Bringing Houses in Multiple Occupation into Planning Law

22nd February 2007

Licensing of HMOs
HMOs and present planning law
Northern Ireland HMO planning law- a way forward?
The government's position on use class orders
An alternative way forward

1. Licensing of HMOs

The impact that HMOs and buy-to-rent houses have on neighbourhoods is well documented. This impact is particularly severe in towns and cities where there is a high level of student population, and the phenomenon of ‘studentification’ appears. This is now part of an inbuilt local economy in Southampton, where 70% of an estimated 28,000 students live in private rented accommodation. Southampton has a large number of specific student landlords, and the purchasing power of such landlords means that in ‘studentified’ areas of the city, many houses coming up for sale are purchased by student landlords effectively using the credit of previous purchases and further unbalancing the infrastructure of these areas.

The licensing arrangements put forward in the housing Act 2004 and their implementation with the introduction of regulations stemming from the Act may make some welcome difference in the management of such houses, now that the definition of an HMO includes student houses, whose inhabitants by and large live as ‘one household’, and not in separate flatlets. Indeed, the housing Act provides both a definition of an HMO, and a definition of a ‘family’ in the context of accommodation that has hitherto been lacking from any legislation on housing or planning hitherto. A number of local councils have picked up the opportunity offered by the legislation to go further than mandatory registration of HMOs of three stories or more, or five residents or over. Southampton City Council is in the process of submitting an application to the Secretary of State to be given the powers set out in the Section to licence all HMOs in the city as defined in the legislation.

2. HMOs and present planning law

However, none of this deals with one of the basic starting points of the development of HMO heavy areas, namely the change of use of traditionally occupied housing to use as HMOs. As matters stand, a Local Planning authority can do nothing about it, and only after change of use can the local authority as a housing body start to enforce standards through licensing. The cumulative affect of HMOs on a community or a street where large numbers have of houses have changed use is clear: but application by application, it is difficult in planning law to establish a principle of judgement on the merits of an application that reflects this, even if it were possible to make that judgement, which at present it is not.

It is clearly desirable to change this state of affairs: and the CLG select committee reflected this when it recommended in March 2007 that ‘the government examines whether local authorities need additional powers to address the problems arising in areas with especially large numbers of HMOs’. But how might one do it? The best attempt to make such a change is contained in the ‘Planning (Use class) Order (Northern Ireland) 2004’. Use Classes are derived from the Town and country Planning Legislation which most recently in England and Wales is the 1990 Town and Country Planning Act. The legislation enables the government to place orders specifying which classes of use will not require specific planning permission where the use of a commercial or industrial building or a house changes. Thus if a shop changes use within a class it will not require planning permission to do so: if the use change enters another class it will. Existing class use orders (in England and Wales, the Town and Country Planning (Use classes) Order 1987) place domestic housing essentially into one class (C3) regardless of the status of its inhabitants: the stipulation is that it is used as a dwelling house.

3. Northern Ireland HMO legislation – a way forward?

Prior to 2004, Northern Ireland Planning law operated on the same system but the 2004 order specified that a ‘house in multiple occupation’ could not, by definition be included in any class use category (i.e. it was placed in the so-called ‘sui generis’ uses). HMOs thereby, ceased to be regarded as ‘dwelling houses’ which were redefined essentially as housing occupied by ‘a single person or by people living together as a family’. The definition of a house in multiple occupation was set out in a 1992 order and amended in 2003 to read ‘a house occupied by more than 2 qualifying persons being persons who are not all members of the same family’, and in a subsequent clause, makes clear that ‘qualifying persons’ includes students.

Any change of use from a family home to use by that house as an HMO, where it is intended that least three people, not all of whom are members of the same family, should reside therefore needs planning permission in Northern Ireland.

It is not difficult to see the potential problems of interpretation, however desirable such a change might look to be in principle.

The key problem appears to be that, as an overall principle of planning law, the identity or status of the occupants of a building are not judged: it is the effect of the land use that is. The Northern Ireland Order, therefore seems to run into difficulty: it appears that a decision by a ‘family’ of husband and wife to take two lodgers would require planning permission, even if the internal and external appearance of the house in which they were living did not change at all: conversely, if two people living separately in a three person HMO decided to get married, the property would then no longer be an HMO and would (presumably) require planning permission to enter class C1 ‘dwelling house, even if the other inhabitant did not move out. I do not know how much case law has followed on the Northern Ireland Order, but I suspect that it would be a paradise for lawyers if much has taken place.

Clearly HMOs collectively do affect land use, as will particular HMOs, if for example a large family house is changed to occupation by –say- ten individual tenants. But not all HMOs fit this description, especially if a small family house does changes use but does not undergo any conversion to do so. The ‘land use’ effect of three tenants indeed would probably be no different than a husband, wife and two adult children living in the house.

Any order requiring change of use to an HMO to be subject to planning permission would therefore need to be compatible with Planning Law in distinguishing between the change of identity of the residents and the change of land use that such a change in identity might entail.

4. The government’s position on Use Class Orders

However, the present position of the Department for Communities and Local Government (or was in 2005 as ODPM) is that there is not really a problem in planning law, and that a change of Use Class Orders to those of Northern Ireland would not make a material difference. In a letter to Alan Simpson MP following correspondence in which he suggested that the Department adopt the Northern Ireland Use Class Order distinctions, the then Housing and Planning minister, Keith Hill MP suggested that:

‘Buildings which form houses in multiple occupation (HMOs) will generally remain outside the scope of the order. Therefore, as a general rule, planning permission will usually be needed before a dwelling house can undergo a change of use to an HMO, otherwise this would be a breach of planning control. It is for the local planning authority to determine whether a change of use has occurred on a fact and degree basis.

The essential element in determining whether a particular premises is a HMO is whether or not there is a single household occupying it. However, where there are seven or more occupants living together in a single household, but not living as a family, this could also be classified as an HMO. Where the occupants of a dwelling house do not live together as a single household, then it will be for the local planning authority to determine on a fact and degree basis, whether there has been a change of use from a dwelling house to an HMO’.

This advice is very far from reality, but reiterates the known position of where planning law stands – which is that, if a landlord purchases a family home and subdivides it into separate flats, then the planning authority may judge that it can intervene to require planning permission. If the landlord does not do so, however, and the new occupants live as ‘a household’ (i.e. sharing kitchen, bathroom, possibly locks on separate rooms but no separate ‘flatlets’) then in reality no local authority will seek to apply planning law, because they would fail: and of course, the vast majority of houses becoming HMOs fall into this category, particularly where they are designed to be let to students.

Anomalously, however, because the definitions of what a family and a household is have been changed and tightened under the 2004 Housing Act (and in particular, has included student houses as HMOs), the House could then be registered. As the letter points out, Planning law DOES, though, recognise the extent to which people living together not as a family will cause an effective change of use to occur, by specifying that, where seven or more people live together in this way, then a non-divided house can be subject to planning permission.

5. An alternative way forward

These considerations, do, however, point the way to a possible resolution of the powers that a local authority might have under Planning Law, so that they can take action where a house changes use, is undivided, and has fewer than seven occupants.

The simplest course of action would seem to be:

To amend the numbers of occupants above which planning permission is required from ‘more than six’ to ‘more than four’ in the schedule to the existing housing use class order. This would simply recognise that, in planning terms a real difference would be made by this number of occupants, and hence should be considered for change of use.
To incorporate into the existing Use Class Order the definition of ‘family’ that is set out in the Housing Act 2004.

This would, among other things, allow a ‘read across’ between Planning Law on housing and the licensing arrangements in the 2004 Housing Act. If, for example, a house with five inhabitants came to the attention of the local authority for licensing purposes, it should under these changes have received planning permission to exist, and if it has not then enforcement action can be taken.

This is the effect of the Houses in Multiple Occupation (Planning) Bill that I am proposing to introduce on May 22nd 2007, the text of which appears at appendix one. Whilst I recognise that this bill will not become law in its own right, I would suggest that its provisions might form a workable and less complex way forward than dividing use class orders would represent.

Alan Whitehead MP 18.5. 2007