HMO C4 permitted development rights removed?

Happy July...where is the sun?!

I was recently asked to give my opinion on whether permitted development rights had been removed for C4 HMO Use Classes, particularly in the Nottingham area - things like small rear one storey extensions to an HMO (I am not talking about possible planning permission required to convert a C3 dwelling house into a C4 HMO). It is a rumour doing the rounds, due to some planning officers, trying to argue that a C4 HMO cannot be a 'dwellinghouse' under the Town and Country General Permitted Development Order 1995 (GPDO). Caveat - this is not advice and should not be taken as such or relied upon, professional advice should be sought in any specific case, it is my own personal view - My personal understanding is that permitted development rights still exist for C4 HMO property, so if you're not in the mood for a detailed read you can stop here! At this point I'll remind you what a C4 HMO is (some of you may spot the common mistake here!), with a direct quote from the Communities and Local Government Circular 05/2010:

Para 27: "The new C4 class covers small shared dwelling houses occupied by between 3 and 6 unrelated individuals who share basic amenities."

I have neatly highlighted the term dwelling houses above, for good reason, when it comes to permitted development rights outlined in the GPDO they relate only to dwelling houses - You can see what some planners may have been thinking... i.e. if they could argue that a HMO was not a dwelling house, then no permitted development applies. However, I reference Para 23 - 24 in the CLG Circular 05/2010 (linked above):

Para 23: "The term ‘dwelling house’ is not defined in this part of the UCO. The question of whether a particular building is a dwelling house will therefore depend on the facts of that case."

Para 24: "The common feature of all premises which can generally be described as dwelling houses is that they are buildings that ordinarily afford the facilities required for day to day private domestic existence." So, one may have a C4 HMO, which consists of a building with facilities to cook, wash and sleep in. This would, under the above guidance, therefore surely be enough facts to conclude that it is a dwelling house?

Some disagree... Well, the following is a nice example of a few planning officers having a little tiff about it all... http://www.pas.gov.uk/pas/forum/thread-maint.do?topicId=498472 Enjoy that? It is nice to see some sense by the end of it and some conclusions supporting that permitted development rights should remain for C4 HMO Use Classes.

One further source for any HMO landlords who come across this problem can be found on the Leeds Council website about the matter here, it says: "Householder permitted development rights only apply to ‘dwellinghouses’ and do not apply to flats/ apartments. Some small HMOs falling under the C4 use class are considered ‘dwellinghouses’. These properties benefit from householder permitted development rights. If you are unsure whether a property benefits from householder permitted development rights you should check with the Council’s Development Enquiry Centre. Large HMOs which fall within a ‘sui generis’ use (7 or more occupants) do not benefit from householder permitted development rights."

So, there we have it - don't we? Wouldn't it have been easy to finish there?! Yes, maybe. Unfortunately Communities and Local Government Circular 05/2010 was superseded by Communities and Local Government Circular 08/2010 in which a very subtle wording change has occured to the guidance of a definition of an HMO, which spoils some of the logic above: "the new C4 class covers small shared houses or flats occupied by between three and six unrelated individuals who share basic amenities."

Where has the term dwelling houses gone from Para 27 of Circular 05/2010? It has been removed! Oh dear, doesn't that mean therefore that there are no permitted development rights for C4 HMOs (which were formerly described as dwelling houses, but are now described as shared houses by the latest guidance) because the GPDO which sets out the permitted development rights for dwelling houses is for, well, dwelling houses? If you are confused by this point, so are many people! My answer is "maybe not".

A possible saving grace is that Circular 08/2010 still sets out the basic understanding that a dwelling house is still dependent on the facts in question and provides the "facilities required for day to day private domestic existence." So, although Circular 08/2010 removed the 'dwelling house' wording when describing a C4 HMO, it is important to note that said wording is only guidance and a house is a dwelling house depending on the facts in question. So, you'll probably want some reassurance?

It is Southampton Council's current view that:

"not all physical development works to a Class C4 (HMO) will require planning permission as this use benefits from certain “permitted development” rights" source

Nottingham Council seems to agree, see their guidance. Two important things are included in this:

1) "Although most external physical alterations to HMOs will require planning permission, some C4 HMOs that involve shared use of a dwellinghouse (but not flats) may benefit from those permitted development rights relating to dwellinghouses that are set out in the GPDO. However, where extensions lead to an increase in the number of occupiers, then a need for planning permission may still be triggered due to a ‘material change of use’ occurring." 2) "However, in the case of a property with an established C4 HMO use at 11th March 2012 [The date Article 4 came into force in Nottingham which removed permitted development rights to turn a C3 into a C4 HMO], it is unlikely that an increase in the number of occupiers from 3 persons up to 6 persons will trigger a need for planning permission."

I conclude therefore, that an alteration or enlargement of a property that is classed as a C4 HMO, should enjoy the same permitted development rights as a C3 dwelling house - even if the extension increases the number of occupants from 3 to 6 people.

I hope my opinion on the matter has been helpful - I apologise for the length of this one, but it is important to get all the facts down in some kind of chronological order. Feel free to comment, and also get all your HMO specific news from @HMOLandlords on twitter.