Removal of planning condition restricting the use of new flats as HMOs
In this case, our client had obtained planning permission to convert a house in Ealing into two self-contained flats. The permission was granted, but the council imposed a condition stating that the new flats could not be used as small houses in multiple occupation (HMOs).
A small HMO (use class C4) accommodates between three and six unrelated occupiers. Under the General Permitted Development Order, houses and flats can normally change to C4 use without planning permission. The condition therefore removed a permitted development right which Parliament has granted nationally.
If a council wishes to remove permitted development rights more generally, it should do so by way of an Article 4 direction, supported by proper evidence and justification. Conditions must meet the six tests set out in national policy. They must be necessary, reasonable, relevant to planning and justified by the specific circumstances of the site.
In this case, there was no site-specific reason to remove the right. The officer’s report did not identify any particular harm that would arise from a C4 use, nor did it explain why this property should be treated differently from any other dwelling in the borough. The condition appeared to reflect a general concern about HMOs rather than a planning harm arising from this development.
We also pointed out the fallback position. As a detached house, the property could already have been used as a six-person HMO under permitted development without any application at all. Once converted into two flats, the practical intensity of occupation would not exceed what was already possible. There was therefore no clear planning justification for restricting Class L rights in this instance.
We applied to remove the condition and argued that it failed the national policy tests. The council agreed and the restriction was lifted.
This case is a reminder that councils cannot use conditions simply to reinforce a general policy preference. Where permitted development rights are removed without proper justification, that decision can be challenged.
If you are dealing with HMO restrictions, planning conditions or enforcement issues in Ealing, you may also wish to read our guidance on:
If you have had permitted development rights removed by condition, or are facing planning difficulties relating to HMOs, contact us for advice.
For a full guide to the planning rules for HMOs, including Article 4 directions and planning appeals, visit our Planning Permission for HMOs page.
