Private Landlords Association (pdpla.com)

What Is The Problem Now? 

There is a process (that uses the standard planning permission set of forms and price) to request a change of use from family home (C3) to mixed use (C3/C4) and the same process works to change defined use from HMO (C4) to mixed use (C3/C4),

What you have to do, if you wish to keep the flexibility at the end of 10 years, is to apply again for change of use to 'Mixed use C3/C4' even though that is what you have already. If you are still within the 10 year period since you last obtained 'Mixed use C3/C4' it should not matter whether the property is currently let as an HMO (C4) or not (C3) – however, if you allow the 'Mixed use C3/C4' to lapse and then apply to renew it, you may well be asked to prove that the property was used solely as an HMO since the Article 4 Direction was introduced in 2010/11 which is likely to be a problem.

So if you need it – apply before the existing 'Mixed use C3+C4' use class expires.

What You Need To Do.. 

If you already have C3+C4 dual use permission.

For many members their dual (C3+C4) planning permission is coming to an end. As long as the property is still being used as an HMO there should be no problem. You fill in a standard 'full' planning application stating under "Description of the Proposal" Continued use of property for purposes falling within Class C4 (house in multiple occupation) or Class C3 (dwelling house)You can apply before your existing dual use [1] expires or after but the longer you leave it the more proof you will need that the C4 HMO use has not lapsed. Apply here http://www.planningportal.gov.uk/ You will need a site plan and floor plans. They are more fussy than they were 10 years ago.

A tenancy agreement with 3 or more names on it or 3 separate agreements will be required to prove HMO use.

Some members have had very confusing advice implying they only need a 'Certificate of Lawful Existing Use' (CLEU). This is only useful to prove that you have HMO permitted use, say, if you are selling the property. As soon as the property is used for a family let the freedom to relet as an HMO will be lost unless you have the dual use permission, even if you have a CLEU.

You have an HMO with no formal C4 or C3+C4 planning permission

Hopefully there has been no interruption in the use of the property as an HMO since November 2011. You have 'deemed consent' and do not need to do anything. You should keep tenancy agreements to prove this is the case.

If you are planning to sell as an HMO you are advised to apply for a CLEU It costs £259. (You follow the 'Lawful Development' procedure.) The purchasers solicitor should ask for it or other proof.

If you wish to rent to a family within the next 10 years and retain the ability to use it as an HMO again after that you should apply for a "Change of use from house in multiple occupation (Class C4) to purposes falling within Class C4 (house in multiple occupation) or Class C3 (dwelling house)" using the standard application form. Fee £462. Apply herehttp://www.planningportal.gov.uk/You will need a site plan and floor plans.

You will also need to prove that the property has been used as an HMO since November 2011. Tenancy agreements with 3 or more names, or 3 separate agreements is the usual proof. Other options may be acceptable to the case officer. We would like to discuss these requirements with Planning management so watch this space for any updates.

If you are never going to use the property as an HMO again no action is required. BUT see the note below.

Applying for permission for a new HMO

Applying for permission for a new HMO (C3 to C4 or C3+C4) in Portsmouth is highly problematic depending on the location and whether it meets the highest HMO standards in the land. Decisions are based on the Supplementary Planning Document (SPD). See links below.

If you will have 5 or more occupants, you will also need to apply for a licence. The standards are again very high and they are being reviewed. PCC are considering licensing all HMOs in the future.

Links to useful documents

Basic HMO planning information

https://www.portsmouth.gov.uk/services/development-and-planning/planning-applications/planning-houses-in-multiple-occupation/

Supplementary Planning Document (SPD) gives advice and guidance on how applications are assessed. This document changes and it gets more difficult each reissue.

https://www.portsmouth.gov.uk/wp-content/uploads/2022/02/Houses-in-multiple-occupation-HMO-spd-Accessible.pdf

The planning application process starts here-

http://www.planningportal.gov.uk/

The guide to HMO planning we produced in 2012. Forms and links have changed but the basic principles are not very different.

Guide to Planning Applications for New HMOs - Portsmouth and District Private Landlords Association (pdpla.com))

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