We love a bit of case law. The High Court in London Borough of Brent v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 2051 (Admin) has recently (29th July 2022) considered whether a house in multiple occupation (HMO) is a dwellinghouse. In planning law, the term ‘dwellinghouse’ is used in many important and varied statutory provisions. It is readily accepted that a building in use as a Use Class C3 Dwellinghouse is a dwellinghouse.
Whether a building is a ‘dwellinghouse’ has varied importance throughout planning law. Some key ‘dwellinghouse’ provisions including (but limited to):
- Whether or not there is a need for planning permission for the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;
- Immunity from planning enforcement where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse (four years not ten years as with other changes of use);
- Whether varying permitted development rights, set out in the General Permitted Development Order (GDPO) are applicable to a property.
The Brent Case confirms that the meaning of a ‘dwellinghouse’ is wider than Use Class C3. It includes Use Class C4 and may also include large HMOs. If a HMO is a ‘dwellinghouse’ then it will have the benefit of many key statutory provisions from when planning permission is required to when planning enforcement can be taken as outlined above.
The main issue for the court in this case was whether an Inspector was correct in finding that the building in use as a small HMO (Use Class C4) was a ‘dwellinghouse’ and therefore benefited from the building extension permitted development rights for dwellinghouses in Part 1 Schedule 2 of the 2015 Order.
The court found that HMOs, including both small HMO (Use Class C4) and large HMOs (sui generis), are ‘dwellinghouses’ and that no error of law had been made by the Inspector in such finding (that the HMO was a dwellinghouse). In determining the meaning of “dwellinghouse” the Judge set out legal principles including:
- A dwellinghouse is a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (known as the ‘Gravesham test’);
- Whether any particular building is or is not a dwellinghouse is a question of fact; and
- A factual assessment of whether or not something is a “dwellinghouse” may require consideration not only of whether it provides the facilities needed for day-to-day private domestic existence, but also consideration of the actual use to which it is being put.
This indicates therefore that a building which, although possessing all those facilities, in mixed use by an occupier who lived in the upper part of the house while operating an estate agent’s in two rooms on the ground floor, was held on the facts not to be a dwellinghouse in Scurlock v Secretary of State for Wales (1976) 33 P&CR 202. Equally, a dwellinghouse converted for use as (for example) a hostel or a hotel would no longer be a dwellinghouse, as it would no longer allow for “private domestic” existence.
Despite this, a dwellinghouse would not lose its character as such simply because it was vacant, or a second home only visited at weekends or in a particular season. It could still be a dwellinghouse if it were put to use to house a company’s employees and their family during a tour of duty, or it was being used on a timeshare basis for holidays along with other owners.
This case has very strong implications for many property owners who, for example in owning a HMO, would have potentially been previously prevented from exercising permitted development rights through decisions of their Local Council. We have seen cases in London where, prior to this case, applicants have had to physically evidence through an enforcement appeal that alterations to a property were substantially complete whilst the site was in use as a single residential unit in order for the works to have been considered permitted development. This court decision removes such issues and will give more options for owners of such properties.
This does, however, then beg the question as to whether Council’s will seek to control development through other means such conditions removing permitted development rights for larger HMO proposals, holiday lets etc or Article 4 directions. This remains to be seen. As it stands, for property owners, this means that if the property is a dwellinghouse then they will benefit from the statutory provisions relating thereto such as a shorter four years’ period for planning immunity, dwellinghouse curtilage ancillary uses and permitted development rights which could be very valuable to some properties.
If you have properties which you already own, or ones which you are considering purchasing, we can check the site and outline the options to inform you of potential routes available within both permitted development and full applications in the form of a development appraisal. These are available at differing speeds depending when you need the report (perfect, for example, if you need a quick opinion on a property you need to make an offer on!) and are based on a traffic light system as to the potential, or not, of a site.
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