Q & A 11.2/10
A landlord has converted a house so that it looks like and could be occupied as several flats. However, he has moved five people into the property who occupy it as a house in multiple occupation (HMO). The council believes that a change of use to flats has taken place and wishes to issue an enforcement notice. Would this notice be well founded or could the owner successfully challenge it on appeal under ground (b) on the basis that the alleged use has not taken place?
Controls over HMOs are complex. Circular 03/2005 explains that neither "multiple occupation" nor HMOs are defined in planning legislation. Controls rely on the concept of a "single household" and "family" in making distinctions for land-use purposes. HMOs are sui generis and therefore do not fall within class C3 of the Use Classes Order 1987, which includes the use of a building as a single dwellinghouse. In this case, unless the occupiers are living together as a single family and sharing common facilities, the building will be either an HMO or subdivided into flats. In distinguishing between these uses, the key test is whether the units of occupation are self-contained with no communal facilities. In accordance with Doncaster Metropolitan Borough Council v Secretary of State for the Environment and Dunnill , the flats will only become separate dwellings when actually used as such. If the house was not previously in multiple occupation and no permission has been granted for such a use, then its use as either an HMO or self-contained flats will clearly constitute a breach of control. Where there is doubt over the correct allegation, separate enforcement notices or a notice alleging both uses should be issued. The approach taken by the planning system to HMOs should not be confused with that taken under the Housing Act 2004, where they are defined as including some self-contained flats for licensing purposes.
New use classes legislation has introduced "Class C4: Houses in multiple occupation". Do class C4 properties benefit from permitted development rights under class 1 of schedule 2 of the General Permitted Development Order 1995 (as amended)? Also, can an application for an extension to a C4 property be submitted using a householder form and would a design and access statement be required? MM
In the case of Gravesham Borough Council v Secretary of State for the Environment & Michael O'Brien  it was held that in assessing whether a property was a dwellinghouse one had to examine whether it had the facilities which might ordinarily be expected in a dwellinghouse. Within that context I would not consider a house in multiple occupation to be a dwellinghouse for General Permitted Development purposes and in my experience that view was taken before the recent changes.
The General Development Procedure Order 1995 (as amended) uses the same definition of "dwellinghouse" as the General Permitted Development Order 1995 does. Whilst applications relating to conventional dwellinghouses and, under the new provisions applicable from 6 April, flats generally do not require design and access statements, given that the same definition is used in both orders, I would consider a statement would be required for alterations to a C4 property unless the floor area was not increased. Similarly, as a C4 property is not a dwellinghouse, a householder form should not strictly be used for alterations to a C4 property, but I would suggest that, unless use of the wrong form causes particular problems, authorities should take a pragmatic view and process an application for a C4 property although it might be submitted on a householder form. JH.
I am carrying out an enforcement investigation into a property which is being used as a four-bedroomed house in multiple occupation and is considered to fall within the C4 use class. The property has been extended to provide an additional bedroom. Do dwellings falling within the C4 use class benefit from permitted development under class A, part 1 of the General Permitted Development Order 1995 (as amended)? RH.
In the case of Gravesham Borough Council v Secretary of State for the Environment & Michael O'Brien  it was held that in assessing whether a property was a dwellinghouse one had to examine whether it had the facilities which might ordinarily be expected in a dwellinghouse. Within that context I would not consider a house in multiple occupation to be a dwellinghouse for General Permitted Development purposes and in my experience that view was certainly taken before the recent introduction of the C4 use class.
It might seem anomalous that a property can switch between C3 and C4 uses without needing planning permission and gain or lose permitted development rights in the process. This, however, is analogous to the permitted development rights introduced for schools, colleges and universities and hospitals under the General Permitted Development (Amendment) (England) Order 2010, but not other D1 of C2 buildings respectively where "switching" could have a similar effect.
From your question it would appear the house has been extended to facilitate multiple occupation use. As this work was not in connection with dwellinghouse use, I consider this work would not be permitted development, though would of course only be expedient to take enforcement action if clear harm form the development could be demonstrated. JH.