In broad terms, Houses in Multiple Occupation – or HMOs – are commonly residential houses or flats which are shared by several tenants who do not form a single household (they are not members of the same family).

HMO from a planning perspective

In planning terms, the definition of a HMO is the same as is defined by S.254 of the Housing Act 2004, with the exception of the property being a converted block of flats – as defined by S.257 of the Act.

For the avoidance of doubt, the Act is also explicitly clear as to what is not a HMO. These are listed completely in Schedule 14 of the Act and are not limited to the following:

Why the need for HMOs?

In planning terms, there are two types of HMO – these being small and large. Small HMOs refer to those with 3 to 6 residents, and large HMOs refer to those which provide for greater than 6.

From a social standpoint, HMOs offer convenient and flexible living opportunities, particularly at times when certain life-factors demand such flexibility. They also offer relatively low rates which are favourable to tenants in places with high accommodation costs.

For developers, they can make great investment opportunities, with rental yields achieved in urban areas where a standard buy-to-let would struggle. They also offer resilience against rental void periods, and fare well in university towns and cities as being suitable for students living away from home and not in halls of residence. Further tips and advice on renting to students can be found in our blog “Renting to students : Tips for landlords“.

Why the need for planning regulation?

Ensuring your HMO, or prospective HMO purchase has the requisite level of planning consent can avoid both delay in the transaction process and eliminate the risk of planning enforcement action from the local authority. A valid HMO licence does not give you deemed planning consent.

Recently, we have received an increase in enquiries from clients who understand that it is not just a HMO licence that they need to obtain in order to regulate the use of a HMO. In some cases, we are called upon to deal with a HMO planning matter as part of a property sale where the absent planning consent has caused delay in the selling process. Having the correct planning consent in place can help speed up the sale process, and of course avoid the risk of planning enforcement action from the respective local planning authority.

In some cases, there is no need to regulate a change of use from a residential dwelling to a small HMO, since this change is permitted through permitted development rights. Schedule 1, Part 3, Class L of the General Permitted Development Order 2015 (as amended) allows the change from a residential dwelling to a small HMO and vice versa, subject to narrow exception criteria.

However, the use of permitted development rights to change a residential property to a small HMO may be withdrawn if an Article 4 Direction is in place. This direction relates to your property’s location, and specifically removes the respective permitted development right.

Article 4 of the General Permitted Development Order 2015, titled ‘Directions restricting permitted development’, provides power to either the Secretary of State, but more commonly local authorities, to remove certain permitted development rights from a particular area. This can either be a whole council area, a specifically defined area, or even multiple defined areas. If there is an Article 4 Direction in place which restricts the conversion of residential dwellings into small HMOs, then planning consent for the change of use will need to be obtained.

The National Residential Landlord Association estimates that there are around 80 council’s across England with HMO related Article 4 Directions in place.

As for large HMOs, in planning terms these fall under Sui Generis, or a class of their own in the context of Use Classes. The conversion of a residential dwelling to a large HMO is expected to require planning consent regardless of if there is an Article 4 Direction in place, this is because large HMOs aren’t covered by permitted development rights.

How can planning consent be obtained?

The most widely used routes to gaining consent in regularising the use of your HMO (providing it is not permitted using your permitted development rights) are summarised below:

Full planning consent

This is appropriate for when a small HMO is proposed in an area where there is a relevant Article 4 Direction in place or when a large HMO is proposed. Like any planning application, the proposed use of a HMO would need to conform with the respective development plan policies unless material considerations indicate otherwise. These development plan policies are guided by the National Planning Policy Framework in their making. However the NPPF is silent on HMO use specifically and instead limited to policy relating to ‘the size, type and tenure of housing needed for different groups in the community’. National planning guidance also provides little more than guidance on ‘Addressing the need for different types of housing’, which again omits any direct reference to HMO living.

In the absence of clear national policy direction, planning policies relating to HMO development therefore vary between different local authority areas, although some local authorities include them as part of planning policies relating to housing mix and type. Many local authorities therefore attempt to remove ambiguity with supplementary planning guidance (through Supplementary Planning Documents, or ‘SPD’s’) on how these policies should be interpreted in regard to HMO development.

These SPD’s generally advocate a theme whereby HMOs should not be overconcentrated within a given area, for example there should be no more than 10% of HMO properties within a radius of 50m. This is to ensure that a balanced and mixed community is achieved for existing and future residents, in such areas which may be considered threatened in light of a declining residential mix and the rise in so-called ‘studentification’.

On the flip-side, guidance may also accept that there is ‘no point in shutting the stable door after the horse has bolted’. Referring to circumstances where a proposal is made for a HMO within an area with already excessive levels of HMOs. In these exceptional circumstances, the character of the area may be considered to have changed so significantly that the existing residential dwelling use may no longer be appropriate for the area anymore. This ‘upper-limit threshold’ requires a strong justification to demonstrate that there is no longer a demand for the existing residential use which is proposed as a HMO.

In instances where the HMO already exists, a full planning application can be made retrospectively, subject to the same considerations as above.

Certificate of Lawfulness

In addition, where a HMO property already exists and requires lawful planning consent, the Certificate of Lawfulness route is also appropriate. This is sometimes referred to by acronym’s which confusingly all refer to the same thing, these being CLUED (Certificate of Lawfulness of Existing Use or Development), or CLU (Certificate of Lawful Use), or LDC (Lawful Development Certificate).

Introduced into the Town and Country Planning Act through amendments in 1991, a Certificate of Lawfulness does, in effect, what planning permission does. Not only does it provide immunity from potential enforcement, it makes a development or a change of use ‘lawful’.

However, these certificates are determined in very different ways to a planning application. Broadly speaking, to obtain a certificate of lawfulness for a change of use; in this case a residential dwelling to a HMO, you will need to either:

It may also be a good idea to apply for Certificate of Lawfulness even if the conversion could take place lawfully through permitted development rights. Particularly since the council may later enact an Article 4 Direction. Again, this will assist in the selling process and deflect any planning enforcement enquiries from the local council at a later date if so.

For a Certificate of Lawfulness to be granted, the evidence included as part of the application must be both ‘sufficiently precise and unambiguous’ to tip the balance of probability in the applicant’s favour. A council may wish to canvass for its own evidence, and if this happens, it must be shared with the applicant to enable them a chance to comment, particularly if the evidence may appear contradictory.

Finally, there is no defined set of sources of evidence to be included as part of an application for a Certificate of Lawfulness. However, in support of such applications relating to HMO uses, we have found the following to be useful when considering what to include:

The Planning Consultancy and Planning Legal team at Paris Smith are on hand to advise on planning matters relating to HMO use. Our planning lawyers are able to facilitate and prepare legal statements for any third party if required. In addition, we have lawyers with a wealth of experience in dealing with the purchase, re-mortgaging and sale of both commercial and residential property (including HMOs). They are also able to assist clients with all aspects of landlord and tenant work including new leases, renewals and assignments.