The site and background
This case concerned a four-storey end-terraced house at Cross Flatts Parade in Leeds.
Planning permission had previously been granted for a change of use from a dwellinghouse to a house in multiple occupation within use class C4. That permission was lawfully implemented and the building was in use as a five-person HMO.
The owner subsequently proposed increasing the number of occupants from five to six by converting two lower ground floor store rooms into an additional en-suite bedroom. An application was made for a Certificate of Lawfulness to confirm that the proposed use of the house as a six-person HMO would be lawful.
The council’s refusal
The council refused to issue the certificate.
Although it accepted that there would be no material change of use, the council argued that the proposal was not lawful because it would be in ‘direct legal contravention’ of the earlier planning permission. The refusal relied on the fact that the approved plans for the original permission showed five bedrooms, and asserted that any deviation from those plans rendered the proposal unlawful.
The refusal did not explain how the proposal amounted to development requiring planning permission, nor did it identify any condition on the original permission that limited the number of occupiers.
The appeal case
The appeal focused on the correct legal test for applications for lawful development certificates.
It was explained that the appeal was not concerned with the planning merits of HMOs, but with whether the proposed use would be lawful if instituted at the time of the application. Once planning permission for the C4 use had been lawfully implemented, the lawful use of the building was as a house in multiple occupation for up to six residents, as defined by the Use Classes Order.
The appeal submissions demonstrated that the internal works to create an additional bedroom did not constitute development and that an increase in occupancy from five to six people did not involve a material change of use. It was also shown that the earlier planning permission contained no condition restricting the number of occupiers and that the condition requiring development to be carried out in accordance with the approved plans had been fully complied with at the point of implementation and imposed no ongoing restriction.
The inspector’s decision
The inspector allowed the appeal and issued the Certificate of Lawfulness.
In doing so, he confirmed that the assessment under section 195 of the Town and Country Planning Act 1990 is concerned solely with whether the council’s refusal was well-founded as a matter of law. He accepted that the proposed use would fall within use class C4 and that the effect of planning legislation is that the use of a house by not more than six residents as an HMO does not involve development requiring planning permission.
The inspector found that the condition relied upon by the council did not impose any continuing restriction on the use of the building once the original permission had been implemented. He therefore concluded that the council’s refusal was not well-founded and that the proposed use would be lawful.
The award of costs
A full award of costs was also made against the council.
The inspector concluded that the council had behaved unreasonably by failing to properly understand and apply planning law, and by unreasonably defending the appeal when it should have been clear that its case had no prospect of success. That unreasonable behaviour was found to have caused the appellant unnecessary expense, and the council was ordered to pay the costs of the appeal.
Why this case is relevant
This case illustrates a common area of confusion in lawful development certificate applications.
Once planning permission for a particular use has been lawfully implemented, the scope of that lawful use is defined by planning legislation, not by the internal layout shown on approved drawings, unless a condition expressly imposes an ongoing restriction. Where no such condition exists, changes that do not amount to development cannot be treated as unlawful simply because they differ from previously approved plans.
The award of costs also underlines the importance of councils applying the correct legal tests when determining applications for certificates of lawfulness, and of reviewing their position properly once an appeal has been lodged.
For a more detailed explanation of how planning law applies to houses in multiple occupation, including lawful development certificates and common points of confusion, see my separate guide to planning permission for HMOs and this article on when a HMO requires planning permission.
